Mr. Isiah Jiringho -VS- First Bank of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: MONDAY 22^ND NOVEMBER 2019 SUIT NO. NICN/LA/539/2016

BETWEEN

ISAIAH JIRINGHO ………… CLAIMANT

AND

FIRST BANK OF NIGERIA LIMITED ……… DEFENDANT

Representation:

Augustine Ikhalea appears for Claimant

Susan Agu(Mrs) and O Uye appear for the Defendant

JUDGMENT

Introduction:

The claimant brought this action vide a General Form of Complaint on the 18^th of August 2016. The complaint was amended on the 11^th of December 2017. The claimant claims against the defendant as follows:

a)A DECLARATION that I am entitled to my terminal benefit to the tune of N15,000,000.00 (Fifteen Million Naira) only.

b)AN ORDER, directing the Defendant to pay the Claimant the said sum of N15,000,000.00 (Fifteen Million Naira)

c)Interest on the said of N15,000,000.00 (Fifteen Million Naira) only at 10% per month beginning from the 1^st day of August, 2015 till the date of final liquidation.

d)General damages in the sum of N5,000,000.00

e)Further order(s) and relief(s) as the court may make in the circumstance.

The Defendant on the 22^nd day of December 2017 filed its Consequential Amended Statement of Defence dated 20^th December 2017. Trial commenced on the 21^st of February 2018. At the trial, the Claimant called two (2) witnesses, Mr. Isaiah Jiringho(CW1) through whom claimant tendered 20 exhibits marked exhibits C1 – C20; and Okon Anwanga Abasi Eyo(CW2). The Defendant called only one (1) witness, Olawumi Shafe and tendered 9 (nine) exhibits marked D1 – D9.

Facts of the Case:

The claimant, formerly known as Mr. Isaiah Oboyo Sule, was employed as a Clerk by the defendant Company on the 30th day of November, 1988. The Claimant’s appointment was confirmed as a permanent staff by a letter dated 7th September, 1989, effective from 1st June, 1989 and was promoted several times, the last of which was Deputy Manager, before his voluntary retirement in July, 2015.

The case of the claimant is that on 19th February, 2015, a memo was circulated by the Human Capital Management and Development Department of the Defendant in respect of a Voluntary Early Retirement Scheme with Incentives. The window for the Voluntary Early Retirement Scheme with Incentives was effective from the 19th of February, 2015 till the 20th of February, 2015 and the Claimant applied to the Group Head, Human Capital Management on the 20th of February, 2015. The applications of all the Claimant’s colleagues who applied for the Voluntary Early Retirement Scheme with Incentives were approved but his application was denied and the notice of denial was not communicated to him until 27th of October, 2016 well over a year after he had retired from the service of the Defendant on 8th July, 2015. The defendant responded that his application was awaiting the conclusion of the investigation being carried out by the police. On 7th July, 2015, in consonance with paragraph 8.12.1(a) of the handbook and complying with due process the claimant applied to voluntarily retire from the service of the defendant. The defendant refused to pay his terminal benefits on the ground of investigating the account of Kent-Reubys Mills Limited for none performance. He was invited by the police on a petition by the defendant over the said Kent-Reubys Mills Ltd but was cleared and the directors of Kent-Reubys Mill Ltd undertook to repay the balance of the facility. The defendant still refused to pay him his terminal benefits.

The defendant however states that upon claimant’s resignation on the 7^th day of July, 2015 he paid one month salary in lieu in accordance with his terms of employment. That after the claimant had resigned and terminated his employment with the defendant; there was no outstanding obligation from the defendant to the him. That, in the course of his employment, the Claimant breached his duty of confidentiality, whereupon he was cautioned by letter of 30^th June 2015. That the early voluntary retirement with incentive is not part of the terms of employment as enshrined in the letter of employment or the Staff handbook but an ad hoc process of the defendants which operated subject to the defendant’s management approval. The defendant states that the claimant’s request for voluntary early retirement made on the 7^th July 2015 is completely alien to his terms of employment, he having not attained the age of 55 years nor met 30 years’ service benchmark. The defendant did not approve the application for voluntary early retirement with incentive written on 20^th February 2015 because the claimant was undergoing disciplinary procedure/internal investigation and because the application was not brought within the window as the window expired 20^th February 2015. The defendant states that it did not consider any of the issues related to the loan facility of Kent-Reubys Mill Limited in its decision; and that the defendant was paid his full gratuity/benefit in accordance with his employment terms.

Submissions of Counsel:

Defendant filed its final written address on the 25^th of January 2019. In it, counsel, on behalf of the defendant, raised the following issues for determination:

Whether the Claimant has proved his case in preponderance of evidence entitling him to judgment.
Whether the Claimant having resigned from his employment, he is further entitled to claim any perceived benefit under early voluntary retirement scheme of the Defendant.

On issue 1, defendant argues that the claimant’s case is denominated on exhibit C4 (letter of 7^th July 2015) and that there is nothing in exhibit C4 that itemized the heads of claim the claimant is relying on as representing the incentives, outside the handbook.

On issue 2, defendant submits that the only answer to the question is that the claimant is not entitled to any benefit under the early voluntary retirement scheme of the defendant; his application for early voluntary retirement having been refused by defendant. The defendant submits that after resigning from his employment, his gratuity was paid and his pension entitlement was remitted to his pension managers; thus, discharging all their responsibilities to the claimant.

Claimant filed his final written address on 25^th February 2019. In it, counsel, on behalf of the claimant, raised the following issues for determination:

Whether all the documents relied on by the defendant ought to be rejected since no proper foundation was laid before they were tendered by the defendant.
Whether from the preponderance of oral and documentary evidence the claimant is entitled to the reliefs sought in his amended statement of facts.

On issue 1, claimant submits that since the defendant failed to lay foundation for the admissibility of exhibits D1-D9, it failed to comply with the mandatory provisions of section 89 of the Evidence Act 2011. That, claimant failed to state whether the original was in the custody of the adverse party, lost, etc. and that in that circumstance, the only option open to the court is to reject those documents. Claimant referred to the case of Chief Sylvanus Udenkwo & Ors v. Sebastine Nwosu (2014) LPELR-24290(CA) .

On issue 2, claimant submits that he has been able to establish from a preponderance of oral, documentary and un-contradicted evidence his entitlement to the reliefs sought in his amended statement of facts in consonance with the antiquated position of law that he who asserts must prove. Claimant submits that his case is hinged on the handbook of the defendant (exhibit C15) which sets out the conditions of service that exist between him and the defendant and that both parties are bound by its stipulations.

Claimant further submits that given the words used in clause 8.12.1 of the defendant’s handbook (exhibit C15), its ordinary everyday interpretation particularly with the use of the word “or at his/her own discretion”, the claimant was given the right to voluntarily retire and still be entitled to all the early retirement benefits stipulated in clause 8.12.1(a).

Claimant argues that defendant did not establish any misconduct against him that can deny him the payment of his entitlements; and that the letter of caution ostensibly issued by the defendant to the claimant for which there is no evidence of receipt only serves to remind an employee that he is stepping out of line and does not deprive him of his terminal benefits.

In response to claimant’s submission on the admission of the defendant’s documents, defendant submits that even if the documents were inadmissible in the form, admission without objection constitute a waiver of unfulfilled condition (if any). They referred to the case of Isakassin v. State (2017) LPELR 42586.

Defendant filed a Reply on Points of Law on 27^th February 2019 wherein he restated its position with respect to the relevance of the documents it tendered.

Decision:

I have considered the processes filed in this matter, the evidence led and the arguments of Counsel. I adopt the following issues for determination:
Whether all the documents relied on by the defendant ought to be rejected since no proper foundation was laid before they were tendered by the defendant.
What is the nature of claimant’s exit from the defendant?
Whether the claimant is entitled to the reliefs sought in suit.
Issue 1 is on the admissibility of the defendant’s documents. At the trial on 5^th November 2018, defence witness while seeking to tender his documents stated that some of the documents were copies. Counsel for claimant, Mr. Augustine Ikhale objected on the ground that no foundation was laid. Mr. Uye for defendant expressed his knowledge that this court can depart from the Evidence Act to do substantial justice. The court admitted the documents as exhibits D1 – D9 and urged counsel to raise and address it in his final written address.
I have considered the objection raised against defendant’s documents. The ground of the objection is that no foundation was laid before they were tendered in consonance with the provisions of section 89 of the Evidence Act 2011. That section states when secondary evidence may be given of a document. The situation in this case is that the defendant tendered a copy without stating why.

This Court is a specialized court set up for special need; the need that employment and labour matters be dispensed expeditiously. Thus, its establishing law provides that at section 12 that the court:

(b shall be bound by the Evidence Act but may depart from it in the interest of justice.

It is in the interest of justice that, unless where issues of substantial justice are involved, a court shall not be shackled by technicalities, and prevented from considering the issues fully. I consider and find the objection of claimant to be absolutely founded on technicalities. The claimant did not challenge the authenticity of any of the documents, or that they were not pleaded or relevant. I therefore find this objection to be founded on mere technicalities. The Appellate Courts have consistently advised against being guided by such technicalities. See Agunbiade v. Oke (2015) All FWLR (Pt. 811)1330 CA. In Oloruntoba-Oju v. Abdul-Raheem (2009) LPELR-2596 (SC) the Supreme Court, held that:

I must repeat the clarion call that Courts nowadays denounce judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this all forms of technicalities which will act as a detriment to the determination of the substantial issues between litigants must be shunned. While recognising that rules of court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined on merit.” Per O.O ADEKEYE, JSC, 33-34 F-B

In Adebesin v. State 2014) LPELR-22694(SC), the Supreme Court said that “…this is a minor technical point that has no effect on the judgment of the Court below. At this state in our jurisprudence, technicality must ex necessitate yield place to reality”. See Broad Bank Nig. Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) All FWLR (Pt.251) 235 at 249-51 SC and Olam Nigeria Plc. v. Onaghinor (2011) LPELR-8956(CA) and Bello v. A.G. Oyo State (1986) 5 NWLR (PT.45) 528. The Court of Appeal in Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276 @ 297, citing Famfa Oil Ltd. v. AGF (2003) 18 NWLR (Pt. 852)453, stated that Courts of Law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities occasioning no miscarriage of justice. Thus where, as in this case, the documents are not challenged on any other substantial ground, the court should ignore mere technicalities in order to do substantial justice. As bemoaned by Hon. Justice Nnamani, JSC (of blessed memory) in Erisi vs. Idika [1987] 4 NWLR (Pt. 66) 503, relying on Nofiu Surakatu v. Nigeria Housing Society Ltd anor [1981] 4 SC 26, “The courts are courts of law but may the day never come when they cease to be courts of justice”. As stated by PETER-ODILI, JSC in Adeyemi v. State (2014) LPELR-23062 (SC); it is therefore better to have a case heard and determined on merits than to leave the Court with a shield of “victory” obtained on mere technicalities.” See also Olatawura JSC in NIPOL Ltd vs. Bioku Invest & Pro Co Ltd (1992) 3 NWLR (Pt.232) 727 at 753, Eromosele v. FRN (2018) LPELR-43851 (SC); Osareren v. FRN (2018) LPELR-43839 (SC), and Akinbade & Anor vs. Babatunde & ORS 2017) LPELR-43463 (SC).

Additionally, the Rules of this Court Order 1 Rule 9(2) empowers this court to depart from the rules of evidence in the interest of justice as provided in Section 12(2)(b) of the National Industrial Court Act, 2006. Rules 9(3) specifically provides that this court may disregard any technical irregularity which is likely to result in a miscarriage of justice. Based on all the above stated position of the courts, the Law and Rules of this court, I depart from the rules of evidence raised by claimant, for being merely founded on technicality, and which if adhered to is likely to result in a miscarriage of justice. I therefore sustain the admission of the said exhibits D1 to D9. Further, an examination of the said documents show that they are substantially the documents also relied on by the claimant; giving credence to the finding that the objection is clearly for technical purposes.

Issue 2 requires a determination of the nature of claimant’s exit from the defendant. It is claimant’s case that defendant refused to pay him his terminal benefit upon his voluntary retirement. Evidence before this court shows that claimant by exhibit C4 dated 7^th July 2015, applied for voluntary early retirement. It is also in evidence that prior to the voluntary retirement of 7^th July 2015, claimant had on 20^th February 2015 applied for voluntary early retirement with incentive pursuant to a window opened by the defendant for that purpose via exhibit D3. This early voluntary retirement with incentive is not part of the terms of employment as enshrined in the letter of employment nor the Staff handbook but an ad hoc process of the defendants which operated subject to the defendant’s management approval. There is no evidence to show that defendant approved that application for voluntary early retirement with incentive; which suggested that it was denied, hence claimant’s continued stay in defendant’s employment and subsequently, the application of 7^th July 2015. In responding to the application of 7^th July 2015, defendant informed claimant that his application for voluntary early retirement with incentive was declined by management. From the evidence available before this court, this response, in claimant’s view, referred to the retirement pursuant to the window for early retirement with incentive, and not under paragraph 8.12.1 of defendant’s employees’ handbook.

The question to resolve is; under which retirement system did claimant exit the defendant, and what is the entitlement under each. The claimant himself created a problem which makes it difficult to determine what exit procedure he adopted in leaving the employment of defendant. This problem and ‘confusion’ emanates from exhibit C4. It states as follows:

APPLICATION FOR VOLUNTARY EARLY RETIREMENT

“Having had a very successful banking career with First Bank of Nigeria Ltd since 1^st December 1998, I have decided to voluntarily retire with effect from 8^th July 2015. This is to re-enact my earlier application for same dated 20^th February 2015 (copy attached).”

I am currently enjoying the following facilities:

Housing loan outstanding balance N619,378.91
Naira credit card loan outstanding balance N616,412.68
Credit card (master card) loan outstanding balance USD2,353.81
PLAS outstanding N1,103,600.84

Consequently, I request that my net retirement benefits be credited into my staff salary account number 2002724221 in due course in accordance with section 8.12.1(a) of Employee Handbook (March 2007)

“Below are bank properties in my possession now returned to the Bank

Staff identity card No. 110526

Completed Exit interview form

Cheque book with 25 unutilized leaves inclusive of cheque for one month basic salary of N127,186.00 in lieu of notice.

Kindly acknowledge receipt of my letter and attachments on the duplicate copy.

Yours faithfully,

Isaiah O. S. Jiringho.

The above letter of 7^th July 2015 purports to re-enact claimant’s letter dated 20^th February 2015 which was made in response to defendant’s window for voluntary early retirement with incentive. The said hand written letter of 20^th February 2015 reads:

C/O First Bank of Nig Ltd

Commercial Banking Unit

Broad Street Branch

20^th February, 2015.

The HCMD,

Head Office

Dear Sir/Madam,

RE: VOLUNTARY EARLY RETIREMENT WITH INCENTIVE

I refer to your captioned memo dated 19^th February, 2015 and hereby apply to take advantage of the Voluntary Early Retirement Incentive.

I would be grateful if my application is granted.

Yours Faithfully,

Isaiah O. Jiringho

(S/NO. 008253)

This application was obviously not accepted hence claimant’s continued stay in defendant; and perhaps, subsequent re-enactment of the said application. But, the memo dated 19^th February 2015 was clear in its terms and duration. It provided that(exhibit D3):

This is to inform all staff that Management has magnanimously approved the opening of the window to accept application from eligible staff members who are interested in benefitting from the voluntary early retirement with incentive scheme.

Please note that this window is open effective today, February 19, 2015 and will close by 5pm tomorrow February 20, 2015.

This window was subsequently extended till February 27^th. 2015. After this date, it was no longer open to any staff to apply for voluntary early retirement pursuant to it. Thus, claimant’s purported re-enactment of his application of 20^th February 2015 would not be possible. Any demand for entitlement as would accrue under the voluntary early retirement with incentive, would fail.

In the same exhibit C4, claimant refers to his entitlement under the defendant’s handbook section 8.12.1(a). The concern created by this is whether the entitlement sought is as accruing to claimant under the re-enacted letter of 20^th February, 2015, which I have already found to be non-existent, or under a different retirement regime. Section 8.12.1(a) of the defendant’s handbook (exhibit C15) provides that:

The compulsory retirement age of employer is sixty (60) years or 35 years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or have served up to 30 years or at his/her own discretion or at the discretion of the management.

The defendant argues that the claimant’s request for voluntary early retirement made on the 7^th July 2015 is completely alien to his terms of employment, he having not attained the age of 55 years nor met 30 years’ service benchmark; and that he was not qualified for the scheme. Claimant, on his own part argues that the above stated paragraph of the defendant’s handbook allowed him to voluntarily retire by the use of the phrase “or at his/her own discretion” and still be entitled to all the benefits of early retirement. Claimant argued as follows:

… a literal reading of the clause having regards to the use of the word “or” gives three alternatives, and the claimant in this case adopted one of those alternatives in his early retirement to wit, an employee can however go on voluntary early retirement after attaining the age of 55 years or has served up to 30 years of service or at his/her own discretion or at the discretion of management”. It is also instructive that contrary to the argument of the defendant the first sentence of Clause 8.12.1 deals with the compulsory retirement age for employees, when it provided as follows, “The compulsory retirement age for every employee…” not voluntary early retirement which the second sentence of the clause provides for, to wit, “An employee can however go on voluntary early retirement….” The claimant in consonance with the handbook adopted one of the alternatives stipulated for voluntary early retirement, the defendant cannot now resile from its responsibility to pay the claimant his early retirement benefits by claiming that the claimant resigned and/or that his retirement was not in consonance with the stipulations of the handbook, exhibit C15. We urge the court to so hold.

I have considered claimant’s submissions above. I agree with the interpretation of clause 8.12.1 given above on the mandatoriness of retirement at the age 60 or 35 years’ service, whichever comes first; and the voluntariness of retirement at the age of 55 or 30 years’ service. However, I do not see how claimant’s argument establishes that it applies to him. Claimant argued that clause 8.12.1 gives three alternatives, and that he has adopted one of those alternatives in his early retirement to wit, “an employee can however go on voluntary early retirement after attaining the age of 55 years or has served up to 30 years of service or at his/her own discretion or at the discretion of management”.

The evidence before this court (exhibit D1) shows that claimant was born in December 1962. By July 2015, he was 53years as against the 55 years stipulated by the handbook for voluntary retirement. Exhibit C1 shows claimant was employed in November 1988. By July 2015, he was 27years in the employment of the defendant, as against the 30 years requirement. I do not see how claimant came within the very alternative he purports to have chosen from clause 8.12.1 of defendant’s handbook.

I do not see that the phrase ‘at his/her own discretion’ means discretion to retire at an earlier age or period outside those stipulated above. If that was the intention, it would have been stated; and then, there would have been no need to make the earlier provisions on age and time for mandatory or voluntary retirement. What I understand is that it gives the employee the discretion to retire at the mandatory age/period or at the voluntary age/period. To suggest that the phrase ‘at his/her own discretion’ implies that one could retire at any age outside that already stipulated, and still enjoy the benefits of the two classified ones, would lead to an absurd situation. The implication is that any retirement outside the two classifications, must be under a different consideration.

By this, I find that claimant was not qualified under either of the provisions in clause 8.12.1 and consequently not qualified for the early retirement benefits.

Further on the confusion created by claimant in exhibit C4, he gave one month salary in lieu of notice and immediate handover information. This is not a requirement under clause 8.12.1 for retirement; but a requirement under clause 8.10(A) for termination/resignation. Little wonder defendant began to argue that it was a resignation, and not a retirement.

In the face of all these inconsistencies, I find that at best, claimant’s exit from the defendant was a resignation of his appointment.

Issue 3 is whether claimant is entitled to the reliefs he seeks in this suit. The entire relief sought in this suit is founded on defendant’s refusal to pay claimant terminal benefits upon his retirement. Having found that claimant was not entitled to the retirement benefits under clause 8.12.1, the entire suit is bound to fail. I therefore find and hold that claimant has not established his entitlement to the reliefs sought. This action fails and is hereby dismissed.

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

…………………………………….

Hon. Justice Elizabeth A. Oji PhD