IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE P. A. BASSI
DATE: MONDAY 11th JUNE 2018
SUIT NO: NICN/LA/388/2017
BETWEEN
AZEEZ LAWAL
CLAIMANT
AND
KEYSTONE BANK LIMITED
DEFENDANT
Representation
Gbenga Ojo……………for the Claimant
Samuel Oyadoyin…..…for the Defendant
JUDGEMENT
The claimant commenced this suit by way of a complaint filed on 14th of August 2017 together with the accompanying originating processes. The claimant’s claims as endorsed on the general form of complaint and statement of facts dated 14th August 2017 are for the following reliefs against the Defendant:
- A declaration that the Claimant’s employment with the
Defendant was wrongfully terminated. - An order directing the Defendant to pay the Claimant the sum of N776, 838.36 (seven hundred and seventy six thousand, eight hundred and thirty eight naira, thirty six kobo) being the outstanding sum payable to him as his entitlement on exit from the Defendant Bank.
iii. The sum of N5, 000, 000.00 (Five Million Naira) as general
damages to the Claimant for the psychological trauma and
emotional pain which the action of the Defendant caused him.
In reply, the Defendant filed a Statement of Defence and accompanying documents on 5th of October 2017 but deemed properly filed and served on the 7th of November 2017
The Claimant testified for himself as Claimant’s Witness (CW). He adopted his statement on oath dated 14th August 2017 and 11 documents were tendered through the witness and were admitted into evidence as exhibits and marked as ‘Exhibits C1 to C11’ without prejudice to the rights of the parties to address the court on the admissibility and evidential value of the exhibits in their respective final Addresses:
Mr. Julius Oyedeji, Head Human Capital Management of the Defendant Bank testified for the Defendant as Defendant’s Witness (DW). He tendered no exhibits into evidence. He was cross examined by claimant counsel and discharged. The defendant then closed its case.
In compliance with the Rules of Court, Final Written Addresses were ordered to be filed and were adopted by the respective parties on the 21st of March 2018 and the matter adjourned for judgment.
CASE OF THE CLAIMANT
It was the case of the claimant that he was employed by Bank PHB as a Relationship Officer on Senior Executive Assistant Level. That Bank PHB got another Management and changed its name to Keystone Bank Limited sometime in 2011.Following the change of Management, it was the claimant’s story that he was offered another employment on the grade level of Senior Executive Trainee vide a letter dated the 5th of August 2011. That he was a Branch Manager in the Defendant’s Lokoja Branch.
Claimant further contends that he proceeded on his annual leave of 22 working days on the 17th of April 2017, to resume on the 17th of May 2017. And that while he was working with the Defendant Bank, he was undergoing a PhD degree at the University of Ilorin, Kwara State but this did not affect his work in anyway. Continuing, claimant testified that while he was on leave and was at the University of Ilorin preparing for the defence of his PhD Thesis, he received a telephone call from his line supervisor, a Joy Ugwu, on the 23rd of April 2017 asking him to report at his office in Lokoja on the 24th of April 2017.
That on getting to the office on the 26th, the said Joy Ugwu informed him that his appointment with the Defendant had been terminated with immediate effect and showed him the letter of termination. She however said she was not authorized to hand him the letter until he had written a letter of resignation and a letter of appeal requesting the Bank to convert the termination of my employment to resignation.
Claimant further testified that he initially refused to write the letters but was informed by Joy Ugwu that his terminal benefits and all his entitlements will not be paid until he wrote the letters. That he was forced to write the letters on the spot by hand and thereafter, the letter of termination was handed over to him. That it was a ploy by the defendant to coerce him to write a letter of resignation and a letter of appeal was to make it look as if his appointment was terminated, he appealed that the termination be converted to resignation which was granted, after which he wrote the letter of resignation.
Claimant avers further that he handed over his office and the Defendant’s properties in his possession to one Usman Omachoko, in the presence of Joy Ugwu, vide a handover note dated the 26th of April 2017. That he waited for about two weeks without receiving his total entitlements from the Defendant and consequently wrote an email to the Defendant complaining that he had not received his total entitlements.
That the Defendant replied, informing him that the sum of N138,580.84 (one hundred and thirty-eight thousand, five hundred and eighty-naira, eighty-four kobo) was paid into his Keystone Bank account number 1000229455 and gave a breakdown of the money that was paid into his account. Claimant contends that the payment made to him is less than what he is entitled to. That he is entitled to:
- a)Salary for April 2017 – N260,146.12
- b)1month’s basic salary in lieu of notice – N260,146.12
- c)Pro-rated quarterly payment for second quarter of 2017 – N98,816.67
- d)Leave Allowance – N194,826.55
- e)50% of Leave Allowance for recall – N97,413.28
That came up to a total of N911,348.74 and when the sum of N134,510.38 already paid to him is deducted, the total due to him is N776,838.36. (seven hundred and seventy-six thousand, eight hundred and thirty-eight-naira, thirty-six kobo). He then prayed the court to grant his reliefs.
CASE OF THE DEFENDANT
Julius Oyedeji who testified as Defendant’s Witness(DW), testified that he is the Head Human Capital Management Services of Keystone Bank Ltd and the Claimant was the Defendant’s employee between 18th November 2011 and April 24th, 2017 when his Employment was terminated by the Defendant due to his consistent poor performance. That the Claimant was a Branch Manager and tasked with the running of the Defendant’s branch located at Lokoja who decided to register for a PhD Programme without informing the Defendant of his enrolment for the PhD programme.
Defendant’s Witness (DW) contended that by not informing the Defendant that he would be undergoing a PhD programme during the continuance of his employment, the Claimant had breached his Contract of Employment. That the PhD programme entailed the Claimant conducting a lot of research which prevented him from dedicating full time and attention to the Defendant’s work. That the nature and schedule of duty of the Claimant as branch manager required undivided attention and did not permit him to pursue any degree and at the same time retain his employment.
According to Defendant’s Witness (DW), the Claimant’s performance was appraised, and he was found to have performed woefully as stated in the Defendant’s letter dated April 24, 2017. He further testified that the termination of the Claimant’s employment was as a result of his unsatisfactory performance and was the prerogative of the bank’s management.
He contended that Joy Ugwu being also an employee of the Defendant did not and could not have advised or induced the Claimant to write a letter of appeal as it was not within her power. He averred that the Defendant did not in any way compel the Claimant to tender a resignation letter and that the Defendant never induced nor influence the Claimant to write a letter of appeal which was written after the claimant had received and read the letter of termination of employment. Continuing, Defendant’s Witness (DW) testified that the letter of appeal and the Claimant’s letter seeking the conversion of the termination of his appointment to resignation were written voluntarily and without duress or undue influence from the Defendants management or employee(s).
That the termination of the Claimant’s employment was strictly as a result of his unsatisfactory performance and in line with his contract of employment. And upon the termination of his employment, the Claimant’s account was credited with the sum of N140, 451.02 (One hundred and forty thousand-naira, two kobo) on April 26, 2017 in lieu of notice. That however the Claimant’s letters received the defendant management’s consideration and the termination of his employment was converted to resignation on compassionate grounds. That following the acceptance of the Claimant’s resignation, the amount paid in lieu of his earlier termination was reversed on April 28, 2017 in line with the Banks policy
That the Claimant’s total entitlement at exit was the sum of N332,883.79 (Three Hundred and Thirty-Two Thousand, Eight Hundred and Eighty-Three Naira. Seventy-Nine Kobo) and after deducting his statutory remittances of N59, 792.57 (Fifty-Nine Thousand, Seven Hundred and Ninety-Two Naira. Fifty-Seven Kobo) (Comprising of NHF pension and PAYE) the balance of N273,091.21 (Two Hundred and Seventy-Three Thousand and Ninety-One Naira. 21 Kobo) was on April 28, 2017 credited to the Claimants account with number 1000229455
Furthermore, that as the Claimant’s letter of resignation was to take effect on 24th April 2017 which was the same day that the Claimant tendered same, the Claimant’s April 2017 salary was pro-rated and credited to his account in line with the terms of his employment.
DW then prayed the court to dismiss the case of the claimant.
DEFENDANT’S FINAL ADDRESS
To the defendant, it is not in dispute that the Claimant’s employment was terminated or that he wrote a letter of appeal for the conversion of the termination to a resignation. That it
is also not in dispute that the Claimant was allowed to tender a resignation letter and all these letters were tendered and admitted in evidence. In his opinion, what the Claimant needed to prove but failed to, was his allegation that he was coerced to write a letter of
resignation. Accordingly, Counsel submitted that the issue for determination is:
“Whether the Claimant was coerced to write a letter of resignation”
Counsel submitted that the case put up by the Claimant points unmistakably to an allegation of impropriety and the burden of proof of which is on the Claimant. He referred to Section 135(2) Evidence Act and the case of Babatunde v. Bank of the North Ltd. (2011) 18 NWLR (pt. 1279) p. 738 at 762 paras. D-F.
That the burden of proof on the Claimant is made heavier in the peculiar circumstances of this case. It is not in dispute that the Claimant resigned his employment when he was a bank manager. He stated under cross-examination that he is a Masters Degree holder. The Claimant also stated in his Written Statement on Oath that he was a PhD student. By the Claimant’s testimony, while he was on leave, he was asked to come all the way to Lokoja from Ilorin (about 6 hours’ drive); and under cross-examination, the Claimant stated that Joy Ugwu herself had come to Lokoja all the way from Minna, Niger state for the same purpose, only for him to be asked to tender a resignation letter or have his employment terminated without receiving a letter terminating the said employment.
That in the circumstances of this case, there must be a presumption against the Claimant’s contention that his line supervisor told him that his terminal benefits and all his entitlements would not be paid until he wrote the letters of appeal and resignation. Counsel relied on Section 167 (c) of the Evidence Act, 2011 which provides:
“167. The Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public
and private business, in their relation to the facts of the
particular case, and in particular the court may presume-
(a) ……
(b)…….
(c) That common course of business has been followed in
particular cases”
He then submitted that in the common course of business, a bank manager of full age and discretion like the Claimant does not sign or write a letter of appeal for the conversion of the termination of his employment to resignation when he has not read the letter terminating the said employment.
Counsel further submitted that the procedure for the termination of the contract of employment as evident in the terms of employment is one month notice or one month pay in lieu of
notice. That is if the Claimant’s employment had been terminated via a letter of termination which falls short of the one-month notice requirement, the Claimant would be entitled to one-month salary, and subject to the terms of his employment, other accruable benefits.
In the Defendant counsel’s opinion, the Claimant was badly shaken under cross examination and he (the Claimant) stated that he did not believe that he needed to receive the letter of termination of his employment before same could be validly
terminated. That it was difficult to believe that the Claimant that on the actual date that he went to Lokoja branch and wrote his letter of appeal and letter of resignation was 26th April 2017. However, the said letters are dated 24th April 2017. That quite significantly, the Claimant claims that he had seen the letter of termination of employment before Joy Ugwu said “she is not
authorized to hand him the letter until he had written a letter of
resignation, and a letter of appeal requesting the bank to convert the termination of his employment to resignation.”
Counsel further opined that throughout the length and breadth of the Claimant’s case, there is not the slightest shred of evidence explaining these fatal contradictions.
Additionally, that the Claimant admitted under cross-examination that the terms of his employment did not make provision for an oral termination of same. That the claimant was asked to endorse a copy of the letter of termination and that he did, in fact, endorse the same.
Counsel then submitted that in matters regarding whether a party has discharged his onus of proof, especially in a civil case, the competing evidence of both or all parties must be put on an imaginary scale, to see which one outweighs the other. He referred to Mogaji v. Odofin (1978) 4 SC 91 and further submitted that in
finding out which set of evidence outweighs the other or others, the court must have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive;
(e) Whether it is more probable than that given by the other party or parties.
That the court is supposed to first consider the evidence led by the Claimant and see whether the evidence is enough for the Defendant’s answer to be considered at all. And If, as Defendant counsel contends like in the instant case, the Claimant’s evidence is not enough, the action of the Claimant fails at this stage, without the necessity of the court considering any defence the defendant might have. Counsel relied on Sanusi v. Amoyegun (1992) 4 NWLR (Pt. 237) 527 SC.
He argued the termination of the Claimant’s employment was
strictly a prerogative of the defendant’s management and the Claimant’s supervisor, Joy Ugwu being also an employee of the Defendant Company did not and could not have advised or induced the Claimant to write a letter of appeal. Accordingly, he submitted that the Defendant did not in any way compel the Claimant to tender a resignation letter. The Defendants never induced nor influenced the claimant to write a letter of appeal. That the letters were voluntarily written by the Claimant after he had received and read the letter of termination of employment. Furthermore, counsel submitted that the Claimant’s letter of appeal received the defendant’s management consideration and the termination of his employment was converted to resignation strictly on compassionate grounds.
That the Claimant’s total entitlement at exit was the sum of N332, 883.79 (Three Hundred and thirty two thousand, eight hundred and eighty three naira, seventy nine kobo) and after deducting his statutory remittances of N59, 792.57 (Fifty nine thousand, seven hundred and ninety two naira, fifty seven kobo) comprising NHF, pension and PAYE, the balance of N273, 091.21 (Two hundred and seventy three thousand, ninety one naira and twenty one kobo) was on April, 28, 2017 credited to the Claimant’s account with number 1000229455. Counsel argued that the foregoing was the crux of the testimony of DW 1, whose evidence was not punctured even under the fire of cross-examination.
Counsel finally prayed the court to dismiss the Claimant’s case with substantial cost.
CLAIMANT’S FINAL ADDRESS
Learned counsel for the Claimant that the following issues arise for the court’s Lordship’s determination:
- Whether the Claimant’s appointment was not wrongfully terminated.
- Whether the Claimant was paid all his entitlements and terminal benefits.
In arguing issue 1, Claimant counsel submitted referred to the case of The Court of Appeal held in the case of NDLEA v. Zakari (2015) 7 NWLR (Pt. 1458) 361 at 376, para F-G and submitted that in the instant case, the claimant tendered Exhibit C2, which is his letter of appointment with the defendant and Exhibit C11 which is the Human Capital Policies and Procedures Manual of the defendant, which are the documents that govern his contract of employment with the defendant therefore satisfying the condition of laying before the court the Terms of his Employment. He further submitted that these terms as contained in Exhibit 4 were not adhered to before the claimant’s contract was terminated.
Counsel submitted that it was clear in the claimant’s pleadings and evidence that the claimant was coerced into writing those letters. Counsel queried:
- How the Divisional Head, Joy Ugwu, who conducted the events of the termination of the claimant’s employment communicate to the Head Office that the claimant wrote a letter of appeal.
- How many days did it take for the defendant’s management to consider the appeal?
iii. How the Head office communicated approval of the appeal to the claimant or Joy Ugwu?
Counsel then referred to HCP 106 of the Human Capital Policies and Procedures (HCP) Manual of the defendant which was tendered as Exhibit C11. Specifically, he referred to Paragraph 6.7.4 and 6.9 and submitted that the said paragraphs outline the defendant’s procedure for considering appeals from employees whose employment has been terminated. That the letter of termination, Exhibit C6, letter of appeal, Exhibit C5 and the letter of resignation, Exhibit C4 were all dated the same date, the 24th of April 2017. Therefore in counsel’s opinion, the procedure for considering appeals could not have been conducted and concluded on the same day which then lends credence to his assertion that the claimant was coerced to write the letters. He submitted that the defendant made the claimant write these letters as a form of “insurance” or to have a form of leverage if the claimant decides to contest the manner in which his appointment was terminated.
Counsel argued that the position of the law is that an employer can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided that the terms of the contract of service between them are complied with. He referred to that case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599-658 and Opuo v. NNPC (2001) 14 NWLR (Pt.734) 552 and submitted that the claimant is not contesting the exercise of this power by the defendant. Only that the terms of the contract have not been complied with particularly with respect to his entitlements.
That the defendant had stated that the claimant’s contract of employment was terminated due to poor performance but had failed to either plead facts to that effect nor tender evidence to prove it. That where the employer gives a reason; the burden rests on him to establish that reason. Counsel relied on the case of UBA Plc v.Oranuba (2014) 2 NWLR (Pt.1390) 1 at 21, para C-E He therefore submitted that the contract of employment of the claimant was wrongfully terminated and urged the court to so hold.
On issue 2, Claimant counsel referred the court to Exhibit C11, particularly Section 106, paragraph 6.9, and contended that Exhibit C2 is the superseding document that governs the claimant’s contract with the defendant and that it particularly stated that one month’s payment shall be made by either party who is terminating the contract without notice.
In addition, he submitted that the claimant was recalled from leave and by the provisions of Section 102 of the Human Capital Policies and Procedures (HCP) Manual particularly paragraph 3.0 which states that:
“Normally staff should not be recalled from leave… An employee so recalled shall be paid an additional 50% of his current leave allowance whenever he is allowed to proceed on the remaining leave period for which he was recalled…
He therefore submitted that the claimant was entitled to the following:
- Salary for April 2017 – N260,146.12
- 1month’s salary in lieu of notice – N260,146.12
iii. Pro-rated quarterly payment for second quarter of 2017 – N98,816.67
- Leave Allowance – N194,826.55
- 50% of Leave Allowance for recall – N97,413.28
Total – N911,348.74
Amount paid – N134,510.38
Total Amount due – N776.838.36
He therefore submit that the claimant was not paid his full entitlement on the termination of his employment, and urged the court to so hold and order the defendant to pay the claimant the sum of N776.838.36 (Seven Hundred and Seventy-Six Thousand, Eight Hundred and Thirty-Eight Naira, Thirty-Six Kobo) which is outstanding as the claimant had proved his case which entitles the court to grant him all the reliefs claimed.
COURT’S DECISION
I have read all the submissions of counsel and the processes filed in this matter. I have evaluated the oral and documentary evidence as presented by both sides. In determining the rights of the parties in this suit, the court would adopt the issues for determination as formulated by the Claimant which is;
“Whether the Claimant’s Appointment was not wrongfully terminated”
In resolving this issue, I would refer to and be guided by the Court of Appeal decision in the case of PROF THEOPHILUS ADELODUN OKIN & ANOR vs MRS AGNES IYEBA OKIN (2016) LPELR-41165 CA where the court held;
“By the settled principle of law stemming from sections 131 and 132 of the Evidence Act 2011, a party who makes allegations in a pleading, has a legal obligation to produce evidence to substantiate them as part of his case. It is not sufficient for such a party to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading, although he may lean on any favorable evidence of the opposing party to strengthen his case. This is based on the legal stand that cases are won on the strength of credible evidence adduced by a party who asserts the position of a fact and/or claims the existence of those facts. See E.D. Tsokwa & Sons Company Ltd Vs Union Bank of Nigeria Ltd (1996) 10 NWLR (PT 478) 281, Orakwe & Anor Vs Obiora Chukwu &18 ors (2012),All FWLR (Pt 672) 1677”
I also find the decision cited by the claimant of The Court of Appeal in the case of NDLEA v. Zakari (2015) 7 NWLR (Pt. 1458) 361 at 376, para F-G apt. The Court held:
“An employee who complains that his appointment was wrongfully terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer who is a defendant to an action brought by the employee to prove any such breach”.
The first claim in this suit is for a declaration that the Claimant’s employment with the Defendant was wrongfully terminated. Where a party alleges that his employment has been wrongfully terminated, he is obliged to place before the court, the terms of his employment and adduce evidence as to how these terms were breached. See the case of GURAMA L. DEKOM V. JUDICIAL SERVICE COMMISSION, PLATEAU STATE (2010) LPELR-4031(CA) PER NDUKWE ANYANWU, J.C.A where His Lordship held;
“A servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful. Okumu Oil Palm Co. Ltd Vs. Iserbienrhien (2001) 6 NWLR Pt. 710 Pg 660. Idoniboye-Obu Vs. NNPC (2003) 2 NWLR Pt. 805 Pg 589. In the case of Okoebor Vs. Police Council (2003) 12 NWLR Pt.834 Pg 444, the Court held inter alia – ‘When an employee complains that his employment has been unlawfully terminated, or that he was unlawfully dismissed, he has the burden not only to place before the Court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer.” (Pp. 11-12, paras. F-B)”
Pursuant to the forgoing decision and in support of this claim for wrongful termination, the claimant tendered into evidence and relied upon exhibit C2 which is the letter of employment and which shows the terms agreed by the parties. On page 3 of exhibit C2 is the subhead “SEVERANCE” which provides thus;
“Either party shall determine this contract by giving one (1) month notice or payment for the same period in lieu of Notice”
Furthermore, Exhibit 11 which is the Human Capital Policy Manual on page 50 also has clause 6.9 titled “TERMINATION”. Under that clause, it is provided that an employee whose services has been terminated would be entitled to accrued salary, benefits and one-month basic salary in lieu of Notice.
For the claimant to succeed under this head of claim, he is obliged to show a breach of these terms. Claimant placed reliance on Exhibits C4, C5 and C6 in a bid to show the wrongful termination. However, exhibit C 10 which is the claimant’s bank account statement must also be referred to in resolving this issue.
It is trite that civil matters are decided on the balance of probabilities. Reference here to the cases of Apatira & Ors Vs Lagos Island Local Government Council & ORS (2007) LPELR and Josef Vs Adole (2010) LPELR 4367 (Ca).
It was the claimant’s story that he was informed by his line supervisor Joy Ugwu that his appointment had been terminated but she was not authorised to hand over the letter of termination until he writes and submits a letter of Appeal to convert his termination to resignation and also submit a letter of resignation alongside. I fail to see the of what benefit the alleged withholding of the letter of termination would accrue to the defendant when exhibit C10 is considered.
Now from exhibit C10, the sum of N140,451.02 (One Hundred and Forty Thousand, Four Hundred and Fifty-One Naira, Two Kobo) was paid into the claimant’s account on the 26th of April 2017 with the description “Bulk upload in lieu of Notice”. It was the defendant’s story that that was the one-month basic salary in lieu of Notice paid to the Claimant pursuant to the termination of his employment by exhibit C6. It was also the defendant’s story that pursuant to Exhibits C4 and C5 which are the letter of appeal for conversion of termination to resignation and the letter of resignation, the defendant approved the said conversion of the termination to resignation and thereafter, made a reversal of the payment made in lieu of Notice on the 28th of April 2018. On the face of exhibit C10, on the 28th of April 2017, there is a debit of the amount of N140.451.02 with the description “bulk upload revsl of in lieu of Notice”.
To this court, the payment and subsequent reversal of the payment in lieu of notice to the claimant which was unchallenged is deemed admitted. Reference to the cases of UNION BANK OF NIGERIA PLC VS IKECHUKWU ONUORAH & ORS (2007) LPELR 11845 (CA), ANKA VS LOKOJA (2001) 4 NWLR (PT702) 178 @182, NV SCHEEP VS MV ARAZ (2000) 15 NWLR (PT 691) 622 @ 634 on facts not controverted are deemed admitted.
It is therefore the finding of this court that the employment of the claimant was indeed terminated, and he was paid the one-month salary in lieu of notice pursuant to his termination and in accordance with his contract. It is also the finding of this court that the claimant made an appeal after he received his termination letter was received for it to be converted to resignation which was subsequently approved, and the payment of the one-month basic salary in lieu of notice paid into his bank account as agreed by the parties was reversed from his bank account. Exhibit C9 dated 10th May 2017 also shows under the type of separation to be “Resignation”. This further buttress the finding that the termination was converted to resignation.
In any event, this court finds that the defendant was acting within its rights in appraising the claimant’s performance in line with exhibit C11 which it found unsatisfactory due to the reasons associated with the unauthorised PhD programme of the claimant which in the opinion of the defendant affected his commitment and productivity at work. Having complied with the terms of exhibits C2 and C 11 regarding termination as seen in exhibit C10, I therefore find and hold that the claimant’s employment was not wrongfully terminated and this first head of claim for a declaration that the termination of his employment was wrongful fails and is hereby dismissed. I so hold.
Coming to the second claim which is for a total sum of N776.838.36 broken down thus;
- Salary for April 2017 – N260,146.12
- 1 month’s salary in lieu of notice – N260,146.12
iii. Pro-rated quarterly payment for second quarter of 2017 – N98,816.67
- Leave Allowance – N194,826.55
- 50% of Leave Allowance for recall – N97,413.28
Total – N911,348.74
Amount paid – N134,510.38
Total Amount due – N776.838.36
In determining monetary claims as this one, the court has to evaluate the evidence on the basis of proof of entitlement and the quantum thereof. See the case of MOHAMMED DUNGUS & ORS VS ENL CONSORTIUM (2015) NNLR PT 208, PG 39 where Kanyip, J held that;
“Now the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer”
The court went further to rule that;
“The issues before the Court are essentially two: whether the claimants can be said to have proved their claims; and for them to do so, they must show an entitlement to each of the claims. Secondly, whether the defendant has equally proved its counterclaim against the claimants”
Using the test as enunciated in Dungus (supra), the court would examine each claim vis-à-vis the proof of entitlement and the quantum.
For the first claim which is for salary for April 2017, having held that the claimant resigned his appointment, the provisions of Exhibit C11 on resignation would apply. C11 provides in Clause 8.1 on page 82 that;
“confirmed employee members of staff who wish to resign from the bank must give one or three months’ notice as agreed in contract letter in writing or pay one/three months basic salary in lieu of notice to the bank. ………”
The claimant resigned on the 24th of April 2017. The defendant claims it paid the claimant his pro-rated salary for April 2017. The defendant paid in the sum of N273,091.21 (Two Hundred and Seventy-Three Thousand and Ninety-One Naira, Twenty-One Kobo) as the claimant’s total entitlement on the 28th of April 2018. Exhibit C10 shows that a payment of N273,091. 21 (Two Hundred and Seventy-Three Thousand and Ninety-One Naira, Twenty-One Kobo) was made to the claimant. The description says its “bulk upload earned allowances at exit”. Exhibit C9 provides a breakdown of the payment. It shows the monthly entitlements of the claimant, the earned payment pro-rated for 23 days as the claimant had resigned effective the 24th day of April and then pursuant to exhibit C11, the deductions which was indicated as unearned (unearned) were made. Exhibit C9 also showed the deductions made for NHF, Pension and Tax. The total deductions on the face of Exhibit C9 totalled N134,510.38 (One Hundred and Thirty-Four Thousand, Five Hundred and Ten Naira, Thirty-Eight Kobo) and this was the same account that was reversed on the 28th of April 2018 after the payment of N273,091.21 (Two Hundred and Seventy-Three Thousand and Ninety-One Naira, Twenty-One Kobo) representing the total entitlements before deduction. The breakdown of this figure as shown in Exhibit C9 shows it is inclusive of monthly salary and the allowances paid monthly. The Contract between the parties said the defendant is entitled to deduct all indebtedness of the claimant before making final payment upon exit. However, the claimant has failed to challenge successfully the computation by the defendant. I am satisfied on the balance of probabilities that Exhibit C9 presents a true reflection of the final exit entitlements of the claimant inclusive of the pro-rated April 2017 salary as the computation shows it was for 23 days. This is the exact number of days the claimant worked for in the month of April 2017. The very first item on Exhibit C9 is “basic” and was pro-rated for 23 days. I therefore find that the head of claim for April 2017 salary in the sum of N260,146.12 (Two Hundred and Sixty Thousand, One Hundred and Forty-Six Naira, Twelve Kobo) is unmeritorious and is dismissed accordingly.
As regards the head of claim for Leave Allowance, the claimant averred that he is due the sum of– N194,826.55 (One Hundred and Ninety-Four Thousand, Eight Hundred and Twenty-Six Naira, Fifty-Five Kobo) as leave allowance. Evidence has been led that claimant had proceeded on leave before his exit. On the face of exhibit C10, there was a payment into the claimant’s account of N194,826.55 (One Hundred and Ninety-Four Thousand, Eight Hundred and Twenty-Six Naira, Fifty-Five Kobo) with the description “Bulk upload 2017 Leave Allowance” on the 5th of April 2017. Exhibit C10 also showed the claimant withdrawing the entire sum paid the very next day which is the 6th of April 2017. So what leave allowance is the claimant suing for? Exhibit C10 was tendered into evidence by the claimant and there are no challenges to its authenticity or correctness of its entries. This court has no option but to find that the head of claim for Leave Allowance in the sum of N194,826.55 (One Hundred and Ninety-Four Thousand, Eight Hundred and Twenty-Six Naira, Fifty-Five Kobo) fails and it is dismissed accordingly.
The head of claim for 50% of leave allowance for recall from leave in the sum of N97,413.28 (Ninety-Seven Thousand, Four Hundred and Thirteen Naira, Twenty-Eight Kobo) must also fail as there is nothing before the court to show that the claimant was recalled to resume work. Both sides agree that the claimant was asked to report at the Lokoja office of the Defendant and on the very day he reported, his appointment was terminated. In this court’s opinion, the context within which an employee becomes entitled to the 50% of leave allowance would be when the employee resumes work with his leave cut short by the employer. There is nothing placed before this court to show that the claimant reported for work or was asked to resume. The events of the 24th of April 2017 are well chronicled, and I find no basis for this head of claim and it is also dismissed accordingly.
For the claim relating to the pro-rated quarterly payments for the 2nd quarter of 2017, the questions to ask would be “what is the quarterly payment? What is the basis for the pro-rated payment? Pro-rated for how long? If the claimant could not present his case with clarity, this court is neither a calculator nor given to speculation? See the case of CHIEF IFEDAYO IWAYEMI & ANOR V. SNR. AP. AKINYOOYE AKINBO (2016) LPELR-40136(CA) Per OWOADE, J.C.A.;
‘The reason for this is that law is not a game of wizardry. It is not and has never been the function of a Court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence to work out the mathematics of arriving at an answer in a case which only evidence tested under cross examination can supply. See: Okoya & 2 Ors. V. Santilli & 2 Ors. (1993 – 1994) ALL NLR 404, Agip (Nigeria) Ltd. & 8 Ors. V. Chief C. Ezendu & 9 Ors. (2010) 1 SC (Pt.11) 98, Olalomi Industries Ltd. V. Nigerian Industrial Development Bank Ltd. (2009) 7 SC 94, Rapheal Eiezie & Anr. V. Christopher Anuwu & 3 Ors. (2008) 4 SCNJ 113, Yakeen Alabi Odonigi V. Aileru Oyeleke (2001) 4 SCM 127, Kraus Thomson Organization Limited V. University of Calabar (2004) 4 SCM 83 and Messrs MISR (Nig.) Ltd. V. Mallam Yesufu Ibrahim (1974) 5 SC 47.?Moreover, “a trial is not an investigation and investigation is not the function of a Court————-“See: Duruminiya V. Commissioner of Police (1962) N.N.L.R. 70 at 73 – 74.” (Pp. 22-23, Paras. B-A)
A simple statement to say “this is the quarterly payments due to me normally and this is the figure pro-rated for X days or months” would have sufficed. In failing to establish both the entitlement and the quantum, this head of claim must fail too and is dismissed accordingly. I so hold.
On the whole I find that the claimant’s case fails in its entirety and is dismissed accordingly.
I make no order as to costs.
Judgment is entered accordingly
Hon. Justice Paul Ahmed Bassi
Judge
