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National Industrial Court

AKAGWU AUDU YAKUBU & 2 Ors. -VS- CENTRAL BANK OF NIGERIA

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

                                                          HOLDEN AT ABUJA                                                         

BEFORE HIS LORDSHIP,

Hon. Justice B.A. Adejumo, OFR…………………………………President

Date: 17TH OCTOBER 2018                                  SUIT NO. NICN/ABJ/119/2015           

BETWEEN:

  1. AKAGWU AUDU YAKUBU
  2. IDRIS AUWAL                                      ——————————-CLAIMANTS
  3. MR. DACIYA LONGJI DAVID

AND                  

CENTRAL BANK OF NIGERIA——————————————–DEFENDANT

 

REPRESENTATION:

  1. O. ONI, ESQ., for the Claimants (appears with FEMI ADEDEJI. ESQ.)

ADUOJO ABAH, ESQ., holding the brief of LAKAN OLANISEBE, ESQ., for the Defendant

  JUDGMENT

The Claimants instituted this action vide General Form of Complaint dated 5th May 2015 but filed on 8th May 2018. The reliefs sought by the claimants against the Defendant in the complaint are:

  1. A Declaration that the purported termination of the claimants’ appointment with the Defendant is illegal and irregular as it violates the Central Bank of Nigeria Act Cap. C4 LFN 2004 and paragraph 16.5 of the Human Resource Policies and Procedures of the Defendant.   
  2. An Order of this Honourable Court reinstating the Claimants to their respective employment with the Defendant and with immediate effect.
  3. An Order directing the defendant to pay the Claimants all accrued salaries, benefits and allowances that are due to the Claimants since their appointments were irregularly terminated by the Defendant.
  4. An order directing the Defendant to pay each of the Claimants the sum of N10, 000, 000. 00 (Ten Million Naira) only as general damages.

In company of the complaint are the Claimants’ Statement of fact, Witness Statements on Oath, the Claimants list of documents to be relied on at the hearing of the case and list of witnesses to be called in prove of his case.

The defendant’s statement of defence was dated and filed on 26 /08/2015.  In company of the defendant’s statement of defence is the defendant’s Witness Statement on Oath, list of documents to be relied on at the hearing of the case and list of witness to be called by the defendant in defence of its case.

The claimants filed a 15 paragraph reply to the defendant’s statement of defence. The said reply was dated 7th December 2015 but was filed on 11th December 2015. The reply was accompanied with additional witness statement on oath of the 1st claimant and document marked as 2 a-c.

The claimants’ case is that the termination of their employment on the ground that their services were no longer required is illegal as it is purportedly done in violation of the Human Resources policies and Procedure of the Defendant which the claimants claimed to be the condition of service regulating their employment with the defendant. The claimants consequently prayed this Court to reinstate them to the employment and order the payment of their outstanding salaries and other emoluments.

At the trial, the claimants called three witnesses and tendered the following documents evidence:

  1. Witness statement on oath of CW1 deposed to on 8th May 2015 as EXHIBIT CW1A – CWIA4.
  2. The additional Statement on Oath as EXHIBIT CW1B-CW1B3.
  3. Provisional offer of Appointment of the 1st Claimant dated 26th September 2011 as EXHIBIT CW1C – CWIC1.
  4.       Letter of Confirmation of Appointment of the 1st Claimant as EXH. CW1D
  5. Letter dated 15th April 2013 as EXH. CW1E
  6. Letter of suspension of the 1st Claimant as EXH. CW1F
  7. 1st Claimant’s reply to the Query as EXH. CW1H-CW1H1
  8. Warning instruction for the disposal of unfit note as EXH. CW1J- CW1J7
  9. Letter of Termination of the 1st Claimant’s employment as EXH. CW1K
  10. The Claimant’s Human Resources Policies and Procedures Manual as EXHCW1L- CW1L157
  11. Report of a Special Investigation Panel admitted as EXH. CW1M- EXH. CW1M2015
  12. Report of the Central Disciplinary Commission wherein it was recommended that the complainants be issued letters of warning as EXH. CW1N
  13. Internal Memorandum from Director Currency Operation as EXH. CW1P- EXH. CW1P2
  14. PW2 statement on oath as EXH. CW2B1-CW2B2
  15. Letter of Provisional offer of appointment to the 2nd Claimant dated December 28, 2009 as EXH. EXH. CW2A1-EXH. CW2B2
  16. Letter of Provisional offer of appointment dated 3rd Claimant as EXH. CW3B1 – CW3B2
  17. Letter of Confirmation of Appointment of 2nd defendant as EXH.CW3C
  18. Query issued to the 2nd Claimant as EXH. CW2C
  19. 2nd Claimant’s reply to query dated 2nd December 2014 as EXH. CW2D
  20. Letter of suspension of 2nd Defendant as EXH. CW2E
  21. Letter of Termination of Appointment of 2nd claimant as EXH. CW2F
  22. Letter of Confirmation of Appointment of 3rd Claimant as Exhibit CW2H.
  23. Letter of Suspension of Mr. Daciya L. D, 3rd Claimant as Exhibit CW3D.
  24. Query letter to the 3rd Claimant as Exhibit CW3E.
  25. Letter dated 2nd December 2014 i.e. 3rd Claimant’s reply to query as Exhibit CW3F1-CW3F2
  26.  Letter of Termination of Appointment addressed to the 3rd claimant as Exhibit CW3G

The defendant also tendered the following documents:

  1. Exhibit DW1A1 –DW1A5 as the witness Statement on Oath
  2. Report of a Special Investigation Panel as Exhibit DW1B1-DW1B206
  3. Report of Settlement of the Central Disciplinary Committee (CPC) as Exhibit CW1C1- CWC201
  4. Human Resource Policies and Procedure as Exhibit DW1D1-DW1D49

At the close of evidence by the parties to the suit, Court ordered the parties to file their respective final written addresses.

The Defendant’s written address was dated 27th February 2018 and filed on 28th February 2018. The said final written address was settled by Lekan Olanisebe, Esq., of Lekan Olanisebe & Co., Suites 15, 16, & 18 Sura Office Complex, Simpson Street, Lagos State c/o Seal Chambers, Suite 27, Hilltop Plaza, Beside UBEC, Wuse Zone 4, Abuja. The Claimants’ final written address was dated 9th of April 2018 and filed on 17th of April 2018. The said claimants’ final written address was settled by Funmi Falana, (Mrs), of Femi Falana Chambers, 22, Mediterranean Street, Imani Estate, Maitama, Abuja.  The defendant’s reply on point of law to the claimants’ final written address was dated 25th April 2018 but was filed on 26th April 2018.

Counsel for the parties adopted their respective written addresses and the matter was adjourned for judgment. I will now proceed to summarize the submissions made by counsel to the parties in their final written addresses.

Counsel for the defendant commenced his written address by stating the brief history of the case. He stated that the claimants’ case was brought in respect of termination of their appointment. He stated that the claimants were involved in certain briquetting operation between 22nd and 26th day of April 2013 and certain incident of unauthorized removal of currency box containing Ten Million Naira (N10, 000, 000.00) did occur during the exercise.  It is the case of the defendant that the claimants failed to report the incident to their respective Line Manager as required under the Human Resources Policies and Procedures guiding the terms of their employments and the conditions of their services   to the Defendant Bank.

It is the case of the defendant that with the laid down procedures which normally guide such briquetting operations, the defendant Bank would always expect that every briquetting exercise should be conducted without any incident or breach of procedure that could subvert such operations. Having discovered that the briquetting exercise which occurred between 8th to 12th day of April 2014 has suffered very serious lapses or breach of procedures on account of newspapers, instead of currency notes, stuffed in a currency box found during the said briquetting exercise, the defendant constituted a Special Investigation Panel to investigate the remote and immediate causes or factors that led to the said anomaly.

It is the position of the defendant that in the course of the said investigations, more facts emerged that similar things had happened in the past. The defendant further posited that the claimants participated in the Briquetting Operation which held between 22nd and 26th April 2013 and they failed to make any formal report to the Defendant Bank. According to the defendant, the claimants kept mute over the incidence.

The defendant admitted that the claimants were not indicted for the removal of currency or box stuffing of boxes with newspaper, but hold the position that the panel of investigation found that the three (3) Claimants in this suit had cases to answer on the issue of non-reporting. The claimants were issued query to which they responded. Their cases were considered by the defendant’s Central Disciplinary Committee which recommended sanctions to the Defendant Bank’s Management. It was however the Management’s decision that the claimants’ employment as employees of the defendant be terminated.

The claimants were aggrieved by the Defendant Bank’s Management termination of their employment and instituted this action against the defendant to challenge the termination of their employment.

The defendant counsel formulated the following issues for determination thus:

  1. Having regard to the nature of the contract of employment and conditions of services whilst in the employment of the Defendant’s Bank, whether or not it could be regarded that the claimants’ employment enjoyed statutory protection of flavor?
  2. Having regard to their employment with the Defendant Bank, whether or not the Claimants were bound by the Defendant Bank’s Human Resources Policies and Procedure Manual – (HRPPM)?.
  3. Having regards to the Defendant Bank’s Human Resources Policies and Procedure Manual – (HRPPM) particularly Section 6.2.1, whether the Claimants had the obligations to report or communicate officially to the Defendant on issues or matters of concern or interests to the Defendant Bank such as the incident of currency box removal which occurred at the briquetting exercise in which the Claimants participated?.
  4. Having regards to the totality of evidence adduced to the Court in this suit, whether or not the claimants indeed discharged their obligation to the Defendant Bank in respect of the incident arising from the briquetting operation in which the Claimants were involved?.
  5. Having regards to the Defendant Bank’s Disciplinary Procedures leading to the termination of the Claimants’ employment respectively, whether or not the termination of the claimants’ employment was unlawful?
  6. Whether or not the claimants discharge the onus of proof in respect of the allegations that the termination of their appointment was illegal and irregular and a violation of defendant’s enabling statute as to justify the reliefs sought by the claimants?.

On issue 1, i.e. Having regard to the nature of the contract of employment and conditions of services whilst in the employment of the Defendant’s Bank, whether or not it could be regarded that the claimants’ employment enjoyed statutory protection of flavor?, defendant counsel posited that the nature of contract of employment and the conditions guiding it would determine the type of species, or category of employment there was in place for the employee(s) concerned.

In examining the classes of employer-employee contract in Nigeria Defendant’s Counsel cited the case of P.Z. & Co. LTD. V. OGEDENGBE (1972) 1 ALL NLR PT.1 P. 202 @ 205-206  where Madarikan, JSC  stated that “there are four classes of employer-employee contract in Nigeria. The first is under common law, where in the absence of a written contract, each part could abrogate the contract on a week or a month’s notice or, on payment of the wage of a week or month or whatever was the agreed period of payment of wages. The second class belongs to cases where there is a written contract of employment between a master and a servant. In such case, the Court has a duty to determine the rights of the parties under the contract. The third one is where a group of allied employers agreed to conclude a contract of employment with groups or union of allied employees as it is usually the case in collective bargain employment or agreement. The fourth class of employment belong to the regimes of statute whereby intervention of statutes, preconditions were stipulated as to the requirements for appointment and the provisions for removal of appointees from such appointments expressly contained in statutes”.

It is the position of defendant’s counsel that by the provision of Section 14 (4) of the Central Bank of Nigeria (Establishment) Act, CAP C4, Laws of the Federation of Nigeria (2004) which provides that “all appointments of official and other employees of the bank shall be only to positions created by the Board”, it is abundantly clear that the positions held by the Claimants whilst in the employment of the Defendant Bank and the Contract of Appointments including the conditions of service as contained in the Human Resources Policies and Procedures Manual (herein after referred to as HRPPM), were all a creation of the Board of the Defendant Bank and not any statute for that matter.

Counsel for the defendant contended, citing the case of OGBAJI v. AREWA TEXTILES PLC (2000) 111 NWLR PT. 678 P. 322 @ 335, that the EXH. CW1C1-2, CW2B1-2 and CW3B1-2 being letters of appointment addressed to the claimants respectively upon their employment with the Defendant Bank  and the HRPPM essentially depicted the nature of the claimants’ contract of employment as that determinable by agreement of the parties. Counsel further referred to the cases of SHUAIBU v. UBN PLC (1995) 4 NWLR PT. 388 P. 173 @ P. 180 and FAKUADE v. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD (1993) 5 NWLR PT. 291 P, 47 @ 63 per Karibi- Whyte, JSC

The defendant’s counsel submitted, relying on the case of BOLAJI V. AKINKUNMI V. ALH. R. OLAREWAJU SADIQ (1997) 8 NWLR PT. 516 P.277@ P. 291, that the onus of proof lies on the claimant who alleged that their contract of employment had statutory flavor.

Counsel submitted that claimants failed to adduce any scintilla of evidence to support their pleadings that their contract of employment was statutory in nature and he urged the Court to resolve this issue against the claimants respectively.

On issue 2, i.e.  Having regard to their employment with the Defendant Bank, whether or not the Claimants were bound by the Defendant Bank’s Human Resources Policies and Procedure Manual – (HRPPM)?, counsel submitted that his argument is premised on the policies and procedures which regulated the claimants’ condition of service whilst in the employment of the defendant bank, which becomes relevant in the overall consideration of the terms and conditions of the Claimants’ contract of employment with the defendant bank.

It is counsel’s argument that EXH. CW1J1-7 titled “WARNING INSTRUCTION FOR THE DISPOSAL OF UNFIT BANK NOTES THROUGH BRIQUETTING MACHINE” mentioned by the claimants in their statements on oath as their reasons for holding verbal discussion with the Branch Controller cannot be solely relied on to the exclusion of the HRPPM which regulated the terms of employment of the claimants with the defendant. Hence the need for the Court to resolve the question whether or not the claimants were bound by the defendant bank’s HRPPM.

Counsel argued that EXH. CW1J1-7 titled “WARNING INSTRUCTION FOR THE DISPOSAL OF UNFIT BANK NOTES THROUGH BRIQUETTING MACHINE” merely guides a specific duty assignment which is the briquetting exercise without more, while the HRPPM admitted in evidence as EXH. CWIL1-157 and also EXH. DW1D1-149 is the embodiment of rules and regulations which governed the contract of employment with the Defendant Bank and the claimants were bound by it. Counsel referred to the cases of OSUAGWU v. A.G. ANAMBRA STATE (1993) 4 NWLR PT. 285 P. 13 @ P. 14 and MOBIL v. ASUAH (2001) 16 NWLR PT. 740 P. 723 @ P. 756, in support of his position.

The Defendant Counsel further cited the case of CALABAR CEMENT COMPANY LTD. v. DANIEL (1991) 4 NWLR PT.188 P. 750 @ P. 760 where it was held by Niki Tobi, JCA that “where the terms of contract are clear and unambiguous, the parties cannot move out of it in search for more favourable terms or greener pastures”.

Counsel argued that S. 14 (4) of the CBN (Establishment) Act, provides that “appointment of employees of the Bank shall only be in respect of positions created by the Bank and on such terms and conditions as may be laid down by the Board”. It is the contention of counsel that the claimants were bound by the terms and conditions laid down by the Board of the Defendant Bank which were embodied in EXH. CWIL1-157 and also EXH. DW1D1-149.  He urged this Court to so hold.

On issue 3, i.e.,  Having regards to the Defendant Bank’s Human Resources Policies and Procedure Manual – (HRPPM) particularly Section 6.2.1, whether the Claimants had the obligations to report or communicate officially to the Defendant on issues or matters of concern or interests to the Defendant Bank such as the incident of currency box removal which occurred at the briquetting exercise in which the Claimants participated?, counsel argued that sequel to the argument that the claimants were bound by HRPPM and EXH. DW1D1-149, it is beyond doubt that effective communication was identified as part  of the core values driving the mission, vision and business objectives of the defendant Bank.

It is the contention of the Defendant’s counsel that Chapter 1.4 of the HRPPM has a subheading titled TEAMWORK which expressly provides that “we work and consult together so as to achieve set goals. Effective team work demands mutual trust and honest feedback at all levels, open communications, freedom of expression without fear of reprisal and respect for each other, no matter how junior or senior”.

Counsel further referred to Chapter 6.2 of the HRPPM under the Heading titled “COMMUNICATION WITH EMPLOYEES” at page 43 of the Manual which provides that “the Bank recognizes the need for an effective communication with its employees. A wide variety of information needs to be disseminated and employees at all levels also receive information on general issues from outside the Bank. Therefore it is of particular importance that employee’s communication with the Bank on matters of Bank business and their employment should be effective. In CBN, there exist both formal and informal channels of communication”. Counsel further refer the court to Sub-paragraph 6.2.2.2 of the HRPPM on the classes of formal and informal channels of communication available to employees of the Defendant Bank.

It is the position of the defendant’s counsel that the claimant owed obligations to communicate with the defendant on matters of its business and to disseminate information on issues of particular importance as may come to the awareness of the claimant, particularly on their discovery of the incident of unauthourized removal of currency box containing N10 Million in the briquetting operation in which they participated between 22nd and 26th day of April 2013.

Counsel urged the Court resolve this issue in favour of the defendant and hold that the Claimants had the obligations to communicate with the Defendant Bank formally and effectively

On issue 4, i.e. Having regards to the totality of evidence adduced to the Court in this suit, whether or not the claimants indeed discharged their obligation to the Defendant Bank in respect of the incident arising from the briquetting operation in which the Claimants were involved?, it is the contention of  the defendant’s counsel that the claimants failed to discharge their obligations as expected of them and therefore failed to exercise good discretion or take initiative to enhance or ensure effective communication with the defendant on the incident of the briquetting operation. He referred to Special Investigation Panel’s report admitted in evidence as EXH. CW1M1-205 particularly pages 33,34,35,43,44, 45, 46, 47, 48, 49 and 50, also pages 164, 165, 166, 167, 168, 171, 172, 174, 175 and 176 where it was found by the Panel that all the claimants in this suit had case to answer.

It is the submission of counsel that the oral testimony of each of the claimants substantially corroborated the findings of the Special Investigation Panel constituted by the defendant Bank.

Counsel urged this Court to resolve this issue in favour of the defendant.

On issue 5, i.e. Having regards to the Defendant Bank’s Disciplinary Procedures leading to the termination of the Claimants’ employment respectively, whether or not the termination of the claimants’ employment was unlawful?, counsel submitted that an inquiry as to the illegality or otherwise of an employer’s action in terminating the appointment of his employee is one to be conducted by looking into the contract of employment between the parties thereto.

Citing the case of UBN LTD. V. OGHIAH (1995)2 NWLR PT. 380 P. 647 @ 664, counsel reiterate his earlier argument that the claimants’ employment with the defendant bank were not statute-based and as such does not have any statutory flavor. It is the contention of the defendant’s counsel that the claimants’ employments were such there were determinable on agreement of parties simpliciter. Counsel further refer to the case of UBN LTD V. OGHIAH (SURA).

Counsel submitted that the claimants were afforded fair hearing and there was no defect complained of by the claimants in the Disciplinary Procedures leading to the Claimants being sanctioned, although the claimants have alleged that the termination of their employment is illegal and irregular. Counsel argued that the onus of proof lie on the claimants who claimed that termination of their appointment is illegal and irregular. Counsel cited the case of CALABAR CEMENT COMPANY LTD. V. DANIEL (SUPRA) where it was held per NIKI TOBI, JCA that “the onus is on the party alleging wrongful dismissal or termination of appointment to so prove. And he has to discharge the onus by relying on the contract of service and the notice of wrongful dismissal or termination”.

Counsel further submitted that an employer has the power to discipline its erring staff. The case of OBOT V. CBN (1993) 8 NWLR PT. 310 P. 140 was cited to support the above position. Counsel reiterated the defendant’s position to stand by its decision to terminate the appointment of the claimants accordingly.

Citing the case of  NNPC V. IDONIBOYE-OBU (SUPRA) it is the contention of the defendant’s counsel that an employer is under no obligation to cite reasons for termination of appointment of his employees. He posited that the defendant bank complied substantially with the HRPPM which regulated the claimants’ terms and conditions of service with the defendant. Counsel referred to Chapter 6.4.2.2. Paragraph B (2) of the HRPPM titled “MISCONDUCT COULD LEAD TO TERMINATION OF APPOINTMENT”.

It is further submitted by counsel that item V of the said paragraph B (2) stipulates that “failure to meet an acceptable standard of efficiency and productivity” is misconduct.

It is the position of counsel that Chapter 6.4.3.5 of the HRPPM document under a Sub-heading titled “Termination of Appointment” gives two different circumstances under which the rule as to termination of appointment may be invoked. The first circumstance is where a termination could occur as a final step in a chain of disciplinary actions arising from consistently unsatisfactory conduct or poor performance or misconduct. The second circumstance relates to case of “serious misconduct for which in the opinion of the Bank, instant dismissal is not appropriate”.

Counsel contended that it is within the discretion of the Bank to apply rule as to termination of appointment of an employee depending on the applicability of any of those circumstances illustrated above to the facts of every case which may inform the taking of such decision.

It is the position of defendant’s counsel that in the light of the above, the decision of the defendant to terminate the appointment of the claimants was not illegal nor irregular and that the defendant’s action was in conformity with the extant policies and procedures laid down by the Board of the Defendant Bank.

Relying on the decision in LAYODE V. PANALPINA WORLD TRANSPORT (NIG.) LTD (1996) 6 NWLR PT.  456 P. 544 @ P. 555, Counsel posited that there was nothing arbitrary, illegal or irregular in the termination of claimants’ appointments. Counsel prayed this court to resolve this issue in favour of the defendant.

On issue 6, i.e. Whether or not the claimants discharge the onus of proof in respect of the allegations that the termination of their appointment was illegal and irregular and a violation of defendant’s enabling statute as to justify the reliefs sought by the claimants?, counsel submitted that having regard to the totality of evidence adduced in this proceeding, the claimants had failed to cite any law or statute or any evidence whatsoever in proof of their allegations against the defendant bank.

Counsel cited the case of CALABAR CEMENT COMPANY LTD V. DANIEL (SUPRA) and argued that the claimants who had the onus of proof in this regard had failed woefully to discharge same and as such all the reliefs sought by the Claimants must fail.

In conclusion, counsel urged this court to dismiss all the reliefs sought by the Claimants in this suit in their entirety.

The claimants’ counsel started his written address by restating the fact that the claimants   were employees of the defendant until the termination of their appointment by the defendant on the ground that their services were no longer required. It is the position of the claimants’ counsel that EXH. CWIL was the condition of service governing the claimants’ employment at all material time.

Counsel further stated that although the claimants participated in the briquetting operation between 22nd -26 April 2013 where one Fatai Olowoeko attempted to steal a box of money but the claimants resisted same by reporting same to the branch controller in charge of the activity of the defendant at its Ibadan branch. It is the position of the claimant that the Disciplinary committee set up by the defendant in 2015 did not comply with the provisions of Paragraph 6.4.3 of the HRPPM before the termination of the appointment of the claimants on 10th February 2015. Claimants counsel recap the provisions of the above mentioned paragraph thus:

“No disciplinary action shall be taken against an employee without an investigation to establish the fact in the course of which

  1. The employee shall always be given fair hearing
  2. The employee shall be informed of the decision taken except in the case of verbal warning the advice shall be given to him/her in writing.

The claimants instituted this suit to challenge the termination of their employments by the defendant on the ground that their services were no longer required.

Counsel to the claimants distilled two issues for determination thus:

  1. Whether the termination of the Claimants’ employment on the ground that their services “were no longer required” is not a nullity as it is a violation of the Human Resources Policies and Procedures of the Defendant.
  2. Whether the Claimants are not entitled to be reinstated into the Services of the defendant and their outstanding salaries and allowances paid to them their employment having been unlawfully terminated.

On issue 1, i.e., Whether the termination of the Claimants’ employment on the ground that their services “were no longer required” is not a nullity as it is a violation of the Human Resources Policies and Procedures of the Defendant, counsel argued that an organization being created by a statute, cannot act except within and under the powers conferred on it by relevant statute, the Central Bank Act, in this instant.

Counsel cited the case of CENTRAL BANK OF NIGERIA & ANOR. V. MRS AGNES M. IGWILLO (2007) LPELR 835 (SC) where the Supreme Court had held that “an employment is said to have statutory flavor when the appointment is protected by statute or laid down regulation made to govern the procedure for employment and discipline of an employee” to support his argument that the employment of the claimants are statutorily  flavoured.

Counsel argued that from the evidence placed before the Court it is clear that the Claimants’ employment are regulated by the Central Bank Act and EXH. CWIL1-157 made pursuant to Section 14 (4) of the Central Bank Act which provides that “appointment of employees of the Bank shall only be in respect of positions created by the Bank and on such terms and conditions as may be laid down by the Board”. Counsel enjoined this court to hold that the employment of the Claimants is one with statutory flavor.

Counsel further posited that paragraph 6.4.3.6 of the HRPPM provides the circumstances when employment of a staff in the defendant Bank can be terminated thus:

(1).     “the final step in a chain of disciplinary actions arising from consistently unsatisfactory conduct or poor performance or misconduct. Serious misconduct for which in the opinion of the Bank, instant dismissal is not applicable.

Authority for termination of appointment- the Head of a department/outstation shall review any recommendation of Department/Branch disciplinary Committee for termination of appointment of any employee in his/her department/outstation. He/she shall forward his/her review together with the report of the Head, Human Resources who shall make the appropriate recommendation.

The Committee of Governors shall approve the dismissal/termination of appointment of all category of employee but ratified by the Board in case of the executive staff”.  

It is counsel’s argument that from the above position, termination of the appointment of the claimants can only be the final step in the disciplinary action and any termination of employment outside those listed under Paragraph 6.4.3.6 of the HRPPM would be a gross violation of the defendant’s condition of service. Counsel placed reliance on EXHs. CWIK, CW2F, CE3G paragraph 20 of the statement on oath of the defendant’s only witness where it was deposed that the only reason for the termination of the claimants’ appointment was on the ground that the claimants’ appointment with the defendants “were no longer required”.

Counsel submitted that by the admission of the defendant and the documentary evidence before the Court, it is clear that the only reason why the appointment of the claimants were terminated was because their services were no longer required.

Counsel posited that the position of law is clear that termination of the appointment of the claimants, which enjoys statutory flavor, can only be justified if it is done in strict compliance with the condition of Service governing the contract of employment. Counsel cited the cases of UNION BANK OF NIGERIA LTD V. OGBOH (1995) 2 NWLR PT. 380 P. 647 @ 664 Per Belgore JSC and BALOGUN V. UNIVERSITY OF ABUJA (2003) 13 NWLR PT. 783 P.41 to support the above position. It is counsel position that on the strength of the above cited authorities an order of specific performance or reinstatement would normally be made by court in the circumstance of this case.

Counsel reiterated the fact that Paragraph 6.4.3.6 of the HRPPM is clear as to how and when the claimants’ employment can be terminated. He therefore submitted that terminating the claimants’ appointment on the ground that the “service are no longer required” is alien to the above provision.

Learned claimants’ counsel argued that ordinary meaning of words in a statute should be ascribed to it. He cited the case of A.G. ONDO STATE V. A. G. EKITI STATE (2001) 17 NWLR PT. 743 P. 706, where it was held by Karibi-Whyte, JSC, that “it is well-established and the cardinal principle of interpretation of statute that where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid. See Awolowo V. Shagari (2001) FWLR PT. 73 P. 53,—-. The solemn and sacred duty of the Court is to interpret the words used in the Section by legislator and give to them their intended meaning and effect” to support his position.

Counsel prayed the court to hold that the termination of the claimants’ employment by the defendant for service no longer required is an action in nullity. Counsel cited the case of MACFOY v. UAC (1962) A.C. 152, to support his argument.

Counsel for the Claimants submitted that it is an evidence before this Court that the disciplinary proceeding against the claimants were never conducted in line with paragraph 6.4.3 of the HRPPM which mandated the defendant to communicate in writing the decision taken. The said paragraph provided thus:

  1. No disciplinary action shall be taken against an employee without an investigation to establish the facts in the course of which:
  2. The employee shall always be given fair hearing
  3. The employee shall be informed of any decision taken except in the case of verbal warning; the advice shall be given to him/her in writing.

It is the position of claimants’ counsel that the defendant never informed the Claimant of its decision on the disciplinary action. He posited that the only available to the claimant is EXH. CWIN (which was only issued to the claimants counsel as defence to the claimants’ case) which made recommendations on the claimants at pages 84, 87, and 91 as follows:

“In view of the above, the committee recommends that Mr. Daciya L.D. (ID. No. 19972) Senior Supervisor, be issued with Human Resources letter of warning with full effects”.

“In view of the above, the committee recommends that Mr. A. Y. Akagwu (ID. No. 21104) Assistant Manager, be issued with Human Resources letter of warning with partial effects”.

“In view of the above, the committee recommends that Mr. Idris, A (ID. No. 19887) Assistant Manager, be issued with Human Resources letter of warning with partial effects”.

It is claimants’ counsel argument that there is no evidence before this Honourable Court to contradict the above recommendation and as such the Human Resources of the defendant cannot act otherwise. He further argued that by virtue of paragraph 6.4.3.6 of HRPPM any recommendation made by the Disciplinary committee  SHALL be reviewed by the Head of Department who shall forward his/her review with the report to the Head, Human Resources who shall make appropriate recommendation.

Counsel submitted that the word “shall” used connotes an obligation on the defendant in this respect. Counsel cited the cases of OYIDI V. STATE (2005) 27 WRN P. 1 to support his position. He argued that there is no evidence before the Court to show that the claimants were put on notice before the termination of their employment.

Counsel argued that assuming without conceding that the termination of the claimants’ employment was for discipline, the defendant has failed to comply with the mandatory procedure envisaged by the HRPPM regulating the claimants’ employment and as such the termination of the claimant’s appointment is illegal, void and of no effect as it is done in gross violation of law regulating employment in the defendant Bank.

It is counsel’s position that the claimants have satisfactorily discharged the onus to prove the condition of service regulating the employment and how same was breached by the defendant. He further posited that the duty to justify the reason for the termination of the claimants’ employment is by law placed on the defendant who must justify that same was done in accordance with the condition of service, which duty the defendant have allegedly failed to discharge. The claimants’ counsel is of the view that the defendant has not tendered before this Court evidence to justify the termination of the Claimants’ employment and is therefore deemed to have admitted all the evidences adduce by the claimants in support of their cases.

Learned claimants’ counsel submitted that the claimants’ employment cannot be terminated on the ground that their services are no longer required by the defendant. He therefore urge this Court to hold that the letter of appointment of employment of the claimants dated 10th February 2015 is illegal, null, void and of no effect whatsoever.

On issue 2, i.e. Whether the Claimants are not entitled to be reinstated into the Services of the defendant and their outstanding salaries and allowances paid to them their employment having been unlawfully terminated, counsel adopted all his arguments in support of issue 1 above and further submitted that the right to be reinstated is a right that follows consequently on a declaration that the termination was unlawful, null and void. Counsel referred to the cases of OMIDIORA V. FCSC (2012) 1 NILR VOL. 1; BALOGUN V. UNIVERSITY OF ABUJA (2003) 13 NWLR PT. 783 and PRINCIPLE BASSEY V. A.G. AKWA IBOM STATE & ORS (2016) LPELR – 41244 (CA) to support his argument.

Counsel submitted that having shown credible, uncontroverted and unimpeachable evidences that the termination of the employment of the claimants on the ground that their service where no longer required, and having moved this Honourable Court to declare illegal the termination of the claimants’ employment, the need to return to status quo ante bellum by which the claimants are to enjoy all benefit as bonafide staff of the Defendant, is most apposite and appropriate. He urged this Court to so hold and resolve this issue in the claimants favour.

In the defendant’s counsel reply of law to issues raised in the claimants’ written address, he submitted thus:

  1. That the contract of employment relied on by the claimants was not regulated by the Central Bank of Nigeria Act (2007) and EXH. CWIL1-157 made pursuant to S. 14 (4) of CBN Act. He referred to Ss. 8, 9, 10 and 11 of the CBN Act which, in the view of the defendant’s counsel, stated clearly the categories of staffs whose appointment, qualifications for appointment, remuneration, condition of service, including disqualification and cessation of appointments, among other things were regulated by the relevant statute. Counsel submitted that the claimants were not part of the categories of staff covered by these sections of the CBN Act referred to above.

Counsel further argued that the defendant’s exercise of its powers pursuant to S.14 (4) of its enabling Act in creating other positions under which the Claimants secured appointments with the defendant was not a law making or statutory promulgation but an administrative decision taken in pursuance of S. 6 (1) & (3) of the CBN Act 2007 for purposes of administration of the affairs and business of the defendant Bank.

Learned Defendant Counsel therefore argued that the defendant   is at liberty to create appointment of employees into positions (such as those positions once held by the claimants in the defendant’s employment), as may be considered necessary or expedient for the purposes of achieving its objectives. He posited that the defendant’s enabling Act did not contain any provision whatsoever, for any position or offices into which the claimants were appointed and the Act did not also contain any provisions for qualifications or conditions of Service  of employment for the claimants in any way whatsoever.

Counsel further argued that the employment of the claimants were entirely based on their respective Letter of Provisional Appointment (EXHs. CW1C- CW1C1, CW1D, CW2B1- CW2B2, CW3B1-CW3B2, CW3C) and their respective Letter of Confirmation of appointment without more. He argued that the HRPPM was a separate and independent document which generally defines the code of conduct for all other categories of defendant Bank’s staff whose appointment were not regulated by the enabling statute.

Counsel submitted that the HRPPM is a creation of the Board of the Defendant Bank and not the creation of the CBN Act itself. He posited that the HRPPM did not constitute a schedule or any subsidiary legislation or an addendum to the CBN Act 2007.  He posited that the eloquence of counsel cannot add to the provision or intendment of a statute any element or feature not forming part of the substantive law.

He urged this Court to discountenance the arguments and submissions of the Claimants’ counsel in this respect.

On the above position of defendant’s counsel, he commend to the Court the cases of OGBAJI V. AREWA TEXTILES PLC (2000) 11 NWLR PT. 678. P. 322 @ 335, FAKUADE V. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD (1993) 5 NWLR PT. 291 P. 47 @ 63 and urged this Court to follow the law by upholding the same trite position and consequently resolve this issue against the claimants in this suit that the claimants’ employment whilst it lasted did not enjoy any statutory flavor. He further argued that all the exhibits relevant to the claimants’ contract of employment admitted in this proceedings did not contain any reference to any law or statute pursuant to which the claimants were employed.

  1. Learned Defendant’s counsel submitted, on the issue that the claimants’ appointments were terminated for “services no longer required”, that the law is trite that an employer is under no obligation to cite any reason for terminating the appointment of his employee. Counsel cited the cases of NNPC V. IDONIBOYE-OBU (1996) 1 NWLR PT. 427 P. 655 @ 671-672 and UBN LTD V. OGBIAH (1995)2 NWLR PT. 380 P. 647 @ 664 to buttress his argument.

Counsel submitted that the only sets of documents relating to the contract of employment under which the Claimants severally endorsed their acceptance to be bound in servant and master relationships with the defendant Bank were those documents admitted in evidence in this proceedings, which are EXHs. CW1C- CW1C1, CW1D, CW2B1- CW2B2, CW3B1-CW3B2, CW3C, without more. He therefore submitted that the claimants’ appointments were rightly terminated accordingly.

Counsel further argued that the heavy weather made by the claimants’ counsel of the claimants’ appointment being terminated based on the contents of EXHs. CW1K, CW2F and CW3G were misconceived and misplaced on the ground that the letters of Termination of Appointment issued to all the Claimants respectively were very clear and unambiguous even from the subject matter captioned, which was a restatement of the Defendant Bank’s position and which connotes with all intents and purposes that the services of the employees concerned were no longer required.

Counsel posited that the decision of the defendant was not arbitrary as same was wholly supported by the defendant’s own set rules or policy guidelines under S. 6.4.3.5. (ii). He further posited that the claimants in their oral testimony in Court admitted that they did not make formal report of the incident of N10 Million theft at the briquetting exercise in which they participated as team members. He therefore submitted, citing the cases of BELLO V. FARMERS SUPPLY COMP. LTD (1998)10 NWLR PT. 568 P. 64 and ADESOLA V. ABIDOYE (2001) 2 WRN P. 39 @ P. 60, that a fact admitted requires no further proof.

Counsel argued that contrary to arguments of counsel, all the evidence available to the Court in this proceeding manifestly established the salient fact that fair hearing was fully accorded the claimants all through the various stages of the disciplinary procedure.  He further cited Ss. 6 (1), (2), (3)(f) and 7 of the Central Bank Act as applicable provisions and same does not confer any authority on Disciplinary Committee as to make its findings or recommendations final and conclusive.

Learned defendant’s counsel posited further that the decision of the Board of the Defendant Bank to terminate the Claimants’ appointment was validly taken both within the ambit of the HRPPM. He cited S. 51 of the CBN Act to support his assertion that whatever decision taken by the Board of the Defendant Bank with respect to the termination of the Claimants’ appointment was  for the good order and management of the Defendant Bank.

  1. On the issue as to whether or not the Claimants are entitled to be reinstated, the defendant counsel submitted that the question to consider is what remedy is available to the claimants who alleges wrongful termination of his appointment. He submitted that the remedy available to any employee, like the claimants in this instance, is award of damages and not reinstatement. He cited the cases of JIRGBAGH V. UBN PLC (2001) 2 NWLR PT. 696 P. 11 @ P. 30 to support his argument. Citing the case of NNPC V. IDONIBOYE-OBU (SUPRA), counsel submitted no court will impose a servant on an unwilling master.

Defendant’s counsel cited the case of COLLEGE OF MEDICINE V. ADEGBITE (1973) 5 SC P.149 to support his position that where an employee alleges wrongful termination of his appointment, the onus of proof rests on the employee who so alleges. It is therefore the position of the defendant’s counsel that the claimants had not shown by any scintilla of evidence in whatever way or manner in which their appointments were wrongfully or unlawfully terminated as to entitle them to any relief or remedy being claimed in their action before this Court.

In conclusion counsel urged this court to disregard and dismiss the Claimants’ action in its entirety on the ground that the claimants’ suit is essentially unmeritorious.

I have carefully considered all the processes filed in this case. I have also given adequate thoughts to the arguments canvassed in this case as well as statutory and judicial authorities to which the attention of this Honourable  Court have been drawn. I will at this juncture proceed to determine the substance of the instant suit. In determining this suit I will adopt, the two (2) issues formulated for determination by the claimant’s counsel in the written address filed on behalf of the claimant.

ISSUE 1.

Whether the termination of the Claimants’ employment on the ground that their services “were no longer required” is not a nullity as it is a violation of the Human Resources Policies and Procedures of the Defendant.

The total summary of the position of the claimants and argument of their counsel in respect of this issue is that the decision of the defendant to terminate their employments on the ground that their services is no longer required was not in tandem with the laid down rules and procedures and a violation of the Human Resources Policies and Procedures of the defendant. The defendant hold a contrary position and has prayed this Court to dismiss all the argument canvassed by the Claimants and their counsel in this regard.

To determine this I have carefully read through the averments of the parties. I have also painstakingly perused the witnesses’ statements on oath as well as the documents tendered in support of the case of parties to this suit.

Before I proceed, it is important for me to mention that the issue of whether or not the employment of the claimants are statutorily flavoured was strenuously argued by both parties to this case. I therefore consider it pertinent to resolve that issue before I delve into the substance of issue 1 I adopted above.

An employment is said to be statutorily flavoured when such employment is protected by statute or laid down regulation made to govern the procedure for employment and discipline of an employee. See the case of CBN v. MRS. AGNES M. IGWILLO (2007) LPELR 835 SC. Central Bank of Nigeria is a creation of statute and its operations are regulated by the Act that establishes it i.e. Central Bank Act 2007.  As argued by the claimants’ counsel, S. 14 (4) of the said Central Bank Act provides that “appointment of employees of the Bank shall only be in respect of positions created  by the Bank and on such terms and conditions as may be laid down by the Board”.

A careful reading of the above provisions of the Central Bank Act 2007 and the provisions in the HRPPM put beyond any doubt that the employment of the Claimants is one that is statutorily flavoured and I so hold.

Now to the issue of whether or not the termination of the employment of the claimants on the ground that their services “were no longer required” is a nullity. The documents I considered in my humble view to be of utmost relevance to the resolution of this issue are the letters of claimants’ appointments and letters of termination of their employments. These are Exhibits CW1C-CW1C1 i.e. Letter of Provisional Offer of Appointment of the 1st Claimant dated 26th September 2011, CW2B1- CW2B2 i. e.  Letter of Provisional Offer of Appointment of the 2nd Claimant dated December 28, 2009; CW3B1-CW3B2 i.e. Letter of Provisional Offer of Appointment of the 3rd Claimant dated December 28, 2009; CW1K i.e. Letter of Termination of the 1st Claimant’s appointment dated February 10, 2015; CW3E i.e. Letter of Termination of 2nd Claimant’s appointment dated February 10, 2015; CW3G i.e. Letter of termination of 3rd Claimant’s appointment dated February 10, 2015.

My position above is premised on the trite law that “in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties”. See the Supreme Court case of AJI V. C.B.D.A. (2015) 16 NWLR PT. 1486 P. 554 @ 574 PARAGRAPHS G-H  RATIO 3.

I shall take the liberty to recap the relevant part of the content of EXHs. CW1C-CW1C1 and CW1KE, which read thus:

EXH. CW1C-CW1C1:

PROVISIONAL OFFER OF APPOINTMENT

“You or the Bank may terminate the appointment upon the giving of three (3) months’ notice or three (3) months’ salary in-lieu of notice, except in the case of dismissal for misconduct, wherein a notice or salary in-lieu thereof will not apply. Your service shall be governed by the Bank’s regulations in force from time to time”.

EXH. CW1KE:

TERMINATION OF APPOINTMENT

“I am directed to inform you that your services are no longer required by the Bank. In the circumstance, your appointment with the Bank is hereby TERMINATED with immediate effect.

In line with your contract of employment, a Central Bank of Nigeria internal voucher No. 00349434 dated February 10, 2015 for the sum of N369,585.41 (Three hundred and Sixty Nine thousand, Five Hundred and Eighty five Naira, Forty One Kobo) being three months’ salary in lieu of notice is attached herewith.

Your final entitlement from or indebtedness to the Bank, if any, is being determined and will be communicated to you in due course.”

The above are also the contents of the letters of appointment and termination of the 2nd and 3rd claimants.

The above is part of the content of the letter with which the claimants were appointed and with which their employments were terminated. I have carefully read this letter viz-a-viz the claims of the claimants that the defendant failed to adopt due process in taking its decision against them. I disagree with the claimants and their counsel in this respect. My disagreement is premised on the decision of the Supreme Court in the case of FRIDAY U. ABALOGU v. S.P.D.C. NIG. LTD (2017) 10 ACELR where it was held that “clauses contained in an employment contract which constitutes the full terms and conditions of the contract of employment between the parties would be construed strictly by the Court”.

Flowing from the above, I am of the view that due process of the law was observed in deciding the fate of the claimants. The claimants’ position that the defendant’s action was unlawful is unfounded.

It is in view of all of the above that I resolve the first issue distilled for determination above against the claimants and I so hold.

 

ISSUE 2.

Whether the Claimants are not entitled to be reinstated into the Services of the defendant and their outstanding salaries and allowances paid to them their employment having been unlawfully terminated.

It is clear that at the nerve center of the grievance of the claimants in this suit is that their employment were unlawfully terminated without due regard to the provisions of the HRPPM, amongst other things.

In resolving the 2nd issue for determination, I consider it apposite to mention that this court’s decision can only be premised on facts, evidence and arguments before it. The crux of the case of the claimants is that their dismissal from service did not follow due process.

At this juncture it is important for me to mention that it has been established in a plethora of judicial authorities that in all civil cases, the plaintiff should rely on the strength of his case. Sections 135, 136 and 137 (1) of the Evidence Act, CAP E14 of the Laws of the Federation, 2004 which provide that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of any fact which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said the burden lies on that person. I refer to the case of AKANDE V. ADISA (2012) 15 NWLR PT. 1324 P. 538 @P.548 RATIO 4 to buttress my position.

In the case of AJI v. CBDA (SUPRA) P. 558 @ 571 RATIO 2 P. 571 PARAGRAPHS G-H & P. 572 PARAGRAPHS D-E, it was held that “whether and employee is suing for a wrongful dismissal from an employment with statutory flavor or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be pleaded but must be proved by evidence before a determination of the wrongful nature of his termination or dismissal can be considered by the Court”.

In the instant case, it is the duty of the claimants to place before this court sufficient evidence to prove that their dismissal from service by the defendant did not follow due process of the law. In my view, the claimants have not been able to place before this court cogent, sufficient and convincing evidence to show that their dismissal from the defendant Bank did not follow due process of the law and I so hold.

I have carefully considered the facts of this case viz-a-viz the evidence and argument put forward by the claimants and their counsel in this case and I am not convinced that the claimants have discharged the onus of proof expected of them by law. I am not satisfied that the claimants have proved their case against the claimant to entitle them to the claims sought in the suit. In view of the above, the 2nd issue for determination is also resolved against the claimants.

The claimants having failed to prove their case against the defendants are therefore not entitled to the reliefs sought in their claim and I so hold.

It is important to mention that the letters of termination of the appointments of all the claimants captioned above clearly stated what benefits and allowances the claimants would be entitled to in the event of the termination of their employment. That is all that is expected of the defendant by law. This position was aptly captured by court in the case of GABRIELATVIE v. KABEL METAL NIG. LTD (2016) 9 ACELR SC that “an employee is only entitled to the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end as they are the losses reasonable foreseeable by the parties at the time of entering into the contract of employment, these court cannot award general damages or order a decree of his reinstatement”.

The position of the Supreme Court in the above cited case is instructive in respect of the instant case and I so hold.

In all, the action of the Claimants is unmeritorious and same is hereby dismissed

Before I conclude this judgment, it is important to mention that since the claimants’ employments were only terminated and not that they were dismissed from service, the claimants are entitled to three months’ salary in lieu of notice, in line with the letters of offer of appointment of the claimants. I therefore order the defendant to pay each of the claimants three months’ salary in lieu of notice, if it has not been paid. The defendant is further ordered to pay the claimants all outstanding allowances and entitlements due to the claimants, in accordance with the defendant’s terms and conditions of service. The claimants are also ordered to pay to the defendant any outstanding indebtedness they may owe the defendant.

I make no order as to cost.

Judgment is entered accordingly.

…………..………………………………………………………………

 Hon. Justice B. A. Adejumo, OFR

President,

National Industrial Court of Nigeria

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