LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Mrs Kikelomo Kola-Fasanu VS Prestige Assurance Plc

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: APRIL 25, 2018

 

SUIT NO. NICN/LA/25/2016

 

BETWEEN

Mrs Kikelomo Kola-Fasanu-Claimant

 

AND

Prestige Assurance Plc                                                        -Defendant

 

REPRESENTATION

  1. B. Williams, with F. B. Ukadike, for the claimant.

Olusina Sofola, SAN, with A. T. Oloyede, for the defendant.

 

JUDGMENT

  1. The claimant filed this action on 19th January 2016 vide a General Form of Complaint accompanied by the statement of facts, list of witness, written statement on oath, list of documents and copies of the documents. By an amended complaint dated 19th October 2017, the claimant is claiming the following reliefs:
  • A declaration that the defendant’s purported Letter of Termination of Employment dated 12th January, 2016 against the claimant is wrongful and constitutes permanent loss of employment.
  • An order of this Honourable Court directing the defendant to retract the termination letter and accept a letter of retirement from the claimant and for the defendant to pay the claimant her full benefits in the sum of N20,518,206.00 for the twenty years she had been in the defendant’s service.
  • A declaration that the defendant’s wrongful termination of the claimant’s employment has frustrated her repayment obligations under the Housing Loan and Deed of Legal Mortgage.
  • A declaration that the staff pay slips for the month of December 2015 showing the deduction from the Building Loan in the sum of N345,708.79 and a unilaterally reduced loan periodic payment schedule from 16 years repayment timeline to 13 years repayment timeline by the defendant contrary to the mutually agreed monthly deductions of N296,519.00 and 16 years prepayment timeline between the claimant and the defendant in July 2013 constitute a flagrantly breach of the extant stipulations/terms of the Housing Loan and Deed of Legal Mortgage.
  • A declaration that the defendant cannot resort to self-help to repossess, auction, sell, dispose of or otherwise deal with any right, title, or any interest or advertise for sale the claimant’s property at House 2, Hon. Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos State.
  • A declaration that the defendant owes the claimant the sum of N20,518,206.00 being gratuity computation for 20 years equivalent to 200% salary and leave entitlements as indicated in the defendant’s letter dated 21st January, 2016.
  • An order of this Honourable Court granting special damages in the sum of N7,486,475.00 against the defendant being the gratuity owed to the claimant from 12th day of January, 2016 to 30th of June, 2026 calculated based on 100% of her basic salary, transport, housing and lunch voucher as at the time of retirement.
  • An order of this Honourable Court granting General damages in the sum of N50,000,000.00 against the defendant for flagrantly breaching the Housing Loan and Deed of Legal Mortgage Agreement by unilaterally varying, importing and enforcing alien terms outside of the Housing Loan and Deed of Legal Mortgage; for abrupt termination of the claimant’s employment leading to permanent loss of employment and an indelible stain on her hard earned professional integrity in the society; and for the immensely suffered psychological trauma and battled depression due to the permanent loss of payment.
  • An order of this Honourable Court directing the defendant to issue career reference report to the claimant upon request.
  • An order of perpetual injunction restraining the defendant by itself, its privies, staff, assigns, agents and officers from entering into possession, auctioning, selling, disposing of or otherwise dealing with any rights, title, or interest or advertising for sale the claimant’s property at House 2, Hon. Yahya Adeniyi Dosunmu Close, Off Ajiran Road, Agungi, Lekki, Lagos State.

 

  1. In response, the defendant filed its amended statement of defence and counterclaim (together with the list of witnesses, witness statement on oath, list and copies of documents to be relied on at the trial), claiming the following reliefs against the claimant:
  • A declaration that by virtue of the termination letter dated January 12, 2016, the claimant’sappointment with the defendant was validly and lawfully terminated.
  • A declaration that by virtue of item six (6), under sub-section 9.1 of Section 9 of the Prestige Assurance Plc Staff Handbook, the claimant is mandated to hand over all companypropertyinher possession upon leaving the company.
  • A declaration that the claimant’s continued custody of the company car, a Hyundai Jeep, withRegistration Number GGE 342 AV is unlawful and illegal.
  • An order of this Honourable Court mandating the claimant to hand over forthwith the company car, a Hyundai Jeep, with Registration Number GGE 342 AV, to the defendant unconditionally.
  • Damages in the sum of N50,000.00 (Fifty Thousand Naira) monthly starting from the 12th of January, 2016 when the claimant’s employment was terminated till the date judgment is delivered in this suit for unlawful and illegal usage of the defendant’s vehicle by the claimant which has depreciated its value.
  • Damages in the sum of N50,000.00 (Fifty Thousand Naira) and an addition of 50% interest from the date judgment is delivered in this suit till the date the claimant finally hands over the vehicle to the d
  • Forfeiture of the Mortgaged property measuring 354.689 square metres together with its appurtenances buildings, fixtures and fittings covered by Deed of Assignment dated 4th April, 2014 and registered as No.4 Page 4 in Volume 2482 and situate at House 2 Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos State to the defendant for the default in the payment of the loan granted to the claimant.

 

IN THE ALTERNATIVE TO PARAGRAPH G ABOVE

 

  • An order directing the claimant to pay the sum of N16,502,877.00 (Sixteen Million Five Hundred and Two Thousand, Eight Hundred and Seventy-Seven Naira)only being the remaining sum due under the Mortgage agreement between the claimant and the defendant back to the defendant in addition to 50% interest from January, 2016 when the claimant stopped paying till the date judgment is delivered in this suit.
  • 50% interest until the debt is finally liquidated.

 

  1. In reaction, the claimant filed an amended reply to the defendant’s statement of defence and defence to the counterclaim, a further statement on oath and defense to the counterclaim, list of additional documents and copies of the additional documents.

 

  1. At the trial, the claimant testified on her behalf as CW tendering Exhibits C1 to C29. Exhibit D1 was also tendered through CW during cross-examination. Mrs Eunice Olufunmilayo Aina, an accountant with the defendant, testified for the defendant as DW tendering Exhibits D2 to D21. At the close of trial, parties filed and served their respective final written addresses. The defendant’s final written address is erroneously dated 8th January 2017 but filed on 9th January 2018, while the claimant’s is dated and filed on 26th January 2018. The defendant’s reply on points of law is undated but filed on 9th February 2018.

 

THE CLAIMANT’S CASE

  1. To the claimant, she was the former Assistant General Manager I (CFO) in the Accounts Department of the defendant and had applied for Housing Loan and the defendant approved same in the sum of N42Million to be recovered through monthly salary deductions in the sum of N296,519.00 for over sixteen (16) years at an interest rate of 4% per annum starting from July 2013. The Deed of Legal Mortgage was executed under seal between the claimant and the defendant pursuant to the Home Loan facility wherein it was mutually agreed in ratio 1 at page 3 of the Deed of Legal Mortgage between the claimant and the defendant that the claimant will liquidate her indebtedness through deductions from her salary with the defendant. The defendant unilaterally increased the deduction from the Building Loan from N296,519.00 to N345,708.79 and unilaterally reduced the loan periodic payment timeline from 16 years to 13 years contrary to existing Housing Loan and the Deed of Legal Mortgage under seal where parties mutually agreed on N296,519.00 monthly deductions from her salary for 16 years repayment timeline.During the September 2015 accounts closing in readiness for the interim audit, the claimant advised the Managing Director (MD), Dr Baila Swamy, of the need to include all large foreign facultative and Dana Aviation claims into the 2015 Accounts as presented to the Board Establishment Committee at the meeting of 2nd September2014 for true and fair presentation but this advice was vehemently rejected by the MD, implying that the claimant wants to create problem for the defendant who needs to launder its image before the shareholders and other stakeholders since the company had for previous years not declared dividend. That the MD consistently held official meeting without calling the claimant to attend and instead invited her subordinate. That in order to sideline the claimant in her official capacity, the MD began passing official correspondence directly to her subordinates in order to undermine her authority. That in view of this, the defendant vides the purported Letter of Termination of Employment dated 12th January 2016 informed the claimant that her services are no longer required and her employment with the defendant terminated with immediate effect. The defendant equally notified the claimant that her allowance and indebtedness to the defendant will be calculated and paid/recovered (as the case may be) by the Accounts Department.Section 9.7 of the Employee Handbook states that the defendant may at any time terminate the employment of a member of employees if found in breach of any of the company’s rules and regulations or the employee is found to be incompetent or not performing.That the purported letter of Termination dated 12th January 2016 did not disclose that she breached any of the company’s rules and regulations or that she was found to be incompetent or not performing as stipulated in section 9.7 of the Employee Handbook.To the claimant, the permanent loss of employment has put the claimant in a predicament of having to fulfill a contractual impossibility; considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the defendant, has been abruptly severed.

 

THE DEFENDANT’S CASE

  1. To the defendant, the claimant during her employment applied for a loan from the defendant in the sum of N45,000,000.00 (Forty-Five Million Naira). That contrary to the laid down procedure and rules of the defendant as stated in section 6 of the Staff Handbook of the defendant, the claimant processed the loan herself as is shown in Exhibit D1 and in so doing did not comply with conditions and procedure set out in section 6 of Exhibit C5.Subsequently, that the sum of N42,000,000.00 was given to the claimant as a housing loan and pursuant to this a Deed of Legal Mortgage was executed by the parties, the Deed is Exhibit C11. That the issue of the non-compliance with the rules of the company relating to the processing of a loan led to the exchange of correspondences between the claimant and the defendant concerning the propriety of the loan and the sum granted as shown in Exhibits D2 to D16.That the claimant’s employment with the defendant was subsequently terminated by a Letter of Termination of Employment dated 12th January 2016 and her entitlements which include three (3) months’ salary in lieu of notice were assessed accordingly in the claimant’s favour. That the claimant had been paying back the loan granted to her since the 26th day of July 2013 up to the month of December 2015 when she stopped paying;thus, the loan has not been fully liquidated by the claimant.That the total outstanding sum of Housing Loan/indebtedness of the claimant to the defendant as at the 12th day of January 2016 is in the sum of N16,502,877 (Sixteen Million, Five Hundred and Two Thousand, Eight Hundred and Seventy-Seven Naira) only.Also, that the claimant is in possession of the defendants Hyundai Jeep, with Registration Number GGE 342 AV and has refused to hand over possession, contrary to the defendant’s laid down rules which provides that all company property must be returned by an employee who is no longer in the service of the defendant.

 

THE DEFENDANT’S SUBMISSIONS

  1. The defendant submitted four issues for determination, namely:
  • Whether or not the termination of the claimant’s employment by the defendant is wrongful.
  • Whether or not the claimant is still indebted to the defendant by virtue of the Housing loan taken by her from the defendant.
  • Whether or not the default of payments due under the Housing loan by the claimant for more than three consecutive months amounts to a breach which enables the defendant to sell the Mortgaged property and recover its debt.
  • Whether or not the claimant can lawfully hold on to the defendant’s Hyundai Jeep with Registration Number GGE 342 AV.

 

  1. On issue (1), the defendant submitted that the position of the law is trite that an employer can terminate the employment of his employee at any time and for any or no reason at all, citingIdoniboye-Obu v. NNPC[2003] LPELR-1426(SC),Eze v. NAMA &ors[2016] LPELR-41453(CA),Oforishe v. Nigerian Gas Co. Ltd[2017] LPELR-42766(SC),Famakinwa v. T.A Nig. Plc[2007] WRN (Vol 18) 36 CA and Arinze v. First Bank of Nig. Ltd[2004] 13 NWLR (Pt. 888) 663 at 673 – 679;[2004] 5 SCNJ 183. That it can be seen that the defendant in this case had the power to terminate the employment of the claimant at any time and did not need to give reason as to why the claimant’s service was no longer needed. Given the claimant’s submission that her termination was wrongful, the defendant proceeded to ask when exactly a termination can be deemed to be wrongful. In answer, the claimant cited section 11(1) of the Labour Act Cap L1 LFN 2004, which provides that either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party; and section 11(2) of the Labour Act 2004, which provides that the notices to be given for the purposes of section 11(1) shall be:
  2. One day, where the contract has continued for a period of three months or less.
  3. One week, where the contract has continued for more than three months but less than two
  4. Two weeks, where the contract has continued for a period of two years but less than five years; and
  5. One month, where the contract has continued for five years or more.

Section 11(6) of the Labour Act 2004 on its part provides that either of the parties to a contract of employment can waive his right to notice on any occasion, or can accept payment in lieu of notice.

 

  1. To the defendant, from these statutory provisions, it is apparent that the procedure for termination is simply stated, and in this instant case, the claimant was entitled to a one month notice or payment in lieu of notice, citing section 9.7 of the Staff Handbook, Exhibit C5, which provides that the defendant can”terminate the employment of a member of employees if found in breach of any of the Company’s rules and regulations or the employee is found to be incompetent or not performing”.That the claimant was paid three months’ salary in lieu of notice as portrayed in Exhibit D20, which is even a surplus payment compared to the one specified by law and the Staff Handbook, Exhibit C5;thus one cannot overstress the defendant’s compliance with the provision of law.To the defendant, this Court can only consider the handbook and the common law. Citing section 9.7 of Exhibit C5, the defendant submitted that it had every right to terminate the employment of the claimant for breaching the company rules relating to the application for loans. That it is clear that since the claimant was the Chief Compliance Officer of the defendant, she was very conversant with the rules and procedure of the defendant.That the claimant also admitted same during her cross-examination. Despite this, the defendant submitted that the claimant breached the rules and manipulated the rules to ensure that she got the housing loan and when the defendant realized this they complained several times as is shown in Exhibits D4, D8, D10, D11, D6, D7, D13, and D16. That the claimant at several times responded in Exhibits D3, D5, and D9. Further to these exhibits the last which was D16 dated 5th January 2016, that the claimant was terminated on 12th January 2016. That it is, however, surprising that as the Chief Compliance Officer, she failed, neglected and refused to comply with the rules and procedure lay down by the company to process her housing loan. Also that it is equally clear that section 9.7 of Exhibit C5 which governs the termination in this instant case is different from section 4 of Exhibit C5. That while section 4 provides for the regulations that governs disciplinary procedure for certain misconducts committed by an employee, section 9.7 specifically provides that the defendant can terminate the employment of its employee at any time if found in breach of any of the company rules. That the claimant breached several of the defendant’s rules including the procedure laid down by the Employees Staff Handbook i.e. Exhibit C5, particularly at section 6.1, which provides that all loan application must go through the Heads of Department and then to the HR/Admin, the application must also pass through the Finance Department and the approval of the GM are necessary. That the evidence before the Court shows that the claimant did not comply with all these procedures.

 

  1. The defendant went on that the loan application form i.e. Exhibit D1 is in exact conformity with section 6 of Exhibit of C5;this means that every column on Exhibit D1 represent an equivalent condition provided for in Exhibit C5. That the claimant also admitted this fact during cross-examination. To further explain the above, that section 6.1 of section 6 of Exhibit C5 is a general condition precedent (as in all other sections of the Handbook) to any staff applying for loan which must be met before the grant of any of the loans listed in sections 6.2 to 6.7 of Exhibit C5, such an employee must have first qualified under section 6.1. That the conditions precedent must be met; otherwise, such a staff will not be granted loan of any kind specified in the whole of section 6 of Exhibit C5. That this explains why Exhibit D1 i.e. the loan application form, which is used to process all loans granted by the defendant, also has the conditions stated in section 6 of Exhibit C5 which includes the fact that:
  2. The employee must have been confirmed for vehicle and share equity participation loans;
  3. The employee must have spent at least five years of continuous employment, with satisfactory performance for other loans;
  4. The employee/applicant’s monthly take home (as reflected on the pay slip) after monthly loan repayment should not be below 331/3% of the employee’s monthly gross salary;
  5. The loan application.is subject to the employee’s gratuity entitlement as at the date of application (i.e. a loan cannot be granted for more than the gratuity of the employee at the time of applying for the loan);
  6. All applications for staff loans and advances must be directed through the applicant’s Head of Department whose recommendation must be made on the application to the HR/Admin department for processing and the GM must approve it.

That thees conditions are provided for in the loan application form as well, and it is after they have been complied with that the conditions for the housing loan as in this case becomes operative, if not the loan will not be approved by the defendant.

 

  1. That it is also important to point out that the first condition which states that the employee must have been confirmed for vehicle and share equity loan does not mean it is applicable to vehicle loans alone. That what the first condition as well as other conditions under section 6.1 means is that for an employee to quality for any loan, such employee must have been confirmed for vehicle & share equity participation loans. The other conditions also carry equal weight as the first condition and since the claimant had earlier taken a vehicle loan and participated in share equity she qualified.Furthermore, that there is a column in Exhibit D1 i.e. the loan application form which is termed “Purpose of Loan” and the claimant filled it as “Housing Loan”. That this is to further buttress that the application form and section 6.1 of the Employees handbook applies to all kind of loans and that is why on the form, the HR/Admin Department would specify the kind of loan the employee is applying for e.g. Housing loan, vehicle loan, share purchase loan and so on. To the defendant, for the purpose of this instant case, and in relation to the housing loan taken by the claimant,section 6.1 must be read in conjunction with section 6.3 before the claimant could be said to have qualified for the loan she took from the defendant.

 

  1. The defendant continued that the first irregularity/breach of the defendant’s rules by the claimant is that contrary to section 6.1 of Exhibit C5, the claimant wrote on Exhibit D1 the loan application form, the sum of N383,943.00 as net payment i.e. before loan, while she also wrote the sum of N156,443.00 as net balance if loan is granted. This means that the amount deducted from the claimant’s salary in repayment of the loan ought to be the difference between N383,943.00 and N156,443.00 which would equal the sum of N227,200.00.However, that this deduction as misrepresented by the claimant was not the case as can be seen from Exhibit C10 i.e. the loan periodic repayment schedule that the monthly payment the claimant will repay for the loan is N296,518.40 and not N227,200.00 as stated by the claimant in the loan application form. This can also be seen in Exhibits C12, C12A and C12B. That the amount deducted from the claimant’s pay slip for the loan was N296,518.40 not N227,200.00 which the claimant stated in Exhibit D1. That a subtraction of N296,518.40 from N383,943.00 will give a total of N87,424.60, which contradict number 10 of the loan application form i.e. Exhibit D1 andsection 6.1 of Exhibit C5 because the sum i.e. N87,424.60, which will be left in favour of the claimant on a monthly basis will be less than 331/3%. Thus, that it is apparent that the loan would never have been approved in the first place if the claimant put in the correct information in the form and this would have been avoided if the proper department had processed the loan.Simply put, that the claimant wrote the sum of N156,443.00 as net balance (IF GRANTED) to desperately get the loan because she knew if she had written N87,424.60 which is the true amount left, she will not get the loan;and that was also why she did all the processing all by herself.

 

  1. The defendant continued that section 6.1 of Exhibit C5 provides that all applications for staff loans and advances must be directed through the applicant’s Head of Department whose recommendation must be made on the application to the HR/Admin Department for processing.That the claimant admitted in paragraph 5 of her statement on oath that Exhibit C5 applied to her and this means sections 6.1 and 6.3 of Exhibit C5 ought to have been complied with by her before taken the housing loan. That it is, however, clear that on the face of Exhibit D1, the claimant cancelled HR/Admin, interposed it with her designation AGM(F) and signed that portion herself contrary to the rules and regulations of the defendant.

 

  1. That the irregular processing of the loan becomes clearer when the court looks at Exhibit D1, the loan application form dated 3rd July 2013. The defendant the asked: that the MD’s signature was appended on 4th July 2013 and from the Extract of the Board Establishment Committee (Exhibit C8) and theletter to the claimant approving the loan (Exhibit C9), both dated 2nd July 2013,was the loan approved prior to the processing of the loan application?Also, that on the face of Exhibit D1, there is a column for the signature of the General Manager which was left unsigned by the claimant for her own personal agenda. She then took the form straight to the Managing Director for signature bypassing the laid down hierarchy.

 

  1. That section 9 (9.3) and (9.3.1) provides that all employees will normally be required to leave service of the company on reaching the age of sixty (60) years or thirty (30) years in service whichever is earlier. That in Exhibit C10 i.e. the loan periodic repayment schedule prepared by the claimant, the repayment to be paid was spread over a duration of 16 years, instead of 13 years as she had 13 years to retire since the claimant would have been 30years in service because the law on retirement applies to whichever that comes earlier and in this case the claimant would have been 30 years in service before she is 60 years old. That this was another irregularity by the claimant as she took advantage of her position to extend her terms of service to accommodate her loan; this is against the terms and conditions of Exhibit C5. That the issue of the years left for her was also carefully manipulated by the claimant in Exhibit D1. Paragraph 8 demanded the date of engagement of the applicant. It was stated by her that she was employed in 1996 and as such had worked for 17 years as stated in the form. It follows that she had 13 years left to work with the defendant and as such her repayment should be based on 13 years and not 16 years as she sought to do. She based it on her age rather than her date of employment. Section 9.3.1 clearly states which date is earlier. That the claimant even conceded in her letter dated October 21, 2013 i.e. Exhibit D5 that she had 13 years left as at the time she applied for the loan. Thus it is clear that the repayment scheme was based on wrong information provided in Exhibit D1 by the claimant. That the calculations in paragraphs 4.26 to 4.29 are based on 16 years which the claimant did not have. Thus if we were to base the calculations on the true number of years left by the claimant which is 13 years the deductions will be N345,706.79 as shown in Exhibit C14. That the Court will find out that after deducting N345,706.79 from her basic pay of N383,943.00 will leave a balance of N38,236.21, a sum that will definitely be lower than N156,443.00 as stated by the claimant as what would be the net balance of her pay if the loan is granted as stated in paragraph 6 of Exhibit D1.That the claimant even has an admission in Exhibit D5 i.e. in her letter dated October 21, 2013, where she stated that: “…I offered to adjust my loan repayment period to 13 years as against the present 16 years repayment period”. This to the defendant nullifies prayer (d) of the claimant’s complaint before thisCourt.

 

  1. The defendant proceeded that Exhibit D1 also provides in paragraph 8 the gratuity entitlement as date of application. The form correctly stated N10,368,254.00. That this is what the claimant would have been entitled to as housing loan. She can only receive what her gratuity will be to ensure that the loan is fully guaranteed. However,that she instead based her loan entitlement on 12 times of her salary.Also, that the evidence the claimant gave during cross-examination to the effect that the General Manager does not approve loans should be disregarded by this Court because it is very clear on Exhibit D1 that the General Manager has to sign his column on Exhibit D1 before the Managing Director. Thus the position of Exhibit D1 is much more superior to any oral evidence given by the claimant as the position of the law is that a document should speak for itself, citingOkho Mina v. PHMB[1997] 2 NWLR (Pt. 485) 75 at 90, section 128 of the Evidence Act 2011,FBN Plc v. J. O. Imasuen and Sons Nigeria Ltd[2013] LPELR-20875(CA),IMNL v. Pegofor Ind. Ltd[2005] 15 NWLR (Pt. 947) 1 andAwazie v. Okoroafor[2015] LPELR40210(CA).

 

  1. That it is, therefore, clear that the claimant’s application for loan went straight to the Managing Director which is against the defendant’s policy, in flagrant breach of the rules and regulations because it was supposed to be routed through the HR/Admin Department to ensure due diligence, then to the Financial Controller for vetting in order to ensure checks and balances before recommending to the GM who shall forward same to the MD for approval.That the claimant admitted during cross-examination that the Managing Director as at the time she applied for the loan was Dr. A.P. Mittal and that he is a veterinary doctor who has some insurance qualifications but he was not an accountant; thus he relied on her for financial advice. That it is safe to say, however, that the claimant abused her position and took advantage of the Managing Director, who is not well versed in financial matters to get her loan approved. That Exhibit C7 i.e. the letter from the Managing Director, came as a result of Exhibit D1 and consequently Exhibit C8 came as a result of Exhibit C7. Thus, to the defendant, if the claimant had given the Managing Director correct financial advice on the loan in the first place Exhibit C7 would not have come into existence and by extension, Exhibit C8 would not have approved the loan. That after the loan was granted the issues were discovered and raised by the defendant,which view was stated in the letter of the defendant (Exhibit D13). That the Court would see that from Exhibit D20, it is clear that the claimant was given 3months salary in lieu of notice which is even more than the 1 month notice she was ordinarily entitled to. She was also given her full gratuity in accordance with the law. In this circumstance, the defendant submitted that either way the claimant’s employment was properly terminated and she was given all her entitlement, praying the Court to so hold.

 

  1. Issue (2) is whether or not the claimant is still indebted to the defendant by virtue of the Housing loan taken by her from the defendant. To the defendant, the position of the law is clear that parties are bound by agreement in which they freely entered into, citingOforishe v. Nigerian Gas Co. Ltd (supra). That it is not in dispute that the claimant took a loan from the defendant; in fact the claimant admitted same during the hearing of this suit, and even admitted that the loan has not been fully repaid. That these are admissions which do not require further proof, citingAlahassan &anor v. Ishaku &ors[2016] LPELR-40083(SC).That the claimant also tendered Exhibit C11 i.e. the Deed of Legal Mortgage that both parties executed. Exhibit C11 establishes the existence of a contract entered into by both the claimant and the defendant and it further establishes the covenant made by the claimant to repay the debt. Thus the claimant cannot for any reason state that she has no obligation to pay her debt owed to the defendant. The defendant continued that a contract of employment is different from a personal loan granted to an employee by an employer;this means that the loan she took from the defendant still stands after she leaves the employment of the defendant, and any amount due for repayment must be repaid since the defendant is not a charitable organisation and more especially where the sum advanced is made up of shareholders’ funds. That this is supported in Exhibits C5 (section 6.1 page 40) and C11 (paragraph 4.2 page 5) as well as Lewis v. UBA Plc[2016] 6 NWLR (Pt. 1508) 329 SC, where the Supreme Court held that a contract of employment and a personal loan agreement between employee and an employer are two distinct contracts having distinct subject-matters, and their durations are not co-existent, and it cannot be said that one is dependent on the other; or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment of the personal loan or balance thereof.

 

  1. To the defendant, the instant case is similar to Lewis v. UBA Plc(supra) because in Lewis the appellant argued that his continued retention in the employment of the respondent was a condition precedent to his repayment of personal loans and that his employment being terminated by the respondent, the enforcement of the personal loans had been frustrated, butthe Court held that such an argument was not sustainable either in the context of the facts of the case or the prevailing law. The defendant accordingly submitted that the averment of the claimant in the instant case that the termination of her employment has put her in a predicament of having to fulfill a contractual impossibility because the satisfaction of her obligations under the Housing loan was tied to her employment cannot be sustained either in the context of the facts of this case or the prevailing law, praying the Court to so hold.To further buttress its point, and contrary to the claimant’s averment, the defendant submitted that there is nowhere in Exhibit C11 that it was mutually agreed that the claimant will liquidate her indebtedness through deductions from her salary with the defendant. The defendant further submitted that the loan granted to the claimant is independent and not connected to her employment. That the claimant is, therefore, still indebted to the defendant and is required to fulfill her contractual obligations by paying the remaining sum due to the defendant under the Housing Loan agreement. That even the Staff handbook (Exhibit C5) clearly states as follows: “All loans granted at the fair and equitable discretion of Management and on leaving the service of Prestige Assurance Plc for any reason; the outstanding balance becomes immediately due and payable or be restructured on Management’s approval into a loan on commercial basis”. To the defendant, this provision supports its argument that the outstanding amount is immediately due except the management is persuaded to restructure the balance on a commercial basis, citing also clause 4.2 of the mortgage deed (Exhibit C11). The defendant then urged the Court to order same. That it should also be remembered that the defendant is a publicly quoted company and as such the funds belong to the shareholders of the company and as such it would be unfair to allow the claimant to hold on to the funds to the detriment of the shareholders.

 

  1. Issue (3) is whether or not the default of payments due under the Housing loan by the claimant for three consecutive months amounts to a breach which enables the defendant to sell the mortgaged property and recover its debt. Here the defendant referred to Nuhu &anor v. Benneth[2017] LPELR-42634(CA) and Afrotecv. Mia Sons Ltd[2000] 12 SC (Pt. II) 1 at 15, which held that the terms of an agreement are to be determined by the parties (who are bound by the said terms) and not by the Court. Also referred to the Court is section 6.1 of Exhibit C5 and clauses 4, 4.2 and 2.7 at page 5 of Exhibit C11, which both parties agreed to. Clauses 4, 4.2 and 2.7 state as follows:
  2. All the moneys hereby secured shall immediately become payable upon theoccurrence of any of the following events…

4.2. if the Mortgagor shall stop payment of principal or interest herein or shall cease or resign from the service of the Mortgagee.

2.7. That if default shall be made in payment of any sum or sums of money due under this security or any part thereof, where such default subsist for three consecutive months without remedy, the mortgagee may thereafter enter into and upon the Mortgaged Property or any part thereof and shall be at liberty to appoint a Manager or Receiver for the purpose of offsetting such outstanding sums that may have either fallen due and unpaid and or any such part of the facility that remains payable to the Mortgagee.

 

  1. To the defendant, these clauses are terms which both parties freely entered into and same must be enforced where there is a breach.That the clear import of the above clauses is that the claimant was meant to liquidate the housing loan on a monthly basis, but if for any reason she stops being in the employment of the defendant, then she must pay the total amount owed immediately to the defendant.Also that where the total amount due to be paid immediately to the defendant as in this circumstance is not paid and such default continues for a period of three consecutive months, then the defendant shall forfeit the mortgage security and it shall be used by the defendant to offset the debt owed by the claimant.That the claimant’s last payment was in December 2015 and since then till date, she has not paid any amount to the defendant to liquidate the loan taken by her. That it is definitely more than 3 months as stipulated by the agreement, which is apparently a breach of the agreement between the parties lasting for two years and this should consequently enable the defendant to enter into possession of the property at House 2, Hon. Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos State for the purpose of offsetting the debt. That it should be remembered that the defendant is a publicly quoted company and as such the funds belong to the shareholders of the company and as such it would be unfair to allow the claimant to hold on to the funds, praying the Court to so hold.

 

  1. Issue (4) is whether or not the claimant can lawfully hold on to the defendant’s Hyundai Jeep, with Registration Number GGE 342 AV. To the defendant, the ownership of the car is not in dispute, and the claimant also admitted that the car is still in the name of the defendant. That there is, however, no reason for her to hold on to the car after her employment was terminated since January 2016 till date. That section 9 (9.2) paragraph 6 of Exhibit C5 also state that all employees leaving the company must hand over to the company all properties belonging to the company;thus the claimant ought to return the company vehicle back to the defendant together with the cost for illegal usage of the vehicle, praying the Court to so hold. That the retaining and continuous usage of the defendant’s vehicle makes the claimant liable in conversion. This is simply because the act of conversion is founded upon depriving the owner of a chattel of using same, citingBoniface Anyika & Co. (Nig) Ltd v. Uzor[2006] 15 NWLR (Pt. 1003) SC 560 andOlam (Nigeria) Limited v. Intercontinental Bank Limited[2009] LPELR-8275(CA). That the defendant could have used the vehicle to the benefit of other staff and also saved a lot of cost hadthe claimant handed over the vehicle to the defendant as soon as her appointment was terminated;thus it is only fair that the defendant be able to recover the loss incurred on not being able to access the vehicle, praying the Court to so hold. That it should also be remembered that the defendant has been generous in not claiming for the return of all their properties that the claimant has held on to, referring to Exhibit D20 that states other properties of the defendant in possession of the claimant including the Jubaili Generator and company laptop. In conclusion, the defendant urged the Court to dismiss the all the claims of the claimant and grant itscounterclaim.

 

THE CLAIMANT’S SUBMISSIONS

  1. The claimant started off by itemizing what she termed to be facts not in dispute, namely:
  • It is not in dispute that the claimant, who was the former Assistant General Manager I (CFO) in the Accounts Department of the defendant, applied for Housing Loan via Exhibit C6 (Letter of Application For Housing Loan dated June 28, 2013) and the defendant duly approved same via Exhibit C9 (Approval for Application for Housing Loan dated July 2, 2013) in the sum of N42Million to be recovered through monthly salary deductions in the sum of N296,519.00 for over sixteen (16) years at an interest rate of 4% per annum starting from July 2013.
  • It is not in dispute that Exhibit C11 (Deed of Legal Mortgage under seal) was executed between the claimant and the defendant pursuant to the Home Loan facility wherein Exhibit C9 (Approval for Application for Housing Loan dated July 2, 2013) was referenced in page 2 clause (e) of Exhibit C11.
  • It is not in dispute that the defendant issued Exhibit C10 (The loan periodic payment schedule for the liquidation of the secured Housing Loan in the sum of N296,518.40 from 26-07-2013 to 26-07-2029 totaling 192 deductions from the claimant’s salary with the defendant) to the claimant.
  • It is not in dispute that the defendant continued to deduct the sum of N296,518.40 for over TWO (2) YEARS from the claimant’s salary towards the liquidation of the secured Housing Loandespite Exhibit D4 (defendant’s letter dated October 2,2013) and Exhibit D5 (claimant’s letter dated October 21, 2013) between the defendant and the claimant wherein the defendant via Exhibit D4 ordered the immediate reduction of the Housing Loan repayment timeline from sixteen (16) years to thirteen (13) years and increment of the monthly salary deduction from N296,518.40 to N345,708.79 and the claimant via Exhibit D5 agreed based on the insistence of the d
  • It is not in dispute that the defendant via Exhibit C15 (letter of Termination of Employment dated 12th January 2016) terminated the claimant’s employment based on the Housing Loan irregularities as stated by DW during trial.
  • It is not in dispute that section 9.7 of Exhibit C5 (Employee Handbook) states that the defendant may at any time terminate the employment of an employee if found in breach of any of the company’s rules and regulations or the employee is found to be incompetent or not performing.
  • It is not in dispute that Exhibit C15 (letter of Termination of Employment dated 12th January 2016) did not disclose that she breached any of the company’s rules and regulations or that she was found to be incompetent or not performing as stipulated in section 9.7 of the Employee Handbook.
  • It is not in dispute that the defendant prepares the claimant’s payslips as evidenced in Exhibit C12 (payslip for the month of October 2015); Exhibit C12A (payslip for the month of November 2015); Exhibit C12B (payslip for the month of December 2015) and Exhibit C13 (payslip for the month of December 2015) and deducts the sum of N296,518.40 from the claimant’s monthly salary towards the liquidation of the secured Housing Loan.
  • It is not in dispute that the defendant did not issue any query to the claimant on the Housing Loan irregularities.
  • It is not in dispute that there is no evidence before this Court where the defendant expressed dissatisfaction over the claimant’s work performance.

To the claimant, it is trite that undisputed facts need no further proof at the trial as no issue is joined, citing Sanusi &orsv. Obafunwa & anor [2006] LPELR-11863; and that this Court has no jurisdiction or power to determine facts which are not in dispute between the parties, citing Olofu v. Itodo [2010] 18 NWLR (Pt. 1225) 545 SC andMagaji v. Cadbury Nig. Ltd[1972] 2 SC 97.

 

  1. The claimant then submitted three issues for determination, namely:
  • Whether or not the defendant’s Letter of Termination of Employment dated 12th January 2016 against the claimant is wrongful and constitutes permanent loss of employment.
  • Whether or not the claimant is entitled to the reliefs sought against the defendant before this Honourable Court.
  • Whether or not the defendant is entitled to the reliefs sought in its counterclaim against the claimant before this Honourable Court.

 

  1. For issue (1), the claimant submitted that it is settled law that unless the plaintiff establishes his entitlement to the reliefs sought by credible evidence to the satisfaction of the Court, the claim stands to fail, citingAnyaoke v. Adi [1989] 3 NWLR (Pt. 31) 731. That where an employee complains that his employment has been wrongfully terminated, he has the onus to produce before the Court the terms and conditions of employment and follow same up by proving in what manner the said terms and conditions of service were breached by the employer. The success or otherwise of such a party depends solely on the terms and conditions of the employment since the Court is not permitted to go outside the agreed terms and conditions of the employment, citingWestern Nig. Dev. Corp. v. Abimbola [1966] 4 NSCC 74. That the initial onus is on the employee to prove that he is an employee of the company, the terms and conditions of the employment contract, and that the employment was terminated in a manner inconsistent with the terms of the employment contract, citing Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 SC,Iwuchukwu v. Nwizu [1994] 7 NWLR (Pt. 257) 379 SC,Texaco (Nig) Plcv. Kehinde[2001] 6 NWLR (Pt. 708) 224 CA and Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 3 NWLR (Pt. 1022) 554.

 

  1. To the claimant, on the totality of the evidence presented before this Court, the irresistible inference/conclusion to be drawn is that her contract of service is circumscribed by Exhibit C1 (Letter of Appointment dated 19th June 1996), Exhibit C2 (Letter of Confirmation of Appointment dated 21st August 1997), Exhibit C3 (Letter of Promotion dated 7th April 2010), Exhibit C4 (Letter of Appointment as Chief Compliance Officer dated December 20, 2013) and Exhibit C5 (Employee Handbook) before the issuance of Exhibit C15 (Letter of Termination of Employment dated 12th January 2016). That in view of the foregoing, she has shown that she was a former employee of the defendant and she has evidenced the terms and conditions of the employment contract leading to the wrongful termination of her employment before this Court.

 

  1. The claimant went on that the onus is on the defendant to justify stated reason for termination of the claimant’s employment. That the law is settled that in contract of employment as distinct from contracts of employment which requirecompliance with the enabling statutory provision, a master can terminate the employment of his servant at any time and for any reason or no reason at all, provided the termination is in accordance with the terms of their contract, citingEze Kwere v. Golden Guinea Breweries Ltd [2000] 8 NWLR (Pt. 670) 648. That it is pertinent to note, however, that while an employer is not obliged to state reasons for terminating a contract of employment, where the employer gives a reason, the burden rests on him to establish that reason. In such cases, the employee must be given a fair hearing as enshrined under the law, citingUBA Plcv. Oranuba [2014] 2 NWLR (Pt. 1390) 1 at 21. That the defendant via DW’s depositions in the witness statement on oath and during cross-examination of DW stated that the claimant’s employment was terminated through Exhibit C15 (Letter of Termination of Employment dated 12th January 2016) based on the Housing Loan irregularities. That in view of the foregoing, the defendant specifically stated that the reason the claimant’s employment was terminated was based on the Housing Loan irregularities, urging the Court to so hold.

 

  1. The claimant continued that the defendant did not properly terminate her employment. That the law on the determination of contract of employment is that much as an employer is not bound to follow proper procedure in summarily dismissing an employee, there are two exceptions where to properly and effectively terminate a contract of employment, the employer has to follow the proper procedure. These are: where the contract itself has made provisions for a procedure to be followed to effectively determine the contract; and where a statute regulates the appointment and dismissal of an employee, the requirements of the statute must be complied with. That it is settled law that an employee will only succeed or fail upon the terms of the contract of employment. In effect, where the contract of employment has been reduced into writing, the courts as well as the parties are bound by those terms. The Court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties in case of disputes arising from the contract, citing Ujam v. IMT[2007] 2 NWLR (Pt. 1019) 470 CAat 489,Western Nigerian Development Corporation v. Abimbola [1966] 4 NSCC 172,Nwaubani v. Golden Guinea Breweries Plc [1995] 6 NWLR (Pt. 400) 184,College of Medicine of the University of Lagos v. Adegbite [1973] 5 SC 149 andInternational Drilling Co. v. Ajilola [1976] 2 SC 115. That under a contract of employment, the Court, in determining whether there has been a breach or compliance with the terms and conditions of the contract of employment, is entitled to look at the contract of service and ensure that parties are bound by the four walls of the contract and to strictly interpret the document that gives right to the employment contractual relationship between parties, citingDaoudu v. UBA Plc[2004] 9 NWLR (Pt. 878) 276 at 292 andKatto v. CBN[1999] 6 NWLR (Pt. 607) 390 at 405.

 

  1. The claimant relied on section 4 of Exhibit C5 (Employee Handbook), which focuses on Regulations and Disciplinary Procedure Policy between the defendant and the claimant and variously quoted from it. The claimant proceeded to submit at paragraph 6.20 of her final written address that: “In view of the foregoing paragraph, a Housing Loan irregularity is an act of Misconduct under Exhibit C5 (Employee Handbook)”. That misconduct is defined as conduct of a grave and weighty character as to undermine the confidence which exists between the employee and his employer, or which works against the deep interest of the employer, citingUBN Ltdv. Ogboh[1995] 2 NWLR (Pt. 380) 647 SC. That it is imperative that where an employer removes an employee for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. That the audi alteram partem principle imposes a duty upon an employer to act fairly by giving the employee an opportunity to explain himself before taking any decision which affects the employee’s proprietary right, citingUniversity of Calabar v. Essien [1996] 10 NWLR (Pt.447) 225 at 262, Olatubosun v. Nigerian Institute for Social and Economic Research [1988] 3 NWLR (Pt. 80) 25 at 52 and Akumechiel v. Benue Cement Co. Ltd[1997] 1 NWLR (Pt.454) 695 at 703. To the claimant, the defendant did not comply with sections 4.2, 4.3, 4.5, 4.6 and 4.8 before invoking section 9.7 of Exhibit C5 (Employee Handbook) and, therefore, wrongly terminated the claimant’s employment as evidenced in the undisputed facts the claimant went on to narrate. The claimant then submitted that that the defendant’s Exhibit C8 (Extracts from the Minutes of the Meeting of the Board Establishment Committee of the Company held at Lagos on 2nd July, 2013) and Exhibit C9 (Approval for Application for Housing Loan dated 2nd July 2013) show a presumption of regularity on the claimant’s Exhibit D1 (claimant’s Loan Evaluation Form) and it is in bad faith, unconscionable and an afterthought to allege Housing Loan irregularities, urging the Court to so hold.

 

  1. The claimant went on that assuming without conceding that the defendant’s allegation is apt that Exhibit D1 (claimant’s Loan Evaluation Form) should have been submitted to the defendant’s Admin/HR for review, it is undeniable that the defendant continued to deduct the sum of N296,518.40 for over TWO (2) YEARS from the claimant’s salary towards the liquidation of the secured Housing Loan despite Exhibit D4 (defendant’s Letter dated 2nd October 2013) and Exhibit D5 (claimant’s Letter dated October 21, 2013) between the defendant and the claimant wherein the defendant via Exhibit D4 ordered the immediate reduction of the Housing Loan repayment timeline from sixteen (16) years to thirteen (13) years and increment of the monthly salary deduction from N296,518.40 to N345,708.79 and the claimant via Exhibit D5 agreed based on the insistence of the defendant.

 

  1. To the claimant, the defendant did not issue any query to her on the Housing Loan irregularities; there is no evidence before this Court where the defendant expressed dissatisfaction over the claimant’s work performance; and thedefendant through Exhibit C15 (Letter of Termination of Employment dated 12th January 2016) terminated the claimant’s employment based on the Housing Loan irregularities as stated by DW during trial. That section 9.7 of Exhibit C5 (Employee Handbook) states that the Defendant may at any time terminate the employment of a member of employees if found in breach of any of the company’s rules and regulations or the employee is found to be incompetent or not performing. That the defendant woefully failed to either issue any query or set up a disciplinary panel to determine the alleged Housing Loan irregularities. That the conditions stated in section 9.7 of Exhibit C5(Employee Handbook) are sacrosanct and were not strictly adhered to by the defendant due to the irresistible conclusion that the Housing Loan irregularities can only be determined if the act of misconduct was properly established by the appropriate mechanisms outlined in section 4 of Exhibit C5 (Employee Handbook). That the undeniable conclusion is that the defendant terminated the employment of the claimant without due regard to the terms and conditions of the contract of employment between the parties as proven, urging the Court to pronounce the termination as wrongful and award the appropriate measure of damages against the defendant in favour of the claimant, referring to Isheno v. Julius Berger (Nig.) Plc [2008] 6 NWLR (Pt. 1084) 582.

 

  1. Issue (2) is whether or not the claimant is entitled to the reliefs sought against the defendant. To the claimant, citing sections 131 to 133 of the Evidence Act 2011, it is trite law that the burden of proof is on the party who asserts the existence of a thing or substantially asserts the affirmation of the issue.That the instant suit is founded on defendant’s wrongful termination of the claimant’s employment, which has resulted into permanent loss of employment and truncated her repayment obligations under the Housing Loan and Deed of Legal Mortgage; thus it is a civil action and the standard of proof required is based on preponderance of evidence and balance of probabilities, citing Dr Useni Uwah &anor v. Dr Edmundson T. Akpabio&anor[2014] LPELR-22311(SC). That the claimant has proven its case before this Court to be entitled to the reliefs sought; and a close review and analysis of the evidence adduced by the claimant through CW and the voluntary admissions of the defendant through DW clearly established and strengthened the case of the claimant. That the reliefs sought by the claimant against the defendant in this suit are clear, precise, quantifiable and devoid of speculation, citingEmmanuel Debayo v. Doherty [2009] 1 NWLR (Pt. 1123) 505.

 

  1. To the claimant, the defendant’s wrongful termination of the claimant’s employment has truncated her repayment obligations under the Housing Loan and Deed of Legal Mortgage. That the defendant’s termination of the claimant’s employment led to the permanent loss of employment, which has put the claimant in a predicament of having to fulfill a contractual impossibility, considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the Defendant, has been abruptly severed.

 

  1. Also, the claimant submitted that the defendant cannot unilaterally reduce the loan periodic payment schedule from 16 years repayment time to 13 years repayment time line and unilaterally increase the mutually agreed monthly deductions from N296,519.00 to N345,708.79 in flagrant breach of the extant stipulations/terms of the Housing Loan and Deed of Legal Mortgage. That it is trite that a party cannot ordinarily resile from a contract or agreement just because he later found that the terms of the contract or agreement are not favourable to him. That this is the whole doctrine of the sanctity of contract or agreement. That the Court is, therefore, bound to properly construe the terms of the contract or agreement in the event of an action arising therefrom, citingArjay Ltd v. Airline Management Support Ltd [2003] LPELR-555(SC) 1 at 67,Nneji v. Zakhem Con. (Nig.) Ltd [2006] LPELR-2059(SC) 1 at 27, SPDC (Nigeria) Ltdv. Emehuru [2007] 5 NWLR (Pt. 1027) 347 at 367,Lamie v. DPMS Ltd[2005] 18 NWLR (Pt. 958) 438, Agbareh v. Nimra [2008] 2 NWLR (Pt. 1071) 378 and SPDCN Ltdv. Nwaka [2003] 6 NWLR (Pt. 815) 184. To the claimant, Exhibit D4 (defendant’s Letter dated October 2, 2013) and Exhibit D5 (claimant’s Letter dated October 21, 2013) between the defendant and the claimant wherein the defendant via Exhibit D4 ordered the immediate reduction of the Housing Loan repayment timeline from sixteen (16) years to thirteen (13) years and increment of the monthly salary deduction from N296,518.40 to N345,708.79 and the claimant’s agreement based on the insistence of the defendant cannot vary/alter/modify Exhibit C11 (Deed of Legal Mortgage under seal), urging the Court to so hold. Furthermore, that Exhibit C13 (payslips for the month of December 2015) and Exhibit C14 (The Loan periodic payment schedule showing the deduction from the Building Loan in the sum of N345,708.79 and a unilaterally reduced loan periodic payment schedule from 16 years repayment timeline to 13 years repayment timeline) contrary to the mutually agreed monthly deductions of N296,519.00 and 16 years prepayment timeline between the claimant constitute a flagrantly breach of the extant stipulations/terms of the Housing Loan and Exhibit C11 (Deed of Legal Mortgage under seal).

 

  1. That the law is that a contract which has been reduced into writing can only be varied by an agreement in writing, citing Baliol Nig. Ltd v. Navcon Nig. Ltd[2010] LPELR-717(SC),Bijou Nig. Ltd v. Osidoroewo [1992] 6 NWLR (Pt. 249) 463 at 469,John Holt Ltd v. Stephen Lafe [1938] 15 NLR 14 andMorriv. Baron& Co. [1918] AC 1 at 39; nor is extrinsic evidence admissible to add to, vary, subtract from or contradict the terms of a written instrument, citing Okonkwo v. CCB (Nig.) Plc[1997] 6 NWLR (Pt.507) 48,Dalek (Nig.) v. OMPADEC[2007] 7 NWLR (Pt.1033) 402,UBN Ltdv. Ozigi[1994] 3 NWLR (Pt. 333) 385 at404,Nneji v. Zakhem Con. (Nig.) Ltd [2006] 12 NWLR (Pt. 994) 297 SC andUBN Ltdv. Sax[1994] 8 NWLR (Pt. 361) 402. That to vary an existing contract my lord, the new terms must be executed in similar manner as the pre-existing contract i.e. a contract under seal can only be varied by another contract under seal. Any other form of contract purporting to vary its terms will be interpreted as repudiating the old contract and making a new one in its place. Similarly, that since the contract of employment was in writing and duly signed, any document purporting to vary same must possess similar characteristic of a valid contract and duly executed by the parties at least in similar manner as the earlier contact, referringto Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt.1420) 96 at 116 to 117. The claimant then submitted that in the absence of another document under seal varying/altering/modifying Exhibit C11 (Deed of Legal Mortgage under seal), the said Exhibit C11 remains the extant document on the Housing Loan wherein the defendant approved the sum of N42Million to be recovered through monthly salary deductions in the sum of N296,519 .00 for over sixteen (16) years at an interest rate of 4% per annum starting from July 2013, urging the Court to so hold.

 

  1. Citing section 169 of the Evidence Act 2011, “The High Trees Case”,Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130; [1956] 1 All ER 256, Joe Iga & ors v. Ezekiel Amakiri &ors [1976] 11 SC 1 at 12-13 and Oyerogba v. Olaopa[1998] 13 NWLR (Pt. 583) 509 at 519, the claimant further submitted that the defendant is caught by the doctrine of estoppel. That the defendant has been caught by estoppel by conduct having continuously deducted the sum of N296,518.40 for over TWO (2) YEARS from the claimant’s salary towards the liquidation of the secured Housing Loan despite Exhibit D4 (defendant’s Letter dated October 2, 2013) and Exhibit D5 (claimant’s Letter dated October 21, 2013), urging the Court to so hold.

 

  1. On the claim for general damages in the sum of N50.000,000.00 against the defendant for flagrantly breaching the Housing Loan and Deed of Legal Mortgage agreement by unilaterally varying, importing and enforcing alien terms outside of the Housing Loan and Deed of Legal Mortgage and for abrupt termination of the claimant’s employment leading to permanent loss of employment, the claimant submitted that the award of damages as it relates to contracts of employment is imperative since it is believed that an award of substantial sum as damages for wrongful termination of employment can deter employers who may be disposed to do away with the services of employees at will. That in the absence of employment security, the award of a princely sum can also assuage the financial hardship of an employee who loses his job without cause, providing some financial security in a society that is bereft of social security. That where an employer terminates an employee’s contract in an unfair manner, he should not be allowed to rely on the contractually stipulated length of notice;and if an employer has been dishonest or dishonourable in his treatment of an employee, the Court should turn him away from relying on the limiting clause, citing the broadly stated dictum of Scrutton, LJ inGibaud v. Great Easterly [1921] 2 KB 510 at 535 to the effect that “if you undertake to do a thing in a certain way with certain conditions protecting it, and have broken the contract by not doing the thing contracted for in the way contracted for…you cannot rely on the conditions which were only intended to protect you if you carried out the contract in the way in which you had contracted to do it”.

 

  1. The claimant went on that if wrongful termination of the appointment is as a result of the employee, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the employer, that is, unproved misconduct, then such a termination carries with it some stigma on the character of the employee for which he should be entitled to substantial damages far beyond his salary for the period the notice was required, citing Evans Bros (Nig) Publishing Ltd v. Falaiye [2003] 13 NWLR (Pt. 838) 564 at 589. To the claimant, the manner of the claimant’s wrongful termination was sharp and oppressive and her reputation in commercial circles suffered as a consequence because she did not enter into employment solely for the money but essentially for financial security, offering assurance of future income needed to repay present debts and meet future obligations as per the financial obligations under the Housing Loan and Deed of Legal Mortgage. That it is evident that there are grounds for awarding general damages against an employer who terminates an employment contract, whether in accord with the employment contract or wrongfully should be immaterial, in such a way a manner that the employee would be stigmatized in the job market and his job prospects are diminished by the manner he was wrongfully terminated.

 

  1. The claimant continued that to arrive at what is reasonable the Court is at liberty to consider the capacity in which the employee is engaged, the general standing in the community of the class or persons, having regard to the profession to which the employee belongs, the probable facility or difficulty the employee would have in procuring another employment in case of dismissal, having regard to the demand for persons of that profession and the general character of the services which the engagement contemplates, citing Hamilton CJ of the East African Court of Appeal in Witu Rubber Estates v. Parke [1931] 5 EARR who stated thus:

The real test appears to be: What time might reasonably be expected to elapse before the Appellant would in the ordinary course be likely to obtain similar employment to that he had lost by his wrongful dismissal? Having fixed that period he should be given a sufficient sum to reimburse him for the loss he suffered, calculated on the basis of the emoluments he was enjoying at the time of such loss.

That the defendant’s wrongful termination of the claimant’s employment has put the claimant in a predicament of having to fulfill a contractual impossibility; considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the defendant has been abruptly severed. That consequent upon the termination of the claimant’s employment, all her benefits in the sum of N20,518,206.00 has been forfeited towards the liquidation of the Housing Loan after working for the defendant for nineteen years and six months despite the fact that there was no query with respect to her job/work with the defendant prior to the receipt of the termination letter by the claimantfrom the defendant and the claimant still has outstanding mortgage debt of N16,502,877.00 to pay the defendant. That the claimant had no other alternative means of defraying the outstanding mortgage debt other than award of substantial damages to liquidate the outstanding mortgage debt of N16,502,877.00 to protect the subject property from the claws of the defendant.The claimant seeks the judicial power and discretion of this Court to grant the sought general damages to enable the claimant defray the outstanding mortgage debt of N16,502,877.00 to protect the subject property from the claws of the defendant.In total, the claimant urged the Court to grant general damages in the sum of N50,000,000.00 against the defendant for flagrantly breaching the Housing Loan and Deed of Legal Mortgage agreement by unilaterally varying, importing and enforcing alien terms outside of the housing loan and deed of legal mortgage and for abrupt termination of the claimant’s employment leading to permanent loss of employment and we urge your lordship to so hold.

 

  1. On the claim for perpetual injunction restraining the defendant by itself, its privies, staff, assigns, agents and officers from entering into possession, auctioning, selling, disposing of or otherwise dealing with any rights, title, or interest or advertising for sale the claimant’s property at House 2, Hon. Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos, the claimant submitted that the cardinal factor to be considered by the Court called in the exercise of its power to grant perpetual injunction is that there exists a legal right entitling the applicant to the remedy.That the Legal right the claimant is seeking to enforce is predicated on the Housing Loan and the Deed of Legal Mortgage wherein the claimant’s property at House 2, Hon. Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos State which was used as collateral for the building loan. That it was mutually agreed in ratio 1 at page 3 of the Deed of Legal Mortgage by parties in this suit that the claimant will liquidate her indebtedness through deductions from her salary with the defendant for the next 16 years. That the defendant has wrongfully terminated the claimant’s employment, truncated her obligations under the Housing Loan and Deed of Legal Mortgage and continuously threatened her to repay the mortgage debt or face forceful ejection from the property. That where an applicant has clearly shown the legal right she seeks to protect then the Court would be right to grant an order of injunction in such circumstance, citingAgbogu v. Okoye [2008] All FWLR (Pt. 414) 1494. That it is indeed a fundamental principle for the grant of injunction that the application will always be granted to support a legal right. Therefore, the most important precondition of an applicant is to show that he has a legal right which is threatened and ought to be protected as was the case in Ojukwu v. Governor of Lagos State [1986] 3 NWLR (Pt.26) 39. Thus, it follows that the Court has no power to grant an injunction where the applicant has not established a recognizable legal right which requires protection from unlawful invasion by another, citing Akapo v. Hakeem-Habeeb [1992] 6 NWLR (Pt. 247) 266 at 289. That the defendant has by itself, its privies, staff, assigns and officers continuously visited and harassed the claimant by consistently threatening to foreclose, forcefully take possession of or sell the claimant’s property at House 2, Hon. Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos State in flagrant violation of the extant Housing Loan and Deed of Legal Mortgage and, which has resulted in adverse effects on the claimant’s mental and physical state of health and has also brought her into ridicule and disrepute in the eyes of her neighbours.That the defendant’s wrongful termination of the claimant’s employment has truncated her obligations under the Housing Loan and Deed of Legal Mortgage; consequently the incessant threat for her to repay the mortgage debt and forceful ejection from the mortgage property is an act of overkill by the defendant. The claimant then urged the Court to order perpetual injunction restraining the defendant by itself, its privies, staff, assigns, agents and officers from entering into possession, auctioning, selling, disposing of or otherwise dealing with any rights, title, or interest or advertising for sale the claimant’s property at House 2, Hon. Yahya Adeniyi Dosunmu Close, off Ajiran Road, Agungi, Lekki, Lagos.

 

  1. Issue (3) is whether or not the defendant is entitled to the reliefs sought in its counterclaim against the claimant. With respect to reliefs (a), (b) and (c) of the counterclaim, the claimant submitted that the defendant’s primary reliefs in this suit are declaratory and must be supported by cogent proof before it can be granted, citingMr Joel Olayinka Salaja v. Chief Samuel Babatunde Osuporu Salaja & ors [2013] LPELR-21967(CA),Ogolo v. Ogolo [2003] 18 NWLR (Pt. 852) 494,Oni & ors v. Arimoro[1973] 3 SC 165;[1973] 8 NSCC 108,Anyaoku v. Adi [1986] 3 NWLR (Pt.31) 731 at 749 andClay Industries (Nig.) Ltd v. Aina [1997] 8 NWLR (Pt.516) 208 at 228. To the claimant, the defendant has not provided conclusive proof to this Court showing that the claimant’s employment was validly and lawfully terminated. Furthermore, that the defendant gave Hyundai Jeep with Registration Number GGE 342A V to the claimant for her benefits and as part of her compensation package in accordance with section 5.6 of Exhibit C5 (Employee Handbook).

 

  1. The claimant went on that from the evidence before this Court, it would be inequitable for the Court to grant reliefs (d), (e) and (f) of the counterclaim. That if the Court holds that the defendant wrongfully terminated the claimant’s employment, reliefs (d), (e) and (f) of the counterclaim, which are predicated on reliefs (a), (b) and (c) of the counterclaim, are unmeritorious and cannot stand, citingUAC v. Mcfoy [1962] AC 152. With specific reference to reliefs (e) and (f) of the counterclaim, the claimant urged the Court to hold that reliefs (e) and (f) of the counterclaim are not supported by any documentary evidence before this Court; no evidence was led to support these pleadings and failure to do so is deemed to be an abandonment of the pleadings by the defendant, citingOmoboriowo v. Ajasin [1984] 1 SC 205.Seismograph Ltd v. Ogbeni [1974] 4 SC 8, Balogun v. EOCB (Nig.) Ltd[2007] 5 NWLR (Pt. 584) – incomplete citation, andIfeta v.. SPDC (Nig.) Ltd[2006] 8 NWLR (Pt. 983) 585.

 

  1. With respect to reliefs(g), (h) and (i) of the counterclaim, the claimant submitted that the defendant’s wrongful termination of the claimant’s employment has put the claimant in a predicament of having to fulfill a contractual impossibility; considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the defendant has been abruptly severed; consequently the defendant has no right to take possession of the mortgaged property with a view to realizing the security, urging the Court to so hold. The claimant referred to Oguntade v. FCMB[2007] 2 NWLR (Pt. 1017) 29, which held that equity will not allow a party to benefit from the terms of a contract which he was constantly breaching; as well as Vinz Int’l (Nig.) Ltd v. Morohundiya [2009] 11 NWLR (Pt. 1153) 579, and Ibrahim v. Osunde [2009] 6 NWLR (Pt. 1137), which hole that a party should not be permitted to benefit from his own wrong. That in the light of these judicial authorities, it is crystal clear that where a party is in breach of the express terms of a contract or document he will not be allowed to enforce or rely on the same document.

 

  1. In specific response to paragraphs 4.26 to 4.30 of the defendant’s final address, that the 331/3% monthly gross salary was complied with at the time the Housing Loan was approved until 8th day of July 2013 when the defendant’s Internal Memo changed the calculation of interest rate from the usual practice of one year period to reducing balance based on the period covered. That consequent upon this new position, the Housing Loan repayment amount was calculated and the deduction commenced from 26th day of July 2013, referring to Exhibit D4 (defendant’s Letter dated October 2, 2013) and Exhibit D5 (claimant’s Letter dated 21st October 2013) and most importantly the content under sub-heading titled “Excess on Loan amount” from Exhibit D5. The claimant then urged the Court to hold that reliefs (a), (b), (c), (d), (e), (f), (g), (h) and (i) of the counterclaim are unmeritorious and should be dismissed accordingly.In conclusion, the claimant urged the Court to hold that the claimant is entitled to the reliefs sought in her claim having successfully proved her claim and accordingly grant all the reliefs sought and equally hold that the defendant is not entitled to the reliefs sought in its counterclaim having woefully failed to prove same.

 

THE DEFENDANT’S RELY ON POINTS OF LAW

  1. The defendant reacted on points of law. On whether or not the defendant’s letter of termination of the claimant’s employment is wrongful, the defendant submitted that the position of the law is clear as to the independence of a contract of employment and of a loan granted to an employee during his/her employment, citing once againLewis v. UBA Plc[2016] 6 NWLR (Pt. 1508) 329 SC. That this authority is clear as to loans granted to an employee during a contract of employment so to say that where same is granted, the repayment plan has no connection whatsoever with the contract of employment. That this means that an employer can terminate the employment of an employee without considering the status of the existing loan granted as a precondition to fulfill before the termination can be lawful. That this is not surprising as it is in consonance with the principle of the law which states that an employer can terminate the employment of an employee for any or no reason at all provided all benefits due to the employee are paid, citingAtivie v. Kabelmetal Nig. Ltd[2008] 10 NWLR (Pt. 1095) 399.

 

  1. The defendant then submitted that it is also the position of the law that oral evidence cannot take the place of the content of a document, citingsection 128 of the Evidence Act 2011. That Exhibits C1 and C2 are letters of appointments which created a contract of employment between the claimant and the defendant, while Exhibit C15 is the letter which terminated the contract of employment between the claimant and the defendant.That these documents amongst other documents tendered are meant to speak for themselves as provided for under the law. Thus any evidence given by DW which seek to alter, add to or vary the contents of the documents already tendered and admitted shall be inadmissible.Putting it more directly, that the statement made by DW during cross-examination in relation to the contents of the letter of termination i.e. Exhibit C15 cannot carry much weight especially where Exhibit C15 is currently before the Court. That Exhibit C15 i.e. the letter of termination served on the claimant was clear and unambiguous as it did not state any reason for the termination of the employment of the claimant. There was also no such thing as housing loan irregularity as a reason for termination on the letter of termination. That this is just to show that the housing loan cannot be conclusively said to be in any way connected to the termination of the claimant’s contract. That DW’s statement during cross-examination that the termination of the claimant’s employment was based on the housing loan irregularities should be disregarded by this Court because it is an addition to Exhibit C15;it would have been a different case if Exhibit C15 did not exist at all or the termination was oral, citingOnwugbelu v. Mezebuo &ors[2013] LPELR-20401(CA).

 

  1. The learned counsel to the claimant had argued that since DW stated that the claimant’s termination was due to the housing loan irregularities, the claimant ought to have been brought under section 4 of the Employee’s Handbook which deals with Regulations and Disciplinary Procedure.In reliance on the principle in Daoudu v. UBA Plc[2004] 9 NWLR (Pt. I.878) 276 at 292, which the claimant’s counsel cited, the defendant submitted that the defendant did not in any way go outside the four walls of the employment contract because in as much as the law allows an employer to terminate the employment of his employee at any time, where there is an agreement which spells out terms of termination of employment, it should be complied with. That this is the reason why the defendant led evidence to show that even if the defendant needs to give a reason to terminate, it had a valid reason to do so.

 

  1. To the defendant, section 4 of the Employees’Handbook relates to specific kind of misconduct listed under section 4.5 of the Employees’Handbook and where the misconduct is grievous, the penalty is a dismissal under section 9.6 of the Employees’Handbook and not termination of employment. That in this instant case, the claimant’s employment was terminated under section 9.7 of the Employees’Handbook and not section 4 of the Employees’Handbook because the Handbook is clear as to what misconducts are to be tried under section 4.In addition, that if the claimant’s employment was determined under section 4 of the Employees’Handbook, then the punishment would have been a dismissal and not termination because section 9.6 of the Employees’Handbook provides that all employees guilty of serious misconduct or in breach of any of the company’s rules and regulations or other terms and conditions of employment may be summarily dismissed without notice or payment in lieu, referring to 7up Bottling Company Plc v. Augustus[2012]LPELR-20873(CA) as to the difference between termination and dismissal. That in this instant case the claimant was not dismissed but terminated and all her benefits and entitlements were given to her.

 

  1. On the issue of fair hearing, the claimant’scounsel had cited University of Calabar v. Essien[1996] 10 NWLR (Pt. 447) 225 at 262 andOlatubosun v. Nigerian Institute For Social and Economic Research[1988] 3 NWLR (Pt. 80) 25 at 52 to establish that the claimant was not given fair hearing in relation to the Housing Loan irregularities. In reaction, the defendant submitted that it already stated that the procedure under section 4 of the Employees’Handbook is not applicable to the housing loan irregularities.In affirming this position, the defendant added that irrespective of the fact that section 4 of the Employees’Handbook was not applicable in the circumstance, the defendant was gracious enough to write several letters to the claimant in relation to the Housing loan irregularities in other for her to rectify same, which letters have already been tendered before the Court.That the claimant also responded in Exhibit D5 admitting the irregularities at the last paragraph of her letter; as such, that the claimant was given enough fair hearing on the issue. Thus that the above authorities cited by the claimant’s counsel are not applicable in this circumstance because the principle of fair hearing connotes that the rights of the two parties must be balanced which has been done in this case, citingMFA &ors v. Inongha[2014] LPELR-22010(SC). Also that the letters written to the claimants could serve as queries to justify termination (and not dismissal) and was not necessarily needed to be headed as such, citingMiaphen v. Unijos Consultancy Ltd[2013] LPELR-21904(CA), which defined queries to mean “to inquire into”, “to ask about”, “to ask question of”, “to interrogate”, “to express doubt concerning the correctness or truth of”, “to have or express doubt”.

 

  1. To the defendant, if it is required to give any reason at all as provided for under section 9.7 of the Handbook, then it had a valid reason to terminate the employment of the claimant, which is that the claimant breached the rules of the company relating to the processing of a housing loan. Also, that the valid reason was made known to the claimant and several letters were exchanged by both parties in relation to the irregularities, which explains that the claimant’s right to fair hearing was never breached.

 

  1. On whether or not the defendant can unilaterally reduce loan periodic payment schedule from 16 years repayment timeline to 13 years repayment timeline and unilaterally increase the mutually agreed monthly deductions from N296,519.00 to N345,708.79, the defendant merely rehashed the arguments it made in its final written address.

 

  1. On whether or not the defendant is caught by the doctrine of estoppel by conduct, the defendant submitted that firstly, the interpretation of section 169 of the Evidence Act 2011 by the learned counsel to the claimant is not the correct depiction of that section. That estoppel in this section works against the claimant and not the defendant in this case. This is because the claimant was the one who misrepresented facts and caused the defendant to act on same.Thus, that the law is that the claimant is prevented from denying the true position of that thing in which he gave false information. That since the claimant had already given false information on Exhibit D1, information in which the defendant relied on in approving the loan, the claimant at this point would not be allowed to deny the true position of the facts which ought to have been given to the defendant while she was applying for the loan, citing Oyerogba v. Olaopa[1998] 13 NWLR (Pt. 583) 509 at 519.

 

  1. On the measure of damages to be awarded to the claimant, the claimant submitted that having argued that the termination of the claimant’s employment was lawful,even if it were not, the remedy to be awarded to an employee who claims wrongful termination is the salary/entitlements which would have been given to him had it been the termination was proper, citing Ativie v. Kabelmetal (Nig.) Ltd[2008] 10 NWLR (Pt. 1095) 399, Imperial Medical Center & Anor. v. Ahamefule[2017] LPELR-42886 (CA), Omale v. University of Agriculture, Makurdi &ors[2011] LPELR-4366 (CA), NEPA v Adeyemi[2007] 3 NWLR (Pt. 1021) 315 at 336 andChukwuemeka v. Shell Petroleum[1993] 4 NWLR (Pt. 289) 512. That the only thing the claimant has a right to claim is what she would have ordinarily been entitled to if the termination was proper; and if that is the case, her case will also fail completely because she had been given all her entitlement as soon as her employment was terminated by the defendant. That the position in Evans Bros (Nig) Publishing Ltd v. Falaiye[2003] 13 NWLR (Pt. 838) 564 at 589 cited by the claimant’scounsel is totally misinterpreted because the position in that case also aligns with the cases just cited. That inEvans Bros (Nig) Publishing Ltd v. Falaiye[2003] 13 NWLR (Pt. 838) 564 at 589, the Court stated that the measure of damages recoverable for wrongful dismissal/termination is prima faciewhat the plaintiff would have earned during the period necessary for the lawful termination of the contract. That the Court also went further to say that an employer is totally under no obligation to retain an employee until he attains the age of retirement. The defendant concluded by submitting that then termination of the claimant’s employment was lawful and the procedure adopted was in accordance with the law; and in any event, the defendant did not in any way frustrate the payment of the claimant’s debt because the repayment was not tied to her employment in any way.

 

COURT’S DECISION

  1. I took time to carefully consider the processes filed and the submissions of the parties in this suit. I must point out that the defendant’s reply on points of law was in the main a rehash of its argument in the final written address. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA)and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). Accordingly arguments of the defendant as to especially misrepresentation, fraud and illegality raised in paragraphs 3.1 to 3.11 of the reply on points of law cannot be accommodated as the claimant had no opportunity of reacting to them.

 

  1. Despite that the claimant is claiming for 10 reliefs as against the defendant, and the defendant is counterclaiming 9 reliefs as against the claimant (counterclaim h being an alternative to counterclaim g), the claimant’s case (and indeed defence to the defendant’s counterclaims) is hinged on a simple submission i.e. that the defendant’s wrongful termination of the claimant’s employment has put the claimant in the predicament of having to fulfill a contractual impossibility; considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the defendant has been abruptly severed. In other words, the wrongful termination of her employment by the defendant has frustrated the repayment of the housing loan she took from the defendant. It is for this that she claims to be entitled to her reliefs as well as the defendant being disentitled to its counterclaims. The logic of this submission by the claimant would then mean that a finding by this Court that the termination of the claimant’s employment by the defendant is not wrongful would automatically mean that the claimant loses her case (reliefs) and the defendant wins its case (counterclaim). The surprising thing in all of this is that the one Supreme Court decision pronouncing on the issue at stake cited by the defendant i.e. Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 was not remarked upon at all by the claimant. Not one word on the case by the claimant throughout her submissions. I am tempted to cite this case, apply it and close this case; but I am enjoined by law to pronounce on the issues variously canvassed by the parties.

 

  1. Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 talked of “the context of the facts of this case or the prevailing law”. This means that the Supreme Court stressed the primacy of the context of the case and the prevailing law in coming to the conclusion it did. What then is the context of the facts of the instant case and the prevailing law?

 

  1. First, the context of the facts of the instant case. The fact of the claimant being an employee of the defendant, which employment was terminated by the defendant is not in doubt. The claimant who was Assistant General Manager I i.e. Chief Financial Officer (CFO) had applied vide Exhibit C6 dated 28th June 2013 for a housing loan of N45 Million to enable her purchase a 4 bedroom duplex but got N42 Million instead from the defendant. The claimant was later vide Exhibit C4 dated 20th December 2013 appointed Chief Compliance Officer (CCO) in addition to being CFO and required to be reporting to the Managing Director (MD). Exhibit C6 was addressed to the MD and signed by the claimant. Attached to Exhibit C6 is a copy of the letter of offer from Messrs Dillon Consultants, which letter is also dated 28th June 2013 and also addressed to the MD. In the first paragraph of the letter from Dillon Consultants, Dillon Consultants referred to “your negotiation to purchase a unit Four (4) Bedroom duplex for NGN45,000,000.00 (Forty Five Million Naira Only) and are pleased to confirm the offer on the following terms and conditions subject to contract”. It is curious that both letters are dated 28th June 2013, that is, issued on same day. How come that an application by the claimant for housing loan dated 28th June 2013 has as letter of offer a letter also dated 28th June 2013 from Dillon Consultants to the MD of the defendant referring to the MD’s negotiation to purchase a 4 Bedroom Duplex? When did the MD of the defendant negotiate with Dillon for the purchase of a 4 bedroom duplex, which negotiation/offer is now being used by the claimant to apply for a housing loan from the defendant? Exhibit C7 is supposedly the recommendation by the MD to the Board Establishment Committee recommending that the claimant be given the loan of N42 Million based on a repayment period of 16 years taking into account the need for the claimant to take home the required monthly 331/3%. Exhibit C7 is, however, not dated and not signed. Exhibit C7 as a recommendation ought to be signed and dated. Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47, Sarai v. Haruna [2008] 23 WRN 130 held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. Andby Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA), it is the law that unsigned and undated document has no evidential value. This means that Exhibit C7 has no evidential value. Exhibit C7, not signed or dated, fails the admissibility test and so has no evidential value. It is accordingly discountenanced for purposes of this judgment.

 

  1. Exhibit C8 dated 2nd July 2013 is, however, the extract from minutes of the meeting of the Board Establishment Committee of the company held on 2nd July 2013 wherein it was resolved that the housing loan of N42 Million be given to the claimant with a repayment period of 16 years at 4% interest rate per annum starting from July 2014. The claimant was thereby required to submit certain documents and comply with the existing terms and conditions in respect of loan granting. The documents the claimant was required to submit were: copy of the deed; first legal mortgage on the property in favor of the defendant; fire policy in the sum of the loan with loss payable clause in favor of the defendant; full value mortgage protection life assurance policy with premium payable for at least 5 years in advance during the term of the loan of the interest of the defendant; valuation by a firm of estate surveyors and valuers acceptable to the defendant; and report by solicitors acceptable to the defendant that a search was conducted on the title to the property including the vendor as bona fide owner thereof on completion of the purchase. By Exhibit C9, also dated 2nd July 2013, the defendant communicated to the claimant the approval of a loan of N42 Million recoverable over 16 years at an interest of 4% per annum starting from July 2013. Once again, it is curious that Exhibits C8 and C9 are both dated 2nd July 2013, that is, the meeting approving the loan held on the same day that the letter conveying the approval of the loan was issued. Because Exhibit C8 is an extract, it is not known when the meeting approving the loan commenced, how long it lasted and when it ended. Curiously too, Exhibit C8 is signed by “Director” and “Secretary” without indicating who the “Director” is and who the “Secretary” is.

 

  1. It would appear that the claimant’s loan was approved even before she filed the loan application Form. Exhibit D1 is the loan application Form the claimant filled. Column 12 of Exhibit D1 has the words”Prepared By” under which are the words “HR/Admin” and then “Date”. In other words, the form is meant to be prepared by HR/Admin and dated by same HR/Admin. But on the face of Exhibit D1, the words “HR/Admin” are canceled and in its place are superimposed the words “AGM(F)”. Under cross-examination, the claimant admitted to preparing Exhibit D1. This means that it was the claimant who cancelled “HR/Admin” and superimposed “AGM(F)” therein. The date she did this is 03/07/13 i.e. the day after the loan was approved (the loan was approved on 2nd July 2013). This is once again curious. Column 13 of Exhibit D1 is one where the amount approved by the General Manager (Operations) is supposed to be indicated. It is blank. All we have there is the signature of the MD presumably overriding any requirement of an input from the General Manager (GM). Under cross-examination, the claimant acknowledged that there was a GM, and she was an Assistant GM (although the GM was not her boss). The claimant would further testify under cross-examination that Exhibits C5 says that the application letters from the staff for loan should be routed through the Head of Department to HR Department. She went on to acknowledge that HR/Admin Department processes loans, but that in her own case, as per Exhibit C5, she submitted her loan application to her direct supervisor, the MD, andwhatever, the MD did, she does not know. She continued that she does not know if her own loan application was processed by the HR/Admin Department. She acknowledged that the MD signed Exhibit D1, which she prepared. After first saying that she does not know if her own loan application was processed by HR/Admin Department, she would later be categorical in saying that it was not prepared by HR/Admin Department. Contradictions abound here. First, the claimant filled her loan application form after a loan of N42 Million was approved and even at this, she still filled in N45 Million in the column for “Loan Request”. The loan application form requires the input of HR/Admin Department, yet the claimant’s form (Exhibit D1) had none. Because the claimant prepared Exhibit D1, she made sure no input came from HR/Admin Department. She dealt directly with the MD. All the information in Exhibit D1 (information that the defendant vehemently contested all through its submissions) as to actuary valuation of gratuity, basic salary, Total Basic Allowances i.e. annual allowance (Transport, L/Voucher and Utility), net repayment (before loan), net balance (if loan is granted), repayment period according to collective agreement (once again the claimant cancelled “collective agreement” and superimposed “company policy”) and 331/3% of gross monthly take home pay, were all filled by the claimant, and no one cross-checked the accuracy of the information. Only the MD, who the claimant acknowledged under cross-examination was a Vet Doctor but also had other insurance qualifications with no accounting qualification to her knowledge, and who relied on the claimant on financial dealings though he had his other sources, is the only other person who signed Exhibit D1. So what do we have here: a claimant who applied for a loan virtually approved it to herself. Note that the letter from Dillon talked of a negotiation between Dillon and the MD even when it was the claimant who attached the said letter from Dillon to her loan application letter (and that both claimant’s loan application letter and that from Dillon are dated same day). The argument of the claimant that because she reports directly to the MD as such she could by-pass HR/Admin in applying for the loan says very little about the need for probity and transparency. I think that the claimant was just being clever and taking advantage of her position when she applied for the said loan. This is just one loan application that does not smell right at all; and I so find and hold.

 

  1. Exhibits C10 and C14 are supposedly tables of payments. In Exhibit C10, the payment commences on 26-Jul-2013 in respect of a loan of N42,000,000.00 with an annual interest rate of 4% at 12 payments per year in a term of 16 years. The table of payments in Exhibit C10 is drawn from 26-Jul-2013 to 26-Jun-2029. In Exhibit C14, the payment in respect of a loan of N42,000,000.00 with an annual interest of 4% at 12 payments per year in a term of 13 years commences on 26-July-2013 and ends on 26-Jun-2026. To the extent that both Exhibits C10 and C14 have no nexus with either the claimant or defendant, and respectively draw up a payment plan from 26-Jul-2013 to 26-Jun-2029 and 26-July-2013 to 26-June-2026, they evidence nothing of value to the determination of this case. They are not evidence of any payment because they are futuristic in respectively ending on 26-Jun-2029 and 26-Jun-2026, and they do not indicate in respect of who they relate to. Of course, none of them is signed by anyone. They accordingly fail the admissibility test and so have no evidential value at all; and I so find and hold. They will thus be discountenanced for purposes of this judgment.

 

  1. One other reason why especially Exhibit C10 will be discountenanced for purposes of this judgment is when it is compared with Exhibits C12, C12(a), C12(b), which respectively are pay slips of the claimant for the months of October, November and December 2015. Exhibits C12, C12(a) and C12(b) each show a deduction of N296,519.00 for building loan. It should be noted that Exhibit C10 shows this deduction to be N295,518.40, quite different from the sum of N296,519.00 seen in Exhibits C12, C12(a) and C12(b). Exhibit C13 on its part is the claimant’s pay slip for December 2015 (Exhibit C12(b) is also a pay slip for December 2015) showing, however, a deduction of N345,708.79 (a sum same with that seen in Exhibit C14) for building loan, presumably when the 16 year repayment period was altered to 13 years thus necessitating an increase in the monthly deduction from the claimant’s salary.

 

  1. Exhibit C11 is a copy of the Deed of Legal Mortgage between the defendant and the claimant. It is not dated, and the column for consent by the Attorney-General and Commissioner for Justice of Lagos State for the Governor of Lagos State is unfilled, meaning that the Exhibit C11 is inchoate.

 

  1. Exhibit D2 dated 16th September 2013 is a letter from the defendant to the claimant complaining that the claimant is yet to submit all the original documents meant to be the collateral for the loan. Exhibit D3 dated 23rd September 2013 is the claimant’s response saying in the main that she will forward the said documents, if they had not already been submitted. Exhibit D4 dated 2nd October 2013 is a letter from the defendant to the claimant rejecting some of the explanations given by the claimant in Exhibit D3. Exhibit D4 at the second page stressed the fact that the claimant is not just the beneficiary of the loan but is the officer in charge of loans; as such, she ought to have verified the documents before approval and disbursement – a case of abuse of office. In Exhibit D4, the MD of the defendant also complained about the information supplied by the claimant that she had a balance of 16 years left of her service when this was not the case given that she was to retire after putting in 30 years of service though she would then be less than 60 years old as well as the fact that the loan amount approved for the claimant was in excess of the 331/3% of her monthly gross salary. Exhibit D5 dated 21st October 2013 is the claimant’s response to Exhibit D4 where she referred the MD to “the loan evaluation form duly reviewed and approved by your good self”. To the claimant, the requirement of meeting the 331/3% of monthly gross salary was complied with at the time of approval until the internal memo of 8th July 2013 which indicated that company policy was to calculate interest only for one year period irrespective of the loan repayment period rather than calculating interest based on the period covered on reducing balance basis, which position accordingly to the claimant was rejected by the union. The reference to the union here is an attempt by the claimant to reap the benefit of an entitlement secured by the union. However, the claimant is not a member of any trade union. Her pay slips, Exhibits C12, C12(a) and C12(b) show nil in the column for union dues deduction. She cannot accordingly take the benefit of trade unionism. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016,Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017 and Mrs Bessie Udhedhe Ozughalu& anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. Despite all, the claimant in same Exhibit D5 stated thus: “…due to [the defendant’s] insistence I offered to adjust my loan repayment period to 13 years as against the present 16 years repayment period”. With this written statement, it is curious that the claimant could still be claiming relief (d). Accordingly, I agree with the defendant that this written statement is an admission by theclaimant, which admission nullifies her relief(d). I so find and hold.

 

  1. Exhibits D6 and D7 are emails respectively dated 1st December 2014 and 6th March 2015 from the GM (Risk Control) of the defendant to the claimant wherein the defendant complained of discrepancy in terms of compliance with the documentation of the loan granted the claimant. The defendant noted that the loan was not secured since the original legal mortgage was not submitted to the defendant, the fire policy expired, and the originals of the sale agreement and deed of assignment were not deposited (only photocopies were). The defendant threatened to foreclose the loan and demand for refund of the loan granted less any amount already paid. Exhibit D8 dated 7th April 2015 is an internal memo of the defendant to the claimant further complaining about non-registration of the mortgage by the claimant and suggesting that the defendant does the registration and bill the claimant. The claimant responded vide Exhibit D9 dated 14th April 2015 proposing a 50% payment ratio between her and the defendant; and by Exhibits D10 dated 23rd April 2015 and D11 dated 8th May 2015, the defendant agreed to the representation/suggestions made by the claimant as per Exhibit D9. Exhibit D12 dated 22/5/2015 is the claimant’s application for Governor’s consent. Here, even in Exhibit D12, it was complained by the Governor’s Office that the claimant did not provide fully the required documents; as such the application cannot be concluded. Exhibit D13 dated 2nd December 2015 is a letter from the defendant to the claimant wherein the defendant asked the claimant to pay immediately the arrears of the outstanding balance of N1,495,133.28 coming from the change in the repayment period of 16 years to 13 years as well as placing “on record that being the CFO, you misled the company by misrepresentation of your balance of service which is highly objectionable”. Exhibit D14 dated 7th December 2015 is a letter from the defendant to the claimant seeking an advice as to the status of the registration and perfection of the Deed of Legal Mortgage by the claimant in favor of the defendant. Exhibit D15 dated 17th December 2015 is similar to exhibit D13, the noticeable difference being that in D15 the Accounts Department was advised to recalculate the claimant’s monthly installment of her housing loan taking into consideration the 13 years remaining service period, which comes to N345,798.79 monthly and pay the claimant’s salary from December 2015 onwards on that basis pending further decision of the claimant’s housing loan. Exhibit D16 dated 5 January 2016 is a letter from the defendant to the claimant complaining that as against the N42 Million the claimant got as loan, she was eligible to only N10,368,254 when she applied for the loan. The claimant was then asked to refund the excess loan on terms of the difference between the two sums. The defendant concluded in Exhibit D16 that it will no longer be able to shoulder the financial burden of the claimant’s loan any more and the issue needs to be sorted out immediately.

 

  1. By Exhibit C15 dated 12th January 2016, the defendant terminated the employment of the claimant with immediate effect. Exhibit C15 simply stated that the claimant’s “services are no longer required”. Exhibit C15 requested the claimant to hand over and surrender all company documents and property in her possession; and that she was entitled to 3 months’ salary in lieu of notice although her accrued allowance and indebtedness to the company will be calculated and paid/recovered (as the case may be) by the Accounts Department. Exhibit D17 dated 13th January 2016 requested the claimant to hand over the defendant’s Hyundai Jeep with Registration No. GGE 342 AV same day. The claimant did not. Exhibit D18 dated 14th January 2016 further requested for the Jeep. Exhibit D19 is same with Exhibit D17. Exhibit D20 dated 21st January 2016 is a letter from the defendant to the claimant informing the claimant of her entitlements and indebtedness upon the termination of her employment. After deducting the claimant’s indebtedness from her entitlements, the claimant still had an outstanding indebtedness of N16,502,877.00 to settle in favor of the defendant.

 

  1. This is the context of the facts of the instant case given which the claimant makes her claims before this Court, the consideration of which will then be laced with the law. What I gather from all these facts is that the claimant acted less than appropriately in securing the housing loan. She took advantage of her position and sidetracked basic requirements dictated by the application form itself such as personally supplanting HR/Admin and dealing directly with the MD, by-passing the GM in the process simply because she thought the GM was not her direct boss. The defendant gave her a long rope when on each occasion it wrote complaining and urging the claimant to rectify things. Unfortunately, the claimant did not. It is the long rope that the defendant gave the claimant that led to the argument as to estoppel on the part of the claimant. I do think that, given the circumstances of this case especially taking into account the fact that the claimant took advantage of her position in the defendant to secure the housing loan in the first place, she is not in a position to talk of estoppel. The submission of the claimant, therefore, that the defendant’s Exhibit C8 (Extracts from the Minutes of the Meeting of the Board Establishment Committee of the Company held at Lagos on 2nd July, 2013) and Exhibit C9 (Approval for Application for Housing Loan dated 2nd July 2013) show a presumption of regularity on the claimant’s Exhibit D1 (claimant’s Loan Evaluation Form) and it is in bad faith, unconscionable and an afterthought to allege Housing Loan irregularities, cannot hold any ground as being a presumption it is rebuttable. And the facts as I have shown all go to rebut the said presumption; and I so find and hold.

 

  1. The claimant had thus argued that section 9.7 of the Employee Handbook states that the defendant may at any time terminate the employment of an employee if found in breach of any of the company’s rules and regulations or the employee is found to be incompetent or not performing.That the purported letter of Termination dated 12th January 2016 did not disclose that she breached any of the company’s rules and regulations or that she was found to be incompetent or not performing as stipulated in section 9.7 of the Employee Handbook. The defence of the defendant is that it had the power to terminate the employment of the claimant at any time and did not need to give any reason as to why the claimant’s service was no longer needed; and that contrary to the laid down procedure and rules of the defendant as stated in section 6 of the Staff Handbook of the defendant, the claimant processed the loan herself as is shown in Exhibit D1 and in so doing did not comply with conditions and procedure set out in section 6 of Exhibit C5. Citing section 9.7 of Exhibit C5, the defendant submitted that it had every right to terminate the employment of the claimant for breaching the company rules relating to the application for loans. The argument of the claimant that the letter of termination (Exhibit C15) did not disclose the reason for the termination which thus makes the termination wrongful cannot stand given that the claimant did not make a case in her pleadings for the application of Convention 158 of the International Labour Organization (ILO) which enjoins that all terminations must have a reason. In ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, however, it was held that an employer who dismisses an employee need not allege any specific act of misconduct on the employee’s part as the ground for the dismissal; it is sufficient if such a ground did exist, whether or not the employer knew of it at the time of the dismissal. The actions of the claimant in the manner she secured the housing loan more than justify the termination of her employment; and I so find and hold. This means that I am satisfied and I hold that the termination of the claimant’s employment is in order. The argument of the claimant that the defendant did not comply with sections 4.2, 4.3, 4.5, 4.6 and 4.8 before invoking section 9.7 of Exhibit C5 (Employee Handbook) and, therefore, wrongly terminated her employment is accordingly rejected.

 

  1. In holding that the termination of the claimant’s employment was in order, I need to correct an impression created by the defendant in its submissions. The defendant thinks that section 9.7 of Exhibit C5 which governs the termination in this instant case is different from section 4 of Exhibit C5. That while section 4 provides for the regulations that govern disciplinary procedure for certain misconducts committed by an employee, section 9.7 specifically provides that the defendant can terminate the employment of its employee at any time if found in breach of any of the company rules. I do not see the difference the defendant sees. If there is one, I think it is an artificial creation of the defendant’s counsel. Under section 4 of Exhibit C5, certain misconducts are enumerated, the punishment of which may be or include termination. Section 9.7 then provides that if an employee breaches any of the rules of the defendant (such breach of rules of course consists of guiding against breach of the misconducts enumerated in section 4) then the employee can be terminated under section 9.7. For instance, item 25 at page 32 of Exhibit C5 provides as misconduct the “signing of documentation committing the company to a financial obligation without any authority or approval”. This misconduct is then interpreted as “entering into an agreement in writing to commit the Company into financial obligation without the approval”. The sanction for this misconduct is “Termination/dismissal depending on gravity”. Everything the defendant said in its evidence and submissions as to irregularities on the part of the claimant in getting the defendant enter into the loan agreement with her in terms of the context of the facts highlighted earlier could easily fall under this misconduct. If for this misconduct the defendant decides to terminate the employment of the claimant, would the termination then not come under section 9.7? And if the defendant chooses to dismiss instead, would this not be under section 9.6? Where then is the difference the defendant is talking of? Accordingly, the argument advanced by counsel to the defendant in paragraph 2.22 of the reply on points of law that section 4 of the Employees’Handbook deals with dismissal while section 9.7 deals with termination, in suggesting that section 4 of the Employees’ Handbook deals with only dismissal, not also with termination, is of course false and very misleading.

 

  1. It is the argument of the claimant that since the contract of employment was in writing and duly signed, any document purporting to vary same must possess similar characteristic of a valid contract and duly executed by the parties at least in similar manner as the earlier contact. For this proposition of law, the claimant placed reliance on Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt.1420) 96 at 116 to 117, where to her the Supreme Court per Galadima, JSC stated interaliathat it is basic elementary law that if, as a matter of contract, parties agree that the terms of an original agreement be varied, the variation must be in writing, or evidence of those new terms will be inadmissible. This case law authority cited only requires that the variation of an original agreement must be in writing. Exhibit D5 wherein the claimant acknowledged offering to adjust her loan repayment period to 13 years as against 16 years even though it was on the insistence of the defendant, satisfies the requirement of writing enjoined by Idufueko. Here the claimant consented to the said variation. It is not for her to accordingly complain. Given the consent of the claimant, the claimant’s argument at paragraphs 6.72 to 6.78 of her final written address in terms of the defendant being caught up by estoppel is naturally uncalled for and unsustainable; and I so find and hold. In any event, l held earlier that the claimant took undue advantage of her position in securing the housing loan from the defendant factoring the fact that the claimant as an interested party side tracked some of the procedures enjoined for an applicant of the said loan in terms of the applicable defendant’s policy.

 

  1. I indicated that the claimant’s case is that the permanent loss of employment has put her in the predicament of having to fulfill a contractual impossibility; considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the defendant, has been abruptly severed. I also bemoaned the claimant for not saying a word on Lewis v. UBA Plccited by the defendant. In Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 at 346 – 347, the Supreme Court per Peter-Odili, JSC (delivering the Leading judgment) had this to say:

The stance of the appellant that his continued retention in the employment of the respondent is a condition precedent to his repayment of the personal loans and his employment having been terminated by the respondent, the enforcement of the personal loans had been frustrated is not sustainable either in the context of the facts of this case or the prevailing law. This is because the contract of employment and personal loans between the appellant and the respondent are two distinct contracts having distinct subject-matters and their duration not co-existent nor can it be said one is dependent on the other or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment or the personal loan or balance thereof.

 

…mere hardship, inconvenience or other unexpected turn of events which have created difficulties though not contemplated cannot constitute frustration to release appellant from that obligation, a situation which not even the death of the appellant, grave as that might be, would not alter the course of events of the repayment as his estate would bear the liability. I anchor on the case of Davis Contractors Ltd. v. Fareham U.D.C. (1956) AC 696.

 

  1. With a decision of this magnitude and the context of the facts of the instant case already highlighted, what more can this Court say or do than to hold that the claimant failed in her case in terms of all the reliefs she prays for? In an earlier case, Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/014, the judgment of which was delivered on 16th February 2018, the claimant had advanced the following arguments: that he did not resign his appointment, rather it was wrongly terminated; accordingly, the car loan repayments were breached and frustrated by the defendant; and the repayment of the car loan cannot come from other sources save his salary. This Court rejected all these arguments and held them to be unsustainable; as such, the claimant was obliged to repay the car loan he took. In like manner, the claimant in the instant case is obliged to pay to the defendant the sum of N16,502,877.00 only being the outstanding sum in terms of the housing loan advanced to the claimant by the defendant. I so find and hold.

 

  1. I must point out that reliefs (f) and (g) claimed by the claimant deal with gratuity while relief (i) deals with her need for career reference report from the defendant as the need may arise. Not a word was said of these reliefs in the submissions of course for the claimant. The sums she claims as per reliefs (f) and (g) are sums the Court was not told how the claimant arrived at them. These reliefs accordingly fail and so are dismissed.

 

  1. As for relief (h), the claim for N50 Million as general damages, it seems that the very reason that the claimant is praying for this sum is just so that she can repay her debt to the defendant. In her words, as per paragraph 6.92 of her final written address: “The Claimant seeks the judicial power and discretion of thisCourt to grant the sought general damages to enable the Claimant defray the outstanding mortgage debt of N16,502,877.00 to protect the subject property from the claws of the defendant”. The claimant by this submission is not denying that she is indebted to the defendant to the tune of N16,502,877.00. Is this a valid ground for the award of general damages? I do not think so.

 

  1. As it is, and given the reasons so far given, the claimant’s case fails in its totality. It is accordingly dismissed.

 

  1. I now turn to the defendant’s counterclaim. Counterclaim (a) is simply the defendant’s defence to the merit of the claimant’s case; and since I have held that the claimant’s case fails in its totality, it is needless considering the defendant’s counterclaim (a). The rest of the reliefs counterclaimed by the defendant relate to two main reliefs: the return of the Hyundai Jeep, which the claimant under cross-examination acknowledged is still with her, and the forfeiture of the mortgage property or refund of the balance of the housing loan, which value is N16,502,877.00. In between these key reliefs, the defendant seeks damages and interest. Exhibit C11 is the Deed of Legal Mortgage between the defendant and the claimant, which I already held is inchoate. I cannot make any forfeiture order in its terms as prayed by the defendant in counterclaim (g). This leaves out the alternative counterclaim (h), the prayer for the payment of the balance of the loan i.e. N16,502,877.00. I already indicated that the claimant is not denying owing this sum, which sum is clearly brought out and shown to be an entitlement of the defendant in Exhibit D20. This being the case, I have no problem in coming to the conclusion that the defendant has made out a case for counterclaim (h), which is hereby granted.

 

  1. Counterclaims (b), (c), (d), (e) and (f) all deal with the company’s properties still in the hands of the claimant especially the Hyundai Jeep with Registration No. GGE 342 AV. Although Exhibit D20 lists out the properties of the defendant with the claimant, the defendant in its submissions said that it was only concerned with the Hyundai Jeep. The response of the claimant to the defendant’s claim for the return of the Hyundai Jeep is that the defendant gave the Hyundai Jeep with Registration Number GGE 342AV to the claimant for her benefit and as part of her compensation package in accordance with section 5.6 of Exhibit C5 (Employee Handbook). Section 5.6 of Exhibit C5 provides that an official car may be included in an employee’s compensation package if it is provided as a benefit. However, it is not stated the categories of employees that have cars as benefits. The claimant did not prove to this Court how the Jeep in issue was provided to her as benefit to warrant her now owning it. Exhibit D20, which calculated the terminal benefits of the claimant did not indicate the Jeep to be a benefit; instead the claimant was asked to return it. The claimant is accordingly bound to return the said Jeep; and I so find and hold. A similar scenario was the case in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016, and this Court ordered the return of the car in issue in that case.

 

  1. As for counterclaims (e) and (f) I agree with the claimant that they are not supported by any evidence before this Court;no evidence was led to support the pleadings in their regard. Paragraph 67 of the statement of defence simply states that the claimant is still in possession of the company car and so is depriving the defendant its use, which deprivation caused the defendant to incur transportation expenses for members of staff going on company business. How the defendant came by N50,000 a day is something not told to this Court. Counterclaims (e) and (f) accordingly fail and so are hereby dismissed.

 

  1. Counterclaims (h) and (i) deal with interest at 50%. Counterclaim (h) seeks for interest at 50% from January 2016 till date of judgment. In this sense, what the defendant seeks is pre-judgment interest. Regarding counterclaim (i), however, the defendant did not indicate whether it is pre or post-judgment interest. If it is pre-judgment interest, this Court does not award same. See Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC. To the extent that counterclaims (h) and (i) deal with pre-judgment interest, they accordingly fail and are rejected.

 

  1. On the whole, and for the reasons given only counterclaims (b) and (d), to the extent only that they relate to the Hyundai Jeep, and counterclaim (h), to the extent only that it relates to repayment of the outstanding sum of N16,502,877.00, are grantable and herby granted. Accordingly, it is hereby declared and ordered as follows:
  • It is hereby declared that by virtue of item six (6), under sub-section 9.1 of Section 9 of the Prestige Assurance Plc Staff Handbook, the claimant is mandated to hand over the company property in her possession upon leaving the company i.e. the Hyundai Jeep, with Registration Number GGE 342 AV upon leaving the defendant.
  • It is hereby declared that the claimant’s continued custody of the company car i.e. the Hyundai Jeep, with Registration Number GGE 342 AV is unlawful and illegal.
  • It is hereby ordered that the claimant shall hand over within 30 days of this judgment the company car, the Hyundai Jeep, with Registration Number GGE 342 AV, to the defendant unconditionally.
  • It is hereby ordered that the claimant shall pay to the defendant within 30 days of this judgment the sum of N16,502,877.00 (Sixteen Million Five Hundred and Two Thousand, Eight Hundred and Seventy-Seven Naira) only being the remaining sum to the defendant in terms of the housing loan advanced to the claimant by the defendant. Failing this, the said sum shall attract interest at the rate of 10% per annum until fully paid.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

admin

Website:

Related Story