IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 6TH OF MARCH, 2019
SUIT NO: NICN/AK/04/2017
BETWEEN
MR. ISAAC OJO AROKUN
CLAIMANT
AND
STERLING BANK PLC
DEFENDANT
REPRESENTATION
A.C. Ajakaiye with him, O.B. Adeyanju, B.O. Madaki (Mrs), Y.F Olobayotan (Miss) for the Claimant
Abiodun Olateru with him, Lawal O. Alabi, B.J Akinsete for the Defendant
JUDGMENT
The claimant approached this Court via a General Form of Complaint filed on 10thJanuary, 2017, claiming the following reliefs against the defendant:
1. A Declaration that the defendant’s termination of the appointment of the claimant from it’s Bank vides its letter dated 15th September, 2009 without any justification and the refusal to pay him any part of his terminal benefit from the time of the aforementioned termination of appointment until the month of May, 2015 is unwarranted, unjustifiable and most uncharitable to the claimant, of which acts amounts to a defamation of the character of the claimant and a portrayal of him as an irresponsible, fraudulent and unreliable employee, not worthy of meriting his position as a Manager in the employment of the defendant in the eyes of members of the public, of which defamation will entitle the claim of damages in remedy thereof.
2. An Order of the Court for the payment of the sum of N25,000,000.00 (Twenty Five Million Naira) to the claimant as compensation for the defamation of his character by the defendant.
3. An Order of the Court for the payment of the outstanding balance of N5,899,921.66 (Five Million, Eight Hundred and Ninety-Nine Thousand, Nine Hundred and Twenty One Naira, Sixty-Six kobo) only of his actual gratuity and terminal benefit which is still being withheld by the Bank.
4. An Order of the Court for the payment of the sum of N5,178,428.37 (Five Million, One Hundred and Seventy Eight Thousand, Four Hundred and Twenty Eight Naira, Thirty-Seven kobo) to the claimant, being accrued interest on the total gratuity due for payment to the claimant from the date of his disengagement from the defendant’s bank on September 15, 2009 to the month of May, 2015 when the bank made part payment of the sum of N5,074,802.00 (Five Million, Seventy Four Thousand, Eight Hundred and Two Naira) only into his Bank Account of which he received alert in respect of on Wednesday the 27th day of May, 2015 out of the actual amount of N10,974,724.84 (Ten Million, Nine Hundred and Seventy Four Thousand, Seven Hundred and Twenty Four Naira, Eighty Four kobo) only which he is entitled to by virtue of his length of service with the bank vis-a-vis the terms and conditions of his employment as spelt out in his letters of employment and the Sterling Bank Staff Handbook.
5. An Order of the Court for the payment of the sum of N909,717.93 being the further interest accrued on the outstanding balance of N5,899,921.66 of the claimant’s actual gratuity and terminal benefit which is still being withheld by the bank from the month of June, 2015 to the time of filing this suit in December, 2016, calculated at the rate of 7% per annum.
6. An Order of the Court for the payment of interest at the rate of 7% on the outstanding balance of N5,899,921.66 of his actual gratuity and terminal benefit which is still being withheld by the Bank from the time of filing this suit until the date of final judgment in respect thereof and an interest of 10% on the judgment debt awarded to the claimant in this case until the final liquidation of the said judgment debt.
7. An Order of the Court for the N5,000,000.00 as general damages for the financial stress, embarrassment, inconveniences, and the psychological trauma caused the claimant and members of his family for the refusal of the defendant to pay him any part of his terminal benefit until the month of May, 2016 and the withholding of the payment of the outstanding balance in respect thereof up to the time of the judgment of the Court.
8. For the cost of prosecuting this case, assessed as N2,500,000.00.
It is claimant’s case that he was an employee of the defendant’s bank until the termination of his appointment vide a letter of 15th September, 2009. That he had been in the employment of MAGNUM Trust Bank Plc, which was involved in the merger of the Sterling members bank, which culminated into the transfer of his employment into the defendant’s service by the letter dated December 29, 2005 and thereafter promoted to the position of a Manager through the letter of 7th December, 2006. To the claimant, the termination of his appointment was purportedly predicated on false allegation of wrongful approval of loan facility to a customer named Desmarine Offshores Ltd (personally represented by one Chief Alamene) of which customer applied for LPO finance of N18M and performance bond of N4.5M, totaling N22.5M for the purpose of supplying 3,000 metric tons of petrol via Ocean going Vessel from Port Harcourt to Lagos valued at over N219M. He continued that as a Manager, his roles in respect of the loan facility were consistent with his official schedules and in the interest of the defendant. That the defendant, without previous query or warning letter to him of any error in respect of the said loan transaction, placed him on an indefinite suspension from August, 2008, which eventually led to the termination of his employment. That by the approval of the bank’s management, he engaged the Nigeria Police, in consequence of which the customer was arrested and was transferred to State CID at Akure and later moved to Special Fraud Unit (SFU), Ikoyi Lagos. That the customer made representation to the Police that he (claimant) linked him with one Mr. Kayode Ayeniyo, who furnished security document that backs up the facility and in addition, that he sent the sum of N450,000 (Four Hundred and Fifty Thousand Naira) to him (claimant) of which culminated to his arrest and detention at various stages in the cause of investigation. But that further facts however revealed that the said sum was given to him for the purpose of payments of the necessary statutory fees on his behalf in respect of loan documentation and that he obtained necessary receipts for and on behalf of the customer.
The claimant however, stated that in the course of the police findings, he was released from detention while the customer owned up that it was him who is liable to the bank in respect of the outstanding facility, wherein he entered into an arrangement with the bank on how to liquidate the outstanding balance of the loan, of which he pleaded to be allowed to pay N35,000,000 (Thirty-five Million Naira) as full and final payment of the loan, which the bank agreed to vide customer’s request letter and bank’s approval letter dated April 2nd 2009 and 25th May, 2009 respectively. It is his further averment that the defendant’s refusal to pay his terminal benefit despite repeated plea and the termination of his appointment is unwarranted, unjustifiable and most uncharitable to him of which amounts to defamation of his character among other things.
The claimant calculated the balance of N11, 418,937.22 as his actual gratuity and terminal benefits which is still being withheld by the defendant as follows:
* Actual Gratuity and Benefits due for payment – N10,974,724.84
* Less Gratuity and Benefits paid by the bank – N 5,074,802.00
Balance due for payment=N 5,899,921.66
Breakdown:
* Gratuity due for payment – N8,071,698.74
* Less Gratuity paid – N4,484,277.08
=N3,587,421.08
* Plus amount used to amortize Status Car
in lieu of Transport Allowance for 2.5 years-N2,312,500.00
TOTAL BALANCE DEMANDED = N5,899,921.66
The defendant in its statement of defence filed on the 11th May, 2017 wherein it stated that the claimant deliberately misled its Executive Management and fraudulently obtained approval for the facilities granted to various customers which are yet to be repaid and particularly, that he acted unprofessionally and inconsistent with his official schedules as enshrined in the defendant’s handbook towards the processing of the facility to Desmarine Offshores Limited. The defendant stated that the claimant’s letter of termination did not state any reason for his termination and that his indefinite suspension was due to his inability to improve his performance in line with its (defendant) memo placing him on probation as he had many un-performing loans in respect of which the customers were not servicing. That before the claimant’s service was terminated; he appeared before the defendant’s Audit Committee on June 22, 2009 which considered the review of his indefinite suspension and also Disciplinary Committee on June 26, 2009. The defendant averred further that it was sequel to its petition on August 8, 2008 to the Assistant Commissioner of Police, State C.I.D Akure against Desmarine Offshores Limited and its alter ego, Chief Ebi Lloyd Alamene and the sole effort of its recovery agent (Abel Osuji & Co.) that Chief Alamene was arrested and made confessional statements implicating the claimant and that all the persons involved in the procurement of the title document which misrepresented the property used as security for the disbursement of loan facilities to the abovementioned company including the claimant were apprehended by the police and would be charged in a Court of competent jurisdiction after investigation. It is further stated that the claimant’s terminal benefits could not be paid as he was yet to be cleared of the allegations against him, that the one paid in 2015 was based on moral grounds and not to exonerate him.
The defendant pleaded that it has not in any way defamed the claimant as the role of the claimant in the alleged fraudulent act was confirmed by Mr. Kayode Aiyeniyo who the claimant personally introduced to Desmarine Offshores Ltd and also as the claimant knew that it was unprofessional conduct to accept cash deposits into his account from its customer. It stated that the claimant was given a fair hearing at both the Audit and Staff Disciplinary Committee meetings and was never put through any harassment, intimidation and unjustifiable detention at its instance. Also that his staff exit form never stated that he was disengaged from service for fraud as investigation into the Desmarine Offshores Ltd transaction is still ongoing. Defendant went on to aver that the sum of N5, 074,802.88 which was eventually paid to him is the correct amount due to him based on the computation of his services for 5 years excluding the period he was on suspension, it is also stated that the claimant had not suffered any damage or any wrong to be entitled to any of the reliefs claimed in this suit.
During trial, the Claimant testified for himself as CW, he adopted his sworn depositions on oath as his evidence in his case. He tendered some documents which were admitted in evidence marked Exhibits OI–O19. The Defendant testified through one Olatunji Bajowa and Adebusola Scere as DW1 and DW2, respectively, they adopted their witness statements on oath dated 11th of May,2015 and also tendered some documents which were admitted by the Court and marked ExhibitsOB-OB4.
At the close of trial, parties filed their respective final written addresses, the defendant filed its address on the 9th of October, 2018, a sole issue was framed for the determination of this suit, viz:
Whether the claimant upon a preponderance of evidence, has proved unlawful termination of his employment with the defendant and consequently is entitled to relief from this Court and to the ancillary reliefs claimed.
The learned defendant counsel argued that the claimant in the instance case failed to place before this Court sufficient evidence to prove that his employment was terminated in a wrongful manner and that since he has failed, refused and neglected to place before the Court any termination letter stating thereon that his employment was terminated based on fraud as alleged, the Court should not speculate as to the reasons why his employment was terminated reliance was placed on the cases of Ike v. Ugboaja [1993] 6 NWLR (Pt. 301) pg 539 @ 545 para B, Idoniboye-Obu v. NNPC [2003] 2 NWLR (Pt. 805) pg 589 @ 630, paras B-D and A.B.C Plc v. N.T.S. (Nig) Ltd [2007] 1 NWLR (Pt. 1016) pg 596 @ 626, para E. Counsel went on to urge the Court to dismiss the claimant’s claim for defamation for failing to plead and prove: a false statement that was made; a statement capable of a defamatory meaning; a statement that is of and concern another living person; publication to a third party; some degree of fault on the part of the defendant and a statement harmful to his reputation, which are essential requirements to satisfy an action for defamation. It is also the contention of the defendant that a claim for defamation is not one of the jurisdictions which this Court is imbued with by virtue of its establishment Act as such it should be discountenanced. See the case of Sun Publishing v. Aladinma Medicare Limited [2016] 9 NWLR (Pt. 1518) pg 557 at 590 – 592 and Nika Fishing Co. Limited v. Lavina Corporation [2008] 16 NWLR (Pt. 1114) pg 509 @536, paras B-F.
Moreso, the defendant submitted that there are no particulars of how the claimant arrived at those figures in reliefs 2 – 8, neither was there any evidence proffered in support of the claims to assist the Court in coming to an informed decision. Counsel then urged the Court to hold that the claimant’s entitlements have been correctly stated in Exhibit OB 1 and to also hold that Annexure A attached to Exhibit IO19 is unhelpful. Conclusively, Counsel urged the Court to dismiss the claimant’s claims in the interest of justice.
The claimant’s final written address was filed on 15thNovember, 2018 wherein five issues were brought up for determination:
1. Whether the defendant by its actions and conduct in the treatment of the claimant, while alleging him of being fraudulent in the handling of the loan application of a defaulting customer, of which report and investigation by police exonerated the claimant, while the defendant was vehement in stigmatizing him, painting him like a common criminal and eventually terminating his appointment on 15/09/2009, while refusing to pay his terminal benefit for a period of over 6 years is ever justifiable and not condemnable.
2. Whether the defendant’s bank do not operate by credit policy guideline with which its needs in the processing of loan application, appraisal, document evaluation loan, approval and disbursement to the customer that applied to the bank for loan.
3. Whether the claimant had exercised the discretion required of an officer of his status to the benefit of the bank of which the bank had actually taken benefit of the claimant’s discretion.
4. Whether the period of the service of the claimant with the defendant had not commenced from the claimant’s days with Magnum Bank Plc, and running through to the time of his being absorbed into the defendant’s bank until his eventual termination from the bank on the 15th September, 2009.
5. Whether the claimant is entitled to the payment of his termination benefit on the basic of his own calculation, having puts in at total number of over six years into the service of the defendant’s bank.
It is the contention of the learned claimant counsel on issue one that the defendant, by its act of heaping blames attributable to various other officers and departments of the bank on him, by virtue of his vulnerable standing as an employee of the bank is unwarranted, unjustifiable and most uncharitable and damning on his person and reputation as he commended the Court to the case of Katto v. CBN [1999] 6 NWLR (Pt. 607) pg 390 at pg 414, paras F-H. He further submitted that the defendant had breached the contract of his employment by its failure to subject the termination of his employment to the provisions of the bank’s handbook(Chapter 11, paragraphs 11.1, 11.2.1, 11.3, 11.4and 11.4.1), the attention of the Court was also advertised to paragraph 4, sub-paragraphs 3-8 of the claimant’s Further Statement on Oath, of which the claimant contested that the defendant had also failed to apply the Credit Policy Guidelines (CPG) in banking services in the handling of the defective loan facility granted and disbursed to Desmarine Offshore Service Ltd. The Court was urged to hold that the actions of the defendant against the claimant in relation to the processing of the defective loan facility and the claimant’s employment termination as well as holding on to the payment of his terminal benefit for a period of over 6 years is wrongful, non-justifiable and most condemnable.
With regards to issues two counsel adopted his submission on issue one and further submitted that the defendant, having admitted under cross examination that it operates under the CPG aforementioned, had failed to abide by its own guideline, it is estopped from laying all the blames for the non-diligent investigation of the title document presented by the defaulting customer on the claimant. See the case of Alhaji M. Lwan v. Alhaji Shettima [2001] FWLR (Pt. 71) 869 @ 1880 C.A.The Court was urged to hold that apart from the evidence of the claimant as contained in his averment in paras 4(7), (8), (9), (10), (11) of his Further Statement on Oath, the admission of DW1 under cross-examination needs no further prove on this same issue.
On issue three, learned counsel contended that he had adduced evidence to the effect that at all material time, while in the service of the defendant, he had exercised reasonable discretion that had earned the defendant good businesses for which it had taken benefits thereof and that neither the defendant nor the defaulting customer or any other person had been able to adduce any evidence to the effect that he had acted for the purpose of gaining any pecuniary interest to the detriment of the defendant. The Court was therefore urged to hold that the defendant had failed to discharge the onus placed on them in respect of the crime allegation against the claimant, while he had acted in good faith in promoting its business interest of which it had actually taken benefit thereof. Reliance was placed on the case of APC v. PDP [2015] 62 (Pt. 1) NSCQR 1 at p. 80.
In addressing issues four and five, learned counsel adopted his earlier submissions on issue 1-3 and posited that having adduced evidence to the effect that his appointment had been wrongly terminated and that the defendant having seen the need to pay his terminal benefit, it behooves on it to pay same according to the terms and conditions of his employment as contained in pages 48 and 49 of the defendant’s Staff Handbook, while he relied on the judicial authority of Idufueko v. Pfizer [2014] 58 (Pt. 1) NSCQR 601 at p. 622.Learned counsel urged the Court to grant all the reliefs he sought before it.
I have carefully examined all the processes filed in this suit by both parties and find that the issue the consideration of which would meet the justice of this case is Whether the Claimant has proven his case to be entitled to the reliefs sought?
First, it is imperative for me to discuss a relevant issue discovered on the face of the complaint filed before this Court on the 10th of January, 2017, I observed that the reliefs claimed by the claimant on the Complaint (Form 1) are at variance with that in the statement of fact also filed before this Court which establishes the cause of action, however, there is no record of any amendment the extent of the claimant’s claim in this suit, the appropriate question then is which of the reliefs filed is for the consideration of this Court; is it the one in the General Form of Complaint or the Statement of Fact in view of the inconsistency between both of them? In the case of Alhaji Abdulkareem Laaro Buhari & Anor v Alhaji Muhammed Aliyu Adebayo & ors [2014] LPELR 22521 CA, The Court of Appeal, Per Akeju JCA @ pg 24 paras B-E held that; “The superiority of a statement of claim over the writ is in respect of the claim averred therein, as it is settled law that where a relief claimed in the statement of claim differs from the writ, the statement of claim supersedes the writ”. Therefore, the position of the law is material and firm that a statement of claim supersedes the writ of summons, hence if a relief is claimed in the writ of summons but differs from the reliefs in the statement of claim, it is however deemed to have been abandoned and the reliefs endorsed in the statement of claim which is not in the writ survives. See also the cases of Daniel Holding Ltd v UBA Plc [2005] 7SC (Pt1)18; TaloTuwan Sunday v. Zenith Bank Plc [2015] 56 NLLR (Pt. 192) 470; Elf Nig Ltd v Sillo [1994] 6 NWLR (Pt 350)258. Thus, I find support in these decisions and hold that the reliefs adumbrated in the statement of facts would be adopted for the effectual determination of this case. I so hold.
Now, to the substantive issue, it is claimant’s contention that the termination of his appointment by the defendant by its letter dated 15th of September, 2009 is without justification and the refusal of the defendant to pay him any part of his terminal benefit from the time of his termination till May, 2015 is unwarranted, unjustifiable and most uncharitable of which acts amounts to a defamation of his character and a portrayal of him as an irresponsible, fraudulent and unreliable employee, not worthy of meriting his position as a Manager in the employment of the defendant in the eyes of members of the public.
It is the law of common place that in a master and servant relationship as in this instance, where an employee alleges wrongful termination/dismissal of the employment by the employer, the onus lies on him, in law to prove that the termination of his appointment was wrongful in order to succeed in the claims he makes against the employer. This position of the law is firmly predicated on the fact that it is the duty of the claimant to prove his case to be entitled to the reliefs he seeks, as it is pertinent that the evidential burden of proof lies on the party who assets, Sections 131-137 of the Evidence Act, 2011 lays down the fundamentals of such proofs, See also the cases Anagbado v Faruk [2018] LPELR 44909 SC; Nigeria Army Council &Anor v Erhabor [2018] LPELR 44958 CA; Mr. Cosmos Onah v. Mr Desmond Okenwa & Ors [2010] LPELR-4781 CA; Mr. Alexander Okoh & Ors v. University of Lagos &Anor [2010] LPELR-4719 CA.
The law is long settled that parties are bound by the terms of their contract and same enforceable, so long as the employer acts within the terms of the contract, see the cases of BPS Construction &Engineering Co. Ltd v. FCDA [2017] LPELR-42516 SC, CBN v. Interstella Communication Ltd &Ors [2017] LPELR-43940 SC. All that the law requires from the claimant is to prove his case by drawing the attention of the Court by viable evidence to how the terms of his contract was breached, see the case of Union Bank v. Salaudeen [2017] LPELR-43415 CA. By Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); “A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same”. The claimant’s case borders on wrongful termination and claim for payment of terminal benefits. A careful examination of the evidence before the Court discloses that the claimant tendered exhibits IO (claimant’s letter of employment dated August, 7th 2003) Exhibit IO1 (claimant’s transfer of employment dated December, 29th 2005) and Exhibit IO15 (Sterling Bank Staff Handbook). It is plain in Exhibit IO15 (Sterling Bank Staff Handbook) at page 38 particularly at clause 11.4 that severe offences include but not limited to;
“…..
v. Theft/Fraud/Defalcation/Embezzlement.”
Also clause 11.4.1 also provides for Disciplinary Procedure for Major/Severe Offences thus;
“(i) if indicted, you will be given a query from your Supervisor/Human Resources or Inspection Units and required to give responses.
(ii). You may be required to go on suspension pending the final decision on the allegations leveled.
(iii). Once investigations have been carried out, you may also be required to appear before a Disciplinary Committee if you have a case to answer.
(iv) Executive Management reviews and ratifies/nullifies/amends decisions as the case may be.
(v) Executive Management and then subsequently the Board may hear appeals from you, if you are dissatisfied with the outcome”
Also clause 13.3.3 provides for Termination of Employment at page 49 thus;
In event of a termination of employment, you will be given notice in writing of the termination or payment of salary in lieu of such notice.
The basis for termination of your appointment may be any of the following reasons;
Disciplinary
Performance (consistent unsatisfactory performance over two performance appraisal periods.)
Redundancy
In the event of a termination of your appointment, you are entitled to all your separation benefits if you are eligible. You will however be required to settle all outstanding indebtedness to Sterling bank and also return all the Bank’s property in your possession immediately.”
From the foregoing it is clear that where an employee commits a severe offence before his services can be dispensed with by the Bank, he will first and foremost be issued a query by his Supervisor/Human Resources or Inspection Units and be required to proffer responses therein. Thereafter he may be required to go on suspension pending investigation. He may be required to appear before a disciplinary committee to make representation. The Executive management of the defendant will review, ratify, nullify and/amend decisions and subsequently the Board may hear appeals from him, if he is dissatisfied with the outcome. Now, was this procedure followed in terminating claimant’s employment by the defendant? The claimant in this suit approved a credit facility to a customer named Desmarine Offshores Ltd (personally represented by one Chief Alamene) who applied for LPO finance of N18M and performance bond of N4.5M, totaling N22.5M which according to the defendant turned out to be a fraud. Consequent upon which the claimant was indefinitely suspended by the defendant on the 5th of August, 2008. He appealed to the defendant to review his suspension and the defendant on the instructions of the Executive Director South Treasury & Public Sector reviewed same on the 22nd of June, 2009 exhibit OB1 and recommended as follows;
“1. The Current efforts at recovery of all the outstanding facilities should be intensified.
2. Management should not grant Isaac Arokun request for a favourable review of his suspension in view of the role he played as highlighted in our findings.
3. Isaac Arokun has proven himself to be of questionable character based on the findings above. He should therefore be DISMISSED from the services of the Bank.
4. In view of the materiality of amount lost by the Bank due to his fraudulent act, we recommend further that Isaac Arokun should be handed over to the Police for prosecution in line with BOFIA 43 (1C)”
Also, by exhibit OB2, the defendant held a Staff Disciplinary Committee on the 26th of June, 2009 wherein the claimant was invited to make representations wherein he denied forging the documents that led to the fraud. The Committee upon conclusion recommended at page 7 of exhibit OB2 that;
“The Committee suspected that Isaac Arokun colluded with some customers of Akure Branch in arranging collaterals.
The Committee directed that Arokun should continue with the recovery efforts and that the issue would be reviewed in the next three months.
The Committee also directed that Isaac Arokun and the Regional Recovery Officer (South West) should make joint calls to the customers and give the Committee monthly reports on their progress.
It was also directed that Isaac Arokun should remain on suspension with half pay pending the Committee’s review of the case in three months”
The defendants on the 15th of September, 2009 terminated the claimant’s appointment on the basis that his services are no longer required. Now a pertinent question that comes to mind is, was claimant’s employment terminated wrongfully. I answer same in the positive as there was nowhere on the face of the documents tendered before the Court where it was shown that the claimant was issued a query on the alleged offence against him and also upon the purported termination of his appointment he was neither issued a notice nor was he paid salary in lieu of notice as provided as stipulated in his terms of contract. It is found on record that the defendant leveled allegations of fraudulent activities against the claimant regarding the grant of loan to one submarine Company. They equally alleged that the claimant was complicit on the forged documents presented by the Company for the loan. By merely stating in claimant’s termination letter that his services is nolonger required was to run away from the obvious, i.e. of proving the allegation against the claimant as required by law. Be that as it may, by clause 13.3.3 of the defendants’ staff handbook, id est exhibit IO15, the defendant ought to have given the claimant notice in writing or payment of salary in lieu of notice. I however, observed that the period of notice or salary in lieu was not stated in the clause. I find no other clause in the staff handbook providing for such. The import of which is that the period of notice is left at the discretion of the defendant as well as the salary in lieu to decide. I find this as an affront/imbalance on the status of the defendant vis a vis the claimant in the terms of the contract. Also, clause 13.3.3 is a clear indication of inequality in the terms of the contract. This to say the least is an unfair labour practice at the work place. This Court is not to close its eyes from such sharp practice in the work place. It is therefore, without hesitation that I strike out clause 13.3.3 of the defendant’s staff Handbook for being an unfair and an inequitable clause, it should be amended by specifying a period of notice and salary in lieu of such notice. I so find and hold.
An employer in exercising his right to hire and fire must do so within the contemplation of the conditions of employment. The defendant in this suit have failed to so do. In that they failed to give the claimant any notice of termination or salary in lieu of same. The law is long settled that if no period of notice is prescribed then the common law rule will apply namely, that a reasonable period would be given, usually one month, three months or six months depending on the category of staff. See CCB Nig Ltd v. Okonkwo [2001] 15 NWLR, (PT. 735)114 CA. The Court as the law is certain may resort to the common law position which is to the effect that in considering a period of notice, the Court should take into cognisance the status of the employee in arriving at a reasonable period of notice and it is within the province of the judge to decide what is reasonable notice having regard to the nature of employment, length of service and other circumstances of the case. It is without doubt that claimant held a managerial position in the defendant’s employment, this is evident in exhibit IO 3, claimant’s promotion letter to the position of Full Manager in 2006, and his salary evinces that he held that position uptill the date of the termination of his employment. In Muyiwa Odejayi v. Stabilini Visinoni Ltd, Suit No. NICN/LA/634/2013, an unreported judgment of this Court delivered on 26th May, 2016, a case wherein this Court held that the reasonable period of notice the claimant who was an Acting Chief Executive Director of the defendant’s Company is to be entitled to 6 months’ notice or 6 months’ salary in lieu of notice. The Court of Appeal also has this to say in CGG Nig Ltd v. Augustine & Ors [2010] LPELR- 8592CA; “I think the most important thing to emphasize in this judgment is that in cases of wrongful dismissal, the amount of damages recoverable by a plaintiff must be geared to the period of notice to be given by the employer as stipulated in the contract of employment. If no period of notice was prescribed, then the common law rule will apply, namely that a reasonable period would be given, usually one month or three months, depending on the category of staff being dismissed. This Court again in the case of Oyewumi Oyetayo v. Zenith Bank Plc [2012] 29 NLLR (PT.84) @ P370,Per kanyip J; held that ” where there exists a contract of service, there is an implied term that the contract can only be terminated by reasonable notice; what is reasonable is always dependent on the nature of the contract and the status of the employee in the establishment. Hence, the higher the position held by the servant and the larger the salary, the longer will be the notice required to put his contract to an end” The law is now settled from all the above cited case law authorities that the most reasonable period of notice would be based on the status, the nature of contract and the salary of the employee. A cue from the above cases shows that for the position of the claimant who was a full Manage should be entitled to 3 months’ notice or 3 months’ salary in lieu of such notice. The only obvious conclusion I have to reach in the circumstance of this case which also accords with sound legal reasoning as seen supra is that the termination of the claimant’s appointment by the defendant is wrongful for failing to give the claimant any notice or salary in lieu of notice. I so find and hold.
It is also claimants claim that the refusal to pay him any part of his terminal benefit from the time of the aforementioned termination of appointment until the month of May, 2015 is unwarranted, unjustifiable, uncharitable and that to him amounts to defamation of character. I have earlier held that the termination of the claimant’s employment is wrongful, however, it is obvious by clause 13.3.3 at paragraph(iii) that;
In the event of a termination of your appointment, you are entitled to all your separation benefits if you are eligible. You will however be required to settle all outstanding indebtedness to Sterling bank and also return all the Bank’s property in your possession immediately.”
It is clear from the above highlighted clause of the contract of employment that the claimant upon the termination of his appointment is entitled to separation benefits less any outstanding indebtedness to the defendant. This is in accord with the decision of the Court in Obanye v. Union Bank Plc[2018] LPELR- 44702SC; where the apex Court held that “in ordinary contract of employment where the terms provide for one month’s notice before the termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlement due to him at the time the employment was brought to an end.” [Underlined is mine]. According to the claimant on the 15th of September, 2009 when his employment was terminated, he was neither given any notice nor any terminal benefits until the 29th of April, 2015 when the defendant vide an email exhibit IO13 communicated to him that approval has been obtained for the payment of his gratuity for the period of 5years, which he acknowledged but vide a letter written to the defendant by his counsel he stated that he would accept that as part payment of his terminal benefit and went on to request for his outstanding balance. The withholding of claimant terminal benefit for 6 years in my humble view is unjust and wrongful as the defendant unduly deprived the claimant of the benefits of all the years he rendered services to the defendant. I so hold.
Now, a germane question to ask is, does the wrongful act of the defendant in terminating the claimant’s employment amounts to defamation in which this Court has the jurisdiction to entertain? As stated earlier in this judgment the law is sacrosanct that a party who wants the Court to believe and hold in his favour must give credible evidence in prove of his assertion. See the cases of Peter Ojoh v Owuala Kamalu & ors. [2005] LPELR 2389 SC; Onah v Okenwa & ors [2010] LPELR 4781 CA. The claimant in this case has not proven how the withholding of his terminal benefits by the defendant culminates into defamation of character calculated to injure the reputation of his person and which lowers him in the estimation of right thinking members of the society. Also, it is apt to state that it is evident that the claim of the Claimant is a tortuous one, which is not within the competence of this Court to adjudicate on. In other words this Court is without jurisdiction to entertain causes and matters bordering on defamation of character. See Section 254C of the 1999 Constitution as amended as well as Section 7 of the National Industrial Court Act 2006. I therefore, desist from embarking on an exercise in futility. The Claimant may ventilate his grievance at the appropriate Court being a tortuous act; consequently, this claim is struck out. I so hold.
It is the claimant’s relief 2 that he is entitled to the sum of N25,000,000.00 (Twenty Five Million Naira) to the claimant as compensation for the defamation of his character by the defendant. I have earlier held supra that this Court lacks the requisite jurisdiction to adjudicate on this subject matter. It is in the light of this that I find and hold that this claims fails.
It is also the claimant’s claim that he is entitled to the payment of the outstanding balance of N5,899,921.66 (Five Million, Eight Hundred and Ninety-Nine Thousand, Nine Hundred and Twenty One Naira, Sixty-Six kobo) only of his actual gratuity and terminal benefit which is still being withheld by the Bank. It is the claimant contention that at paragraph 27c that when the defendant decided to pay his terminal benefit it embarked on a wrong basis for the calculation of his terminal benefit by paying him the sum of N5,074,802.00 instead of N10,974,724.84 and thus indebted to him in the sum of N5,899,921.66. The defendant vide paragraph 27 of it statement of defence averred that the claimant’s terminal benefit which was eventually paid in the sum of N5,074,802.88 is the correct amount due to the claimant based on the computation of services to the defendant for 5 years. A cursory look at Exhibit IO15 at Clause 13.2.1 Gratuity Payment.
“As a staff of Sterling Bank you may benefit from the Bank’s non-contributory Gratuity Scheme.
In order to be eligible for gratuity payments, you would have spent a minimum of five years in the Bank’s employment. Your gratuity payment would be computed on the basis of your Total Monthly Emoluments for each completed years of service.
…….”
It is obvious by the above captured provision of the terms of the claimant’s employment that he is entitle to terminal benefit in form of gratuity. Claimant herein is claiming the above stated sum which according to him is withheld by the defendant, this claim is the realm of special damages. By the locus classicus case of Agunwa v. onukwe [1962]1All NLR 537, special damages as in this instance must be strictly proved. In Daniel v. Akperan Orshi College of Agric, Yandev [2018] LPELR-45888CA, the Court of appeal in held amongst others that-
special damages must be claimed specifically and strictly proved and the Court is not entitled to make its own estimate of same. The rule with regard to the award of special damages is that the burden of proof is on the claimant to prove strictly that he did suffer such special damages claimed. What is required is that the claimant should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he indeed is entitled to an award under that head. See Ado v. Commissioner of Works, Benue State (2007) 15 NWLR (Pt. 1058) 429 at 440-441; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (Pt. 6580) 668; & UBA Plc v. Ekanem (2010) 2 NWLR (Pt. 1177) 181 at 196. Thus, where damages are claimed in an action, there must be evidence in proof of such damages, whether special or general, to entitle the claimant to the award being claimed
These authorities show that the claimant in the instant case must prove two things if he has to succeed: one, that he has an entitlement to the sums claimed; and two, how he came about the quantum of the sums of money he is claiming. In terms of the first requirement, claimant tendered exhibit IO15, which constitute his term of employment the salient portion of which has been highlighted supra, he tendered a letter written by his counsel to demand for his unpaid entitlements and annexed to it is a written calculation he is relying on as the basis of his claim. In his testimony under cross-examination he confirmed that the sum of N5, 074,802.00 paid to him by the defendant was a part payment of his gratuity. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. The claimant in prove of this claim equally tendered exhibit IO13, which is an Email sent to him by the defendant dated 29th April, 2015 admitting that the defendant will pay the gratuity of the sum of N896,855.41 as additional year of service to him.
From the foregoing it is clear that the claimant took the sum of N5,074,802.00 (Five Million, Seventy Four Thousand, Eight Hundred and Two Naira)paid to him as his entitlement as the part payment of his terminal benefit. Now is he entitled to the alleged remainder in the sum of -N5,074,802.00).? I answer this in the negative, this is in the light of the evidence before me, which evinces that the claimant has been able to only prove that the outstanding balance is the sum of N896,855.41 admitted by the defendant. He has however, failed woefully to canvass credible evidence in prove of the sum claimed as stated above. It is in consequence that I find that claimant is entitled to be paid the sum of N896,855.41 as his outstanding gratuity from the defendant. I so find and hold.
It is claimant’s claims that he is entitled to the payment of the sum of N5,178,428.37 (Five Million, One Hundred and Seventy Eight Thousand, Four Hundred and Twenty Eight Naira, Thirty-Seven kobo), being accrued interest on the total gratuity due for payment to the claimant from the date of his disengagement from the defendant’s bank on September 15, 2009 to the month of May, 2015 when the bank made part payment of the sum of N5,074,802.00 (Five Million, Seventy Four Thousand, Eight Hundred and Two Naira) only into his Bank Account out of the actual amount of N10,974,724.84 (Ten Million, Nine Hundred and Seventy Four Thousand, Seven Hundred and Twenty Four Naira, Eighty Four kobo), that he is equally entitled to the payment of the sum of N909,717.93 being the further interest accrued on the outstanding balance of N5,899,921.66 of the claimant’s actual gratuity and terminal benefit which is still being withheld by the bank from the month of June, 2015 to the time of filing this suit in December, 2016, calculated at the rate of 7% per annum and also that he is also entitled to the payment of interest at the rate of 7% on the outstanding balance of N5,899,921.66 of his actual gratuity and terminal benefit which is still being withheld by the Bank from the time of filing this suit until the date of final judgment in respect thereof and an interest of 10% on the judgment debt awarded to the claimant in this case until the final liquidation of the said judgment debt. With respect to these claims, the law is as rightly stated in the case of Monier Construction Co. Nig. Ltd v. E. Agbejure Enterprises Ltd [2013] LPELR-21167CA; Eko JCA(as he then was ) Held thus “Pre-judgment interest is either statutory or contractual. The appellant having not proved that the pre-judgment interest he had claimed was either statutory or contractual had failed to justify his entitlement to that head of claim” I find this reasonable to rely on in holding that the claimant in this case has equally failed to substantiate his claim for pre judgment interest in that he has failed to prove that this claim is statutory or part of his contract of employment. Also, this Court by its rules, specifically by Order 47 Rule 7 of the National Industrial Court Rules, 2017 is that at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at the rate not less than 10% per annum to be paid upon any judgment. The import of this is this Court cannot award a prejudgment interest except same has been proven by the claimant as succinctly put in Monier’s case supra. It is in the light of this that I discountenance with Claimant’s claim for prejudgment interests. I so find and hold.
The claimant claims the sum of N5, 000,000.00 as general damages for the financial stress, embarrassment, inconveniences, and the psychological trauma caused the claimant and members of his family for the refusal of the defendant to pay him any part of his terminal benefit until the month of May, 2015 and the withholding of the payment of the outstanding balance in respect thereof up to the time of the judgment of the Court. The law is replete general damages are such that the law presumes to be direct natural or probable consequences to act complained of. Likewise, the position of the law is clear that a party is entitled to general damages if it is established that he has suffered an injury or wrong has been committed against him, and ordinarily, general damages would only be awarded against an adverse party if the liability had been established, See the cases of PHCN &Anor v Atlas Projects ltd [2017] LPELR 43622;Eze v. Union Bank of Nigeria Plc [2015] 61 N.L.L.R (Pt. 212) 135, Durowaiye v. U.B.N[2015] 16 NWLR (Pt. 1481) 172 CA. I have earlier held that the termination of claimant’s employment is wrongful and it is the law of common that the remedy available to an employee whose employment has been wrongly terminated is an action for damages and the normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. See Shell Petroleum Development Company v. Olanrewaju (2008) 18 NWLR pt. 1118 pg. 1 SC, cited with approval in Okungbowa & ORS v. Gov. of Edo State & ORS [2014] LPELR-22135CA. I have held supra that the claimant is entitled to 3 months’ salary in lieu of notice. The defendant by exhibit OB4, stated therein that the claimant basic salary is N103,111.73, this multiply by 3 months will give a total sum of N309,335.19 as claimants 3 months’ salary in lieu of notice as damages. It is clear by exhibit OB4 that claimant was given a month basic salary, so this is to be deducted from his 3 months’ salary in lieu of notice, the balance therefore is N206,223.46 Accordingly, I hold that claimant is entitled to the sum of N206,223.46 as damages.
On the whole, the claimant’s claim succeeds in parts. For the avoidance of doubt, I hereby declare and order as follows-
That the termination of claimant’s employment by the defendant is wrongful.
That the withholding of the claimant’s terminal benefit by the defendant from 15th of September, 2009 till May, 2015 is wrongful.
That claimant’s claim on defamation fails.
That claimant’s claim on the sum of N25,000,000.00 (Twenty Five Million Naira) as compensation for the defamation of his character by the defendant fails.
That the claimant is entitled to the sum of N896,855.41 as the outstanding balance of his terminal benefits(gratuity) withheld by the defendant.
That claimant is entitled to the sum of N206,223.46 as the outstanding balance of his salary in lieu of notice.
Cost is assessed at N100,000.00.
All judgment sums should be paid within the period of 30days, failing which it shall attract an annual interest of 10% of the total judgment sum
Judgment is accordingly entered.
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
