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UGOCHUKWU NWANKWO OBUMNEME VS THE ACCESS BANK

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

Suit No. NICN/EN/13/2016

BEFORE HIS LORDSHIP, HON. JUSTICE I. J. ESSIEN Ph.D

DATE: 26th February 2019

 

BETWEEN

UGOCHUKWU NWANKWO OBUMNEME———————————— Claimant

AND

THE ACCESS BANK PLC ———————————————————-Defendant

REPRESENTATION :

J.H.C Okolo SAN for the claimant

Paul Usoro SAN with M. LadiEsq. H. OkoroEsq.O .AjibaraEsq., A. Adepoju Esq for the defendant.

JUDGMENT

The claimant by a complaint dated 10/3/2016 and filed on the 16/3/2017sought the following relieves from this court;

  1. A DECLARATION that the claimant is entitled to the immediate release and payment of the sum of #4,500,000.00 (four million five hundred thousand naira) being the balance of the claimant’s full severance allowance found due to him as stated in his said termination letter.
  2. AN ORDER compelling the defendant to release forthwith and pay up in full the balance of #4,500,000.00 (four million five hundred thousand naira) being the claimant’s severance monetary benefit in accordance with the binding conditions of service between them which was wrongly withheld by the defendant.
  3. AN ORDER setting aside the defendant’s letter dated 2ndJanuary, 2012 purporting to TERMINATE the claimant appointment when in fact the said claimant was merely relieved of his appointment in accordance with the wishes of the defendant’s Bank and with no taint of any misconduct whatsoever.
  4. Interest calculated at the relevant Central Bank of Nigeria applicable interest rate of14% per annum from the 1st February, 2012 until judgment.
  5. An order for Payment of interest at the rate of 10% per annum from the date of Judgment until the final liquidation ofall sums found due in favour of the Claimant.

In response to the claims of the claimant in this suit the defendant filed a statement of defence on the 9/8/2016, along with the witness deposition of the defendant sole witness. On the 11/5/2017, the claimant filed a reply to the statement of defence along with a further witness deposition of the claimant in this action. On the 11/4/2018 the claimant with leave of this court filed and amended statement of facts and a further additional witness statement on oath. The defendant in response to the claimant amendment filed a consequential amended statement of defence on the 4/5/2018. Along with a witness deposition of their sole witness. Again on the 28/5/2018, the claimant filed a reply along with a witness deposition to the defendant consequential amendment.

 

Hearing in the suit commenced on the 5/2/2018. The claimant testified as CW1 and the sole witness. He tendered the following exhibits in evidence;

  1. Exhibit CW1-A, letter of appointment.
  2. Exhibit CW1-B 1-4, letter of promotion and commendation dated 28/9/17.
  3. Exhibit CW1-C, letter of termination of appointment
  4. Exhibit CW1-D, staff hand book
  5. Exhibit CW1-E, Access Bank PLC staff handbook 2008
  6. Exhibit CW1-F1-4, letter titled ‘Re; Intercontinental Bank PLC Legacy Fund’
  7. Exhibit CW1-G, letter of recall from suspension.
  8. Exhibit CW1-H, statement of the claimant salary account.
  9. Exhibit CW1-I, Claimant solicitors letter dated 24/4/2012.
  10. Exhibit CW1-J, Inter-continental bank staff gratuity scheme sent on 6/10/11 to all staff.

During cross examination the following exhibits were also tendered through the claimant in this action;

  1. Exhibit CW1-K, letter titled ‘caution’ dated 26/6/2007
  2. Exhibit CW1-L, letter titled ‘suspension’ dated 27/4/2007
  3. Exhibit CW1-M, letter titled ‘suspension’ dated 29/7/2009
  4. Exhibit CW1-N, letter titled ‘suspension’ dated 9/7/2009

The claimant was recalled for further examination and cross examination  on the 4/6/2018 and thereafter the claimant closed his case for the defence to open their defence.

The defendant called one OlakunleOlashore as their sole witness who testified as DW1. He tendered the following Exhibits in evidence;

  1. Exhibit D1, letter of appointment dated 19/8/2004
  2. Exhibit D2, letter of termination of appointment dated 27/1/2012
  3. Exhibit D3, letter of suspension dated 27/4/2007
  4. Exhibit D4, letter of caution dated 26/6/2007
  5. Exhibit D5, letter of suspension dated 9/7/2009
  6. Exhibit D6, letter of suspension dated 9/7/2007
  7. Exhibit D7, Inter-continental bank staff handbook
  8. Exhibit D8, Access bank staff handbook 2008
  9. Exhibit D9, claimant Access bank staff salary account statement.

The defence witness was crossed examined and the defence close their case on the 4/6/2018. The court ordered the counsels for the parties to file their final written addresses.

 

BRIEF STATEMENT OF THE FACTS.

The Claimant was at all material time a staff at Enugu of the Inter-continental Bank PLC which was acquired by Access Bank Nigeria PLC. Prior to the restructuring arrangement, the claimant  had put in 7 (seven) years’ service or more in the defendants Bank.(i.e. Intercontinental bank). The claimant allege that he was entitled to the sum of N 4, 500,000 under the Inter-continental bank gratuity scheme fixed and managed by Crusader Sterling Limited, which was due and payable as at 2012. The claimant allege that the gratuity package is different from and does not operate as an alternative to  any withdrawal/disengagement or severance package he may be entitled to when leaving the services of Access Bank PLC. The Claimant’s fund administrators Crusader Sterling Limited on the 3rd of February 2012 remitted into the claimant’s Access Bank Account the sum of #4,718700.00 being the gratuity held in trust for him including the accrued interest. Upon the claimant employment being terminated by the defendant, the defendant paid to the claimant the sum of N1,185,000.00 leaving the sum of #4,500,000.00 still outstanding hence this suit. The claimant seeks the payment of the full amount of severance package as stated in the letter of termination less the amount earlier paid. The defendant position is that the claimant was entitled to either the gratuity or severance package which ever was higher. That after the payment to the claimant of the sum of #4,718700.00 by Crusader Sterling Limited on the 3rd of February, 2012, the claimant was only entitled to the balance of N1,185,000.00 being the balance of the severance package. This in a nutshell is the facts of this case.

 

DECISION OF THE COURT

From the facts and circumstances of this case it is clear that this court is called upon to determine whether the claimant is entitled to the balance of the severance package as stated in the letter of termination  after being paid the gratuity by Crusader Sterling Limited on the 3rd of February 2012.Also whether the gratuity can be said to be a substitute to the severance package. Also, this court is to determine whether the letter of termination carries any negative connotation for which it can be set aside by this court.   This the court will resolve by addressing the issues in the claims of the claimant in this suit.

 

Claim No 1 and 2.

In these reliefs the claimant is seeking a declaration that he is entitled to the sum of N 4,500,000 and also an order compelling the defendant to pay the above sum as the balance of his severance benefit wrongfully withheld by the defendant.

The claimant testified that he was employed vide exhibit CW1A (which is the same with exhibit D1) by Intercontinental Bank Plc, which was later acquired of merged with the defendant on record on the 19/8/2004.  That he served intercontinental Bank in several locations at various times in the capacity of, Relationship officer retail banking, Relationship manager, retail banking

, branch manager, and team member public sector. He was promoted vide exhibit CW1-b1 and CW1 b2. He also received letters of commendation vide exhibit CW1-b3 and CW1-b4. He testified that prior to the restructuring he had put in 7 years of service with the defendant. That he was never a member of any union while in the employ of the defendant. He testified that the gratuity scheme of Intercontinental bank acquired by the defendant was implemented from 1st November 2005 with a qualifying period of 10 years which was latter reviewed in 2010 to a qualifying period graduated from 5 years of completed service. This he said was implemented from 6/10/2011. He tendered exhibit CW1-J an internal memo from the defunct Inter-continental bank addressed to all staff dated 6/10/2011 explaining the operation and qualification for the gratuity. The claimant testified that because of his long service with inter-continental bank he was given a gratuity package with inter-continental bank which was fixed with Crusader Sterling Limited and that at the time of the termination of his appointment his gratuity package with the accrued interest  wasN 4,718,700.00. This sum he said was credited by Crusader Sterling Limited into his account on the 3/12/2012. He tendered Exhibits CW1-F1. CW1-F2, CW1-F3 and CW1-F4 which showed the above sum standing to the credit of the claimant in the statement of account of the gratuity fund with Crusader Sterling Pension Limited.

The claimant also testified that he was not a member of any union while in the employment of the defendant.  The defendant admits that the claimant was a staff of Inter-continental bank as at the time of acquisition of the bank by the defendant and that made the claimant an automatic member of a trade union regulating staff in the banking industry until his appointment was terminated vide exhibit D2.

 

The position of the defendant as stated by DW1 is that gratuity and severance package are different packages that may be available to an employee, upon the determination of their appointment. That by the Defendant’s Policy, retiring employees are only entitled to their Gratuity sums as of right but the defendant only introduced severance packages on a stand-alone basis as a way of compensating employees who were leaving the services of the defendant sequel to the merger. He testified further that severance packages are therefore not howsoever available as of right to any employee, does not inure to the employee in any manner or form as an entitlemen, but is based entirely on the defendant’s discretion.  He testified further that neither the IBPLC’s policy manual nor the defendant Staff Policy Manual make any provision howsoever or at all for the payment of Severance Package or Disengagement or Withdrawal Entitlement to the claimant, either as of right or at all. He tendered the exhibit D7 and D8 to establish this fact. It was the testimony of DW1 that having resolved to pay the claimant severance package or gratuity whichever is higher, the defendant directed the release of N4,500,000 standingto the credit of the claimant in the gratuity fund. That the defendant also credited the claimant account with N1,185,000.00 to make up the balance of the severance package as stated in exhibit D2.

 

I have carefully reviewed the evidence of the witnesses who testified in this matter, as well as the documentary evidence. I must point out that all the evidence adduced regarding the suspension caution and other disciplinary measures made against the claimant in this suit are of no help in resolving the issues under consideration. To this end exhibits CW1-k, CW1-l, CW1-m. CW1-n, CW1-G and also exhibit D3, exhibit D4, exhibit D5, and exhibit D6which have no direct bearing to the issue of gratuity and severance package under consideration would not be considered in this judgment.

 

The claimant position is that he had put in 7 years in the employment of Inter-continental bank before it was acquired by the defendant and that he only worked for 2 years with the defendant before his appointment was terminated. By reason of this fact he was already qualified for gratuity before the acquisition. I have carefully considered exhibit CW1-j. which I will reproduce part of the content here. It reads;

You will recall that a new Gratuity Scheme commenced in the new Intercontinental Bank PLC with effect from 1st November 2005 after the merger of the then four (4) Legacy Banks with qualifying period of 10 years.

The policy was subsequently reviewed last year with a qualifying period graduated from 5 years of completed service with effect from 1st November 2005. With the current development in our Bank, the Board of Directors approved the termination of the Scheme with effect from 30th September 2011. Consequently, any staff who joined the employment of the Bank after 30TH September 2006 did not qualify for gratuity. 

 

The Board also approved that the gratuity entitlements of qualified staff be moved to Fund Managers for the management of the funds. In addition, a five-man Trustees Board was appointed amongst staff with all powers of Trustees as may be contained in the Trusteeship Law of the Federal Republic of Nigeria so as to ensure a transparent administration of the fund.

In this vein, the gratuity fund has been moved to the approved Fund Managers who were selected after a rigorous screening by the Trustees in conjunction with Human Resources.

The content of this memo addressed to all staff of Inter-continental bank took effect from the 6/10/2011, long before the acquisition of Intercontinental bank by the defendant. Also exhibit CW1-f1 also confirmed that the claimant gratuity fund was received from National Pension Commission and credited to his gratuity account with Crusader Sterling Pension Limited. From the state of this evidence it does appear that by the time inter-continental Bank was acquired by the defendant the claimant had already been qualified and had earned his gratuity which was managed by Inter-continental bank.

DW1 under cross examination on the 4/6/2018 admitted that the N 4,500.00 which the claimant is claiming is what the claimant had earned in intercontinental bank. He also admitted that it was by reason of the merger that the sum of 4.500,000 was transferred to the defendant. He admitted that the said amount belongs to the claimant and no one has a right to it except the claimant. He admitted that the money shown on Inter Continental bank Statement of Account exhibit CW 1 – h, represents what the claimant had already earned in Inter Continental Bank. These admissions clearly establish the claimant’s claim that he has already earned the gratuity sum in accordance with paragraph 1.7 of exhibit D7 (the Inter-continental Bank handbook)

 

 

DW1 in his evidence in chief in paragraph 17 of his witness deposition admitted that severance packages and gratuity are different packages that may be available to an employee upon the determination of his appointment. This piece of evidence is a clear admission of the fact that apart from the gratuity the claimant was also entitled to severance package as it appears he was terminated as a consequence of the acquisition thereby scuttling his ambition to work for the defendant up to retirement from the defendant. The defendant witness admitted this much when in paragraph 15 of his witness deposition he stated ;

Further to paragraph 10 hereof, I know for a fact that the Claimant’s appointment was terminated vide the Defendant’s letter dated 27 January 2012 since his services were no longer required by the Defendant sequel to the merger between IBPLC and the Defendant. 

 

This court is unable to believe the testimony of the DW1 in paragraph 17 when he stated;

 

Further to paragraph 16 hereof and by the Defendant’s Policy, retiring employees are only entitled to their Gratuity sums as of right but the defendant only introduced Severance packages on a stand-alone basis as a way of compensating employees who were leaving the services of the Defendant sequel to the merger.

If this was the official policy of the defendant, the defendant ought to have adduced further evidence either by way of an internal memo or the content of the defendant handbook exhibit D8 to establish this assertion. The law is he who asserts the affirmative of an issue must prove see S. 131(1) of the Evidence Act 2011.

 

This court position is anchored on the fact that there is no provision in the defendant policy handbook 2008, tendered as exhibit D8 to justify that a staff who had earned gratuity in intercontinental bank before the acquisition by the defendant is not entitled to severance package upon the termination of his appointment as a result of the merger/acquisition of his former establishment by the defendant. The reason given by the defendant for the termination of the claimant employment with the defendant is not without some consequences.  This is so because this has prevented the claimant from continuing in the employment up to retirement and therefore be entitled to his full gratuity and other retirement benefits. Such policy to my mind even if it exist cannot be brought to the attention of a staff on the date of his exit from the defendant. In any case the policy talked about by DW1 in thesaid  paragraph17 of his witness deposition quoted above talks about ‘retirement’. This was not a case of retirement, but a case of termination by reason of merger/acquisition. This state of fact throws a serious doubt on the case of the defendant and renders it unbelievable.

 

The defendant testified in paragraph 17 of his witness deposition that the introduction of the severance packages on a standalone basis was a way of compensating employees who were leaving the services of the defendant sequel to the merger. They appropriately informed the claimant of his severance package in exhibit CW1-C which is the same as exhibit D2. The defendant witness DW1 stated that having resolved to pay the severance package they instructed that the sum of N4,500,000 standing to the credit of the claimant with the fund managers be paid to the claimant. I find this piece of evidence rather absurd and cannot be believed. First The sum standing to the credit of the claimant was N 4,718,700.00 and not N4,500,00.00 This is evidenced in Exhibit CW1-f4. Also, this sum was credited to the account of the claimant in exhibit CW1-h which is the same with exhibit D9, on the 3/2/2012. The claimant was terminated of his appointment on the 27/1/2012. This was clearly before the claimant was credited with the gratuity fund.  If indeed it was the defendant that directed the payment of the N 4,500,000 (which was a wrong figure) into the claimant’s account,why did the defendant not inform the claimant in the letter of termination that the N 4,500,000 would constitute part of the severance package and would be deducted from the figure stated in exhibit CW1-C? (the letter of termination). Also, no such money to the tune of N4.500,000 was ever paid into the account of the claimant. Interestingly exhibit CW1-C has gratuity of N4.500.000.00k as one of the items to be paid to the claimant in addition to severance package of N 5,685,000.00k. With this state of evidence this court is unable to believe the defendant that the claimant was only entitled to severance package and not the gratuity fund already earned by the claimant while working for Inter-continental Bankbefore the merger/acquisition.

 

The defendant also contends that their decision to pay only severance package or gratuity was the outcome of a negotiation with the Association of Senior Staff of Banks Insurance and Financial Institutions (ASSBIFI) before the downsizing. The claimant contends in his evidence in chief that he was never a member of any trade union, while a staff of a bank can opt out of membership of an umbrella union of workers in the banking industry. Such renunciation of membership must be evidenced in writing. There is no such evidence adduced before this court to establish that fact. I believe and strongly so that the claimant was a member of ASSBIFI because the claimant offered no evidence of his repudiation of membership of the union throughout the period of his employment with Inter-continental bank or the defendant. I also find the allegation of the defendant that the decision to pay gratuity or severance was negotiated by the defendant with the Association of Senior Staff of Banks Insurance and Financial Institutions(ASSBIFI) as unproved. The Law is settled and it is that he who asserts the affirmative of an issue must proof same. See section 131(1) of the Evidence Act. The defendant failed to discharge the evidential burden placed on him to show how and in what form the agreement to pay severance or gratuity was arrived at. No memorandum or agreement was placed before this court to establish this fact. The mere fact that the claimant during cross examination admitted that there was no clause in the defendant hand book to establish the right to severance cannot shift the burden placed on the defendant to establish the existence of that agreement to the satisfaction of the court as required by law. Moreso, that the claimant admitted he only became aware of the severance package or gratuity in the letter of termination exhibit D2. It is a misconception for the defendant to argue in their written address that because of the clause ‘severance package or gratuity’ as contained in exhibit D2, it had become an agreement which no oral evidence can controvert. It is this clause which the claimant is contesting that is the foundation upon which tis suit is predicated. Failure by the defendant to lead evidence to establish the foundation of that clause renders that issue unproved and I so hold.

On the strength of the above adumbrations this court hereby holds that claims No1 and 2 in the claims of the claimant in this suit hereby succeeds. Accordingly it is hereby ordered as follow:

  • That the claimant is entitled to the immediate release and payment of the sum of N 4,500,000.00 (four million five hundred thousand naira) being the balance of the claimant’s full severance allowance found due to him as stated in his said termination letter.
  • The defendant shall release forthwith and pay up in full the balance of N 4,500.000 (four million five hundred thousand naira) being claimant’s severance monetary benefit in accordance with the binding conditions of service between them which was wrongly withheld by the defendant.

 

ON CLAIM NO 3

In this claim the claimant seeks an order setting aside the letter of termination, because he was merely relieved of his appointment in accordance with the wishes of the defendant without any taint of misconduct. By this relief it appears that the claimant is apprehensive of the use of the word ‘termination’. The claimant testified that he caused his solicitors to write to the defendant demanding the withdrawal of the offensive termination letter. He tendered the solicitors letter Exhibit CW1-i, I have carefully examined the said exhibit I have also examined the letter of termination Exhibit CW1-c which is the same as exhibit D2. In The letter of terminationthe defendant stated the claimant account would be credited with three months salary in lieu of notice. Accordingly, this amount was credited to the claimant account exhibit D9 on the 24/2/2013. It does appear that the defendant has complied with the procedure for termination of the contract between the claimant and the defendant. The law is that an employer is at liberty to terminate the employment of an employee under a master servant contract of service by giving the required notice as agreed under the contract and where no notice is provided in the contract what the law recognises as a reasonable notice under the circumstances. Where however he chooses not to give notice he must pay salary in lieu of notice. See Kasumotu V. Wemabod Estate Limited {1976} 9-10 SC 254. This in the opinion of this court the defendant has discharge. It is a misconception to think that when the word ‘termination’ is used in a letter that brings an employment contract to an end, it carries a negative connotation, infamy or blemish on the character of the employee. It is trite that termination of employment by payment of salary in lieu of notice is only one of the ways in which a contract of employment can be brought to an end. It is not the same thing as dismissal which carries a negative effect and which presupposes a misconduct leading to dismissal. In Lyade V. Panalpina World Transport Nig. Ltd. [1996] LPELR -1768 SC the Supreme Court stated that ‘ the giving of the agreed specified period of notice or paying salary in lieu of notice therefore prevents the termination from being wrongful and actionable’. See also Ajayi V. Taxaco Nig. Ltd. [1987]3 NWLR (pt. 62) 577. Obot V. Central Bank of Nigeria (1993) 8NWLR 9pt 310) 140.

If the termination of the appointment of the claimant by the defendant cannot be adjudged to be unlawful this court cannot lend its hand to set aside the letter of termination of appointment of the claimant as contained in Exhibit D2. The order sough for cannot be granted by this court. The claim fails and is accordingly dismissed.

 

ON CLAIM NO 4

The claimant here claims ‘interest calculated at the relevant Central Bank of Nigeria applicable interest rates of 14% per annum from 1st February, 2012 until judgment’. A look at this prayer reveals that the claimant has not told the court on which sum of money he is claiming the interest. This court cannot  speculate on the sum upon which the claimant is seeking the interest. This not withstanding the law is that a party who claims interest must specifically plead his entitlement to the interest and strictly lead evidence to establish such entitlement.In the case of S.A.E.P. & U.VS. UBA PLC [2010] 17 NWLR (pt1221) The Supreme Court stated the position of the law in the following words.

The court from time immemorial are reluctant to award interest generally thereby giving rise to the rule of law that interest must not only be pleaded but also strictly proved. Thus, where interest is being claimed as a matter of right the fact of the entitlement must be pleaded by the claimant followed by evidence to establish same. It is only when the court is satisfied after reviewing the pleading and evidence that it may award same. The basis of the claim for interest must be made manifest. It is not enough to merely say that the plaintiff is claiming interest.

 

See Chief Anthony Edosa V. First Bank of Nig. PLC [2011] LPELR-8785 CA.See also UBA V. SEPOK NIG. LTD. [1998]12 NWLR (pt. 578) at 439.

 

In this case apart from merely stating the claim of interest as one of the reliefs, the claimant failed to plead the entitlement to the interest and also failed to lead evidence in prove of his entitlement of the interest as required by law. This court cannot make any award of interest in favour of the claimant. This claim therefore fails and is accordingly dismissed.

 

On the whole,the claims of the claimant succeed in part. The terms of this judgment shall be complied within 30 days from the date of this judgment. Failure to satisfy the monetary award made by this court within the afore mentioned period, the sum shall attract post judgment interest at the rate of 10% (percent)

 

Judgment is hereby entered.

 

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