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ADEKOLA LAWRENCE ADEWOLE & 2 ORS -VS- FIRST CITY MONUMENT

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

HOLDEN AT OWERRI

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I. S.GALADIMA

 

Dated: 20th  May 2019                            

SUIT NO: NICN/PHC/102/2013

 

BETWEEN:

ADEKOLA LAWRENCE ADEWOLE

OLUWASANMI OLADIPUPO OMONIYI

ABITE DARLINGTON

CLAIMANTS 

AND

FIRST CITY MONUMENT BANK

DEFENDANT                                                                

REPRESENTATION:

– F. O. Enajedu for the Claimant

-Effiom Ayi for the Defendant

JUDGMENT:

 

According to these claimants, they were individually and separately employed by the defendant bank – The 1st claimant was employed as an assistant banking officer, the 2nd claimant as an executive trainee, and the 3rd claimant as Head of Operations. On 21/4/2009, they, in company of armed police officers, escorted a bullion van conveying cash of N280 million to another location. They were unfortunately allegedly ambushed and attacked by virulent armed robbers. Having survived the ordeal, the claimants upon reporting back from the unsuccessful duty, were instead interrogated by the police, detained, arraigned before a competent Court of law, and remanded in prison custody before being released after respectively perfecting their bail conditions. Subsequently, the 1st claimant on 10/5/2010 purportedly received a text message informing him that his termination benefits have been paid to him. The 2nd and 3rd claimants were however, informed by letters that their services were no longer required on 31/12/2009.  Thereafter, the defendant bank subsequently sent separate letters of termination of employment to the claimants all dated 1/6/2010.

Consequently, this suit was initially commenced in the Rivers State High Court, and was transferred to this court on July 2, 2013. By a further amended complaint filed on 2/11/2015, these Claimants claimed against the Defendant bank as follows:

  1. A declaration that the termination of the 2nd and 3rd  claimants’ employment by the defendant was unlawful, and of no effect as being against the principles of law and natural justice.
  2. A declaration that the 1st claimant is a staff of the defendant company, his employment having not been terminated.
  3. An order directing the defendant company to pay the 1st claimant the sum of N24,000,000 being his salary and allowances from the 1st day of January, 2010 when he was forced out of work to 31st December 2014.
  4.  An order directing the defendant company to pay the 1st claimant the sum of N400,000 being his monthly salary and allowance beginning from the 1st day of January 2015 till when judgment is delivered in this matter.
  5.  An order directing the defendant to restore the 1st claimant to his work and his position as cash officer being his last position at the time he was prevented from going to his office.
  6. An order that the 2nd claimant’s salaries and allowances which he would have earned up to the earliest time prior to his termination from the employment with the defendant, be paid to him.
  7. An order that the 3rd claimant’s salaries and allowances which he would have earned up to the earliest time prior to his termination from the employment with the defendant, be paid to him.

The Defendant entered appearance on 20/12/2013 and filed its amended defence on 12/6/2018. The claimants reacted by filing an amended Reply on 26/09/2018.

CLAIMANTS’ CASE:

The 1st Claimant testified as CW1 and adopted his written deposition on 21/2/2018. He tendered several documents as exhibits in the course of this trial thus:

  1. Exhibit C1(a)—letter of offer of employment dated 15/1/08;
  2. Exhibit C1(b)—confirmation of appointment dated 18/12/08;
  3. Exhibit C2—salary review dated 1/8/08;
  4. Exhibit C3—application for posting dated 4/3/2010;
  5. Exhibit C4— application for posting dated 26/5/10;

CW2, the 2nd claimant adopted his written deposition and tendered 5 documents into evidence, thus:

  1. Exhibit C5— letter of offer of employment dated 14/2/08;
  2. Exhibit C6—confirmation of appointment dated 5/9/08;
  3. Exhibit C7—salary review dated 1/8/08;
  4. Exhibit C8—services no longer required letter dated 31/12/09;
  5. Exhibit C9—resignation letter dated 17/5/10;

Both witnesses were duly cross-examined on 12/6/2018. On 1/11/2018, CW1 adopted his further deposition and tendered CTC of judgment of the Rivers State High Court in suit number AHC/46CR/2009 as exhibit C10. He was consequently cross-examined.

The 3rd claimant testified as CW3 and tendered 5 documents also as:

  1. Exhibit C11—letter of offer of employment dated 1/8/06;
  2. Exhibit C12—resignation letter issued by defendant 1/6/2010;
  3. Exhibit C13—solicitor’s letter dated 10/1/2010;
  4. Exhibit C14—solicitor’s letter dated 9/6/2010;
  5. Exhibit C15— services no longer required dated 31/12/2009.

The Claimants closed their case on that same day.

DEFENDANT’S CASE:

The Defendant bank had on 14/1/2019 called one witness: Godspower Omokwe, who adopted his written deposition of 12/6/18, and relied on the documents tendered by the claimants. The Claimants’ counsel cross-examined him on that day.

Upon the close of trial, respective parties’ counsel were ordered to file their final addresses in compliance with the Rules of this Court. The Defendant’s final written address having now been duly filed and served, was adopted on the 8/4/2019 and adjourned to today, the 20/5/2019 for delivery of judgment. The Claimants’ counsel, having neglected and or refused to file any final submissions within the time allowed so to do, was foreclosed on the 8/4/2019.

DEFENDANT’S FINAL SUBMISSIONS:

The Defendant’s Counsel proposed one issue for determination in his written final address filed on 29/1/2019, as follows: whether from the evidence and exhibits before this court, the claimants have made out a sustainable case to be entitled to their reliefs as demonstrated in their statement of facts?

In his argument, counsel stated that the employment relationship between the parties in this suit is that of master-servant and the burden of proving that the determination of their employments was indeed unlawful lay on them. Counsel went further to contend that the only way to discharge this burden was by producing the staff handbook and the bank’s management manual which contains the terms of the claimants’ employment. He cited and relied on the cases of Okomu Oil Palm v Iserhienrhien, UBN Ltd v Ogboh (citations supplied)

Again, it was argued that an employer is not bound to state any reasons for the termination of an employment, and as such, it is speculative for these claimants to allege that their employments was terminated consequent upon the robbery incident of 21/4/2009.

Further, counsel was of the view that following the principle tha a willing employee cannot be imposed on an unwilling employer, the 2nd relief in this suit cannot be granted by this court. The cases of Agoma v Guinness Nig ltd, and Odiase v Auchi Poly(citations supplied) were relied on in support of the contention that an employee who accepts salary in lieu of notice cannot subsequently challenge his termination as being wrongful.

Also, counsel submitted that reliefs C and D in this suit are in the nature of special damages which must be pleaded and proved, per NBBS Co Ltd v ACB (citation supplied). Accordingly, the claimants failed to do this in their statement of facts. In conclusion, learned defense counsel urged this court to dismiss this suit with substantial cost.

 

CLAIMANTS’ SUBMISSIONS:

 

The claimants upon receipt of the defendant’s final written address did not however file any address, and were on the 8/4/2019 consequently foreclosed upon the defendant counsel’s application, from so doing.

 

 

 

 

DECISION:

 

Having considered the pleadings, evidence on either side, and the submissions of the learned Defense Counsel, I find that one issue calls for resolution in this cause, which is: Whether the claimants are entitled to their reliefs?

What are the facts relevant to these claims?

It is undisputed that the 1st claimant was employed by the defendant on 15/1/2008. His salaries were paid up to December 2009, and he was disengaged via a text message on 10/5/2010. Expectedly, the defendant denied these averments in paragraphs 18 and 19 of the statement of defence. The defendant particularly, averred that:

“18:…contrary to the claims of the claimant that his employment was not terminated, he was duly informed via letters dated 31st December, 2009, 25th January 2010 and 17th May of the fact that his services were no longer required…

19:…that the 1st claimant was accordingly paid his terminal benefits including but not limited to severance allowance, salary in lieu and earned leave allowance.”

Curiously and interestingly, the letters referred to by the defendant bank in paragraph 18 of its defence was never tendered in evidence at the trial. The law is clear on this point that pleadings not backed up by evidence is deemed abandoned and goes to no issue. In other words, a defendant that fails to give evidence in support of his pleadings, is deemed to have accepted and rested his case on the facts adduced by the plaintiff notwithstanding his general traverse.

The 1st claimant in proof of these reliefs tendered as evidence documents including Exhibit C1A, his employment letter. He testified further that his employment was confirmed 12 months thereafter. The Defense Counsel firmly contended that the evidence before me is not sufficient to make a finding of whether the termination of the claimants’ employments was unlawful or not, because the Bank policy where conditions of their employment are contained was not furnished at the trial.

While I agree that the terms and conditions of an employment relationship may be contained in several documents, in the present case, the claimant tendered Exhibit C1A, as the basis of his employment with the Defendant. The said letter contained terms with respect to the position offered, the date of commencement of the employment, the benefits attached to the employment, the hours of work required of the 1st claimant, training/probation period, and the conditions for the confirmation of the employment. The letter reads in part thus:

          “Your employment shall be subject to the following conditions:

  • …
  • …
  • …

Other conditions are as contained in the Bank’s Policy.”

It is obvious that the exhibit C1A is the primary document upon which the employment between the 1st claimant and the defendant stands. It contains the fundamental and essential terms and conditions of employment and also incorporated the Bank’s policies on employment.

The defendant in its paragraph 21 of its defence averred in part that the employment is governed by “the claimants’ contracts/conditions of service as contained in their respective letters of employment, bank policy/people’s management manual.”(emphasis mine).

I therefore find that exhibit C1A is indeed sufficient to determine the terms of the respective contracts of employment entered into by these parties, and in particular whether those terms were duly complied with when the defendant terminated the 1st claimant’s employment.

Expectedly, when the claimants pleaded and led evidence that the 1st claimant’s last salary was paid in December 2009 and that in May 2010, his employment was terminated by a phone SMS text in violation of his employment contract (per paragraphs 16 and 17 of the Further Amended Statement of Facts), the Defendant in view of its denial in paragraphs 18 and 19 of its statement of defence, ought to proceed to show evidence of the payment of the 1st claimant’s January, February, March, April, and May 2010 salaries, including the Claimants’ one month salary in lieu of notice paid contemporaneously with the letter terminating the 1st claimant’s employment. Immediately the Claimants averred that the 1st claimant was not paid his salaries for those months in 2010, and that he was wrongfully terminated, the burden shifted to the Defendant to prove that the 1st Claimant did indeed receive his salaries and the purported letter terminating his employment. The burden of proving a fact rests squarely on the party who asserts the affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof. See Omisore v Aregbesola (2015) All FWLR (pt 813) 1673 at 1728, A-B. The effect is that the averment by the 1st Claimant that he was neither paid his salaries nor served with a letter terminating his employment in compliance with his letter of employment, was not disproved by the Defendant bank.

In any event, assuming I were to believe the defendant’s averments in paragraphs 18 and 19 of its statement of defence, there is nothing contained in them stating that any payment in lieu of notice was made to the 1st claimant at the same time that “he was duly informed via purported letters dated 31st December, 2009, 25th January 2010 and 17th May, 2010 of the fact that his services were no longer required”.

It is my considered and conscientious view that the 1st claimant’s employment was factually, wrongfully terminated.

Having thus found the defendant bank to be in breach of the contract of employment, the claimant is entitled to damages for the breach. I rely on the decision of the court in Oforishe v Nigerian Gas Company Ltd (2018)2 NWLR (pt 1602) 35 at 61. Consequently, I award the 1st claimant’s one month basic salary of N400,000 as damages for wrongful termination of his employment.

Logically, reliefs B and E made by the claimants must fail and they are hereby dismissed. The employments being of a master-servant, and drawing from the conduct of the defendant indicating its unwillingness to continue employing the 1st claimant, a declaration cannot therefore issue to treat the contract of employment as subsisting till date. Neither can a declaration to reinstate the 1st claimant back to his hitherto position, be granted. See Ilodibia v. N.C.C Ltd (1997) 7 NWLR (Pt. 512) 174 at 188

Giving my finding that the 1st Claimant was indeed wrongfully terminated, the defendant is further ordered to pay the 1st claimant his salaries for the months of January, February, March, and April 2010 at N400,000.00 per month which is N 1,600,000.00.

On reliefs A, F and G sought by these claimants, the 2nd and 3rd claimants were employed on 14/2/2008, and 1/8/2006 respectively. In Paragraphs 20 and 21 of the statement of facts, the claimants averred that the defendant disengaged their services by a letter dated 31/12/2009.  I believe that the task before me is pretty straightforward. My duty is simply to determine whether the disengagement letters exhibits C8 and C15 validly severed the employment relationship between the claimants and the defendant.

The relevant paragraphs of exhibits C8 and C15 are the first, third and fourth; which reads:

“Following the recent developments in Finbank and the banking industry at large, we regret to inform you that the Bank will no longer require your services. This is with immediate effect.

 

In line with the Bank’s conditions of service, one (1) month basic salary in lieu of notice will be paid to you in addition to your other benefits. Your net financial position is being computed and will be communicated shortly.”(emphasis mine).

The logical conclusion to be drawn is that these termination letters did not give the 2nd and 3rd claimants the requisite notice as required by their contractual agreement of employment between the parties.

The evidence before me supports the finding that payment of salary in lieu of notice was not paid simultaneously with the service of the termination letters on them.

Consequently, I must hold that the letters dated 31/12/2009 did not validly terminate the employments of the 2nd and 3rd claimants. As such, their employments were indeed and in fact, wrongfully terminated. This is owing to the fact that it has been held in numerous cases that the payment of salary in lieu of notice of termination must be paid at the same time the letter terminating the employment is given to an employee. See  Chukwuma v S.P.D.C. (1993) 4 NWLR (pt 289) 536-7.

What therefore are the 2nd and 3rd claimants then entitled to for their wrongful termination?

The law is settled on the point that once an employer purports to disengage an employee, the employee is only entitled to damages. The damages recoverable by claimants whose employments were wrongfully terminated are losses foreseeable by the parties at the time the contract was breached. Such damages are not at large, they are limited by the terms of the contract, and the employee is entitled to would be salaries for the length of time notice should have been given.

This principle was clearly outlined in RELIANCE TELECOM LTD v ADEGBOYEGA (2017) 8 NWLR (PT 1567) 319 at 332 as follows:

 “ the damages payable for any employment that has been wrongfully terminated are not at large , they are limited by the conditions of service, and the plaintiff is only entitled to what he would have earned over the period of notice”.

 

As of right, the salaries to be paid over this period of notice would include benefits and other earnings in accordance with the contract of employment – per IFETA v SPDC LTD (2006) 8 NWLR (pt 983) 385 at 619-620, paras H-A, and UBN PLC v CHINYERE (2010) 10 NWLR (pt 1203) 453 at 475 A-C.

Consequently, reliefs A, F, and G succeed in part. I shall award the sums of N 216,666 and N200,000 only to the 2nd and 3rd claimants respectively as damages for their wrongful termination.

For the avoidance of any doubt, this Court finds for these claimants and awards these sums only to them against the Defendant thus:

  1. Order the defendants to pay the 1st claimant the sum of N 400,000.00 (four hundred thousand naira) only as general damages for the wrongful termination of his employment with the defendant bank.
  2. Order the defendant bank to pay the 1st claimant the sum of N1,600,000 (one million, and six hundred thousand naira) only being his salaries for the months of January –April 2010.
  3. Order the defendant bank to pay the 2nd claimant the sum of N 216,666 as general damages for wrongful termination of his employment contrary to the express terms of his contract of employment.
  4. Order the defendant bank to pay the 3rd claimant the sum of N 200,000 as general damages for wrongful termination of his employment contrary to the express terms of his contract of employment.
  5. Order Defendant bank to pay the Claimant the sums contained in orders 1, 2, 3 and 4 above within 7 days of this here judgment, failing which the entire sums shall attract interest at 10% per annum until fully paid.
  6. Order the sum of N150,000.00 as cost of maintaining this action.

This suit succeeds in part only and I so pronounce.

Delivered in Owerri this 20th day of May, 2019.

Justice Ibrahim S. Galadima,

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