BELLO DAUDA MUHAMMED -VS- UNION BANK OF NIGERIA PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: THURSDAY 30^TH JANUARY, 2020 – SUIT NO: NICN/KN/48/2017

BETWEEN

BELLO DAUDA MUHAMMED…. ……………………………….CLAIMANT

AND

UNION BANK OF NIGERIA PLC ……………………………………….RESPONDENT

REPRESENTATION: Claimant Present. Defendant absent.

Abdullahi Ibrahim for the Claimant

A.A Dabo for the Defendant.

JUDGMENT

The claimant commenced this action by the complaint filed on the 31^st October 2017 in which he claims the following:

A Declaration that the claimant and the Respondent are bound by the terms and conditions of their contract of service referred in the Claimant’s letter of appointment which both parties signed prior to the resumption of duty by the Claimant.
A Declaration that the Claimant’s employment can only be terminated in accordance with the terms and conditions of the said contract of service (referred in the Claimant’s letter of appointment).
A Declaration that based on paragraph 3 of the terms and conditions of the contract of service, the Claimant’s employment can only be terminated if and only if the Claimant is found guilty of any breach of the said terms and conditions of the contract of service between them (the Claimant and the Respondent) or of any misconduct or incompetent to perform the duties of his office or unable to pay his debts when they fall due.
A Declaration that if the Defendant is no longer desirous of continuing with Claimant’s service, it can only determine the employer/employee relationship by serving him with Exit Notice as provided for under paragraph 7 of the terms and conditions of the contract of service between the parties, not Notice of Termination.
A Declaration that determining the Claimant’s employment by Notice of termination instead of Exit Notice without the Claimant being alleged to have been found guilty of any misconduct or incompetent to perform the duties of his office or unable to pay his debts when they fall due or of breaching/violating any of the provisions of the said terms and conditions regulating the contract of service between them (the Claimant and the Defendant) is in clear violation/breach of the said terms and conditions regulating the contract between the parties most particularly paragraph 7.
A Declaration that determining the Claimant’s employment by Notice of termination rather that Exit Notice was wrongful, invalid null and void with no effect whatsoever having been done in contravention of the said terms and conditions regulating the contract between the parties.
A Declaration that the Claimant has a valid and subsisting employment contract with the Respondent;
An Order compelling the Respondent to pay the Claimant his unpaid salaries and all other entitlements commencing from the month of (September, 2017) to date of judgment.
An order for the immediate payment of the Claimant’s severance allowances and all other benefits;
General damages in the sum ofN5,000,000 (Five Million Naira Only).
Exemplary damages in the sum ofN5,000,000 (Five Million Naira Only).
Cost of this action in the sum ofN1,500,000,00 (One Million Five Hundred Thousand Naira Only).

THE CASE OF THE CLAIMANT

It is the case of the Claimant that he was employed by exhibit D his letter of employment with the Defendant dated the 25^th of August 2014. That his employment was confirmed by the Defendant’s letter dated 24^th August 2015, and as part of the conditions contained in exhibit D, he was required to sign a formal contract of employment upon accepting the offer of employment.

He maintained that upon acceptance of the appointment with the Defendant, he was required to sign a formal contract of Employment before resumption of duty which he accordingly signed in exhibit B which he tendered, and exhibit DA as tendered by the Defendant. The claimant maintains that he made a copy of the said formal contract of Employment before filling and signing the copy he submitted to the Defendant. After these, he was posted to the Defendant’s Kano Bello Road Branch where he remained dutifully discharging his duties with sincerity and to the best of his abilities. That while serving with the Defendant, sometime in September, 2017 he was served with exhibit C a notice/letter of termination of appointment dated 7^th September, 2017.

That letter reads:

“Bello Dauda Mohammed (5428645)

C/o Union Bank of Nigeria Plc

Internal Control Department

Lagos.

LETTER OF TERMINATION OF APPOINTMENT

In line with your contract of service your contract with the Bank is hereby terminated with effect from September 8, 2017. Your account will be credited with one month’s basic salary, being payment in lieu of notice.

Please be advised that benefits due to you and from which outstanding liabilities are to be deducted will be credited to your account shortly. You are required to submit all Banks property in your custody including your identity card to your line Manager.

Please acknowledge receipt

Yours sincerely

For Union Bank of Nigeria Plc

Kunle Onobote MIYEN SWOMEN

Head HR Shared Services Head Human Resources”

The claimant maintained further that based on paragraph 3 of the Formal Contract of Employment most particularly, which he signed with the Defendant his appointment could only be terminated in case of any of the following circumstances

e) If found guilty of any misconduct.
e) If he breaches any terms and conditions of his contract of service with the Defendant.
g) If he is found incompetent while performing his duties as an officer of the Defendant
h) If he is unable to pay his debts when it falls due.

He also averred that by paragraph 7 of the said formal Contract of Employment, which he signed with the Defendant, either party had the right as to when to bring the contract to an end, any one being at liberty to do so by serving the other party with exit notice containing one month notice or one month salary in lieu of such notice. He stated that he was purportedly terminated in line with paragraph 3 of the Respondent’s condition of service which step suggests that he was found guilty of one of the conditions set out in paragraph 3 of its conditions of service, namely, that he was found guilty of any misconduct, that he had violated any of the terms and conditions of his contract of service, and had been found incompetent in the performance of his duties as an officer of the Defendant or was unable to pay his debts with it fell due. That the Defendant’s act/suggestion in the foregoing paragraph would adversely affect his career in the Banking Industry. That he was never found guilty of any of the above, being in the Banking Industry, a circle where news easily and quickly spreads and in that circle recommendation and record of previous work is more important that skill and qualifications.

That no bank will be willing to employ him if they know that, as exhibit C suggests, that he was found guilty of any misconduct, and had violated any of the terms and conditions of his contract of service, and had been incompetent in performance of his duty and had been unable to pay his debts when it fell due. That the Defendant’s action would ruin his career in his chosen industry if same is allowed to stand. That the termination of his appointment is a violation of the terms and conditions of service between him and the Respondent and he had suffered incalculable psychological and financial damages as a result of the Defendant’s action.

THE CASE OF THE DEFENDANT

The Defendant maintained in denying the claims of the claimant that it was a contract of service agreement that the claimant signed, not a contract of employment. The Defendant however admitted that it served the claimant with exhibit C the letter of termination dated 7^th September, 2017 and it added the claimant’s indebtedness Breakdown sheet which it tendered as exhibit DB2. The Defendant went on to maintain that nowhere in the entire content of paragraph 7 of the said executed contract of service agreement that the notice to be given is called “exit notice” or must be titled as such. That the claimant’s appointment was terminated squarely in line with clause 7 of the said executed contract of service agreement in exhibit B. That from the entire content of the said contract of service agreement the appointment of the claimant with the respondent can be determined in two ways, to wit: either under clause 3 or clause 7 of the said agreement.

The Defendant stated further that after issuing the said letter of termination of appointment to the claimant, it credited him with one month’s basic salary in lieu of notice through his Bank account No:00421994 with the respondent in the sum of N70,856.12 (Seventy Thousand Eight Hundred and Fifty Six Naira, Twelve Kobo) only on the same 8^th September, 2017 while other earned entitlements such as the 13^th Month Christmas bonus was paid earlier for which the Defendant tendered exhibit DB the claimant’s statement of account. That apart from the payments it had made to the claimant, Claimant was not entitled to any other entitlement or benefit. That it is the claimant who is indebted to the Bank to the June of N1,434,799:47 (One Million Four Hundred and Thirty Four Thousand, Seven Hundred and Ninety Nine Naira, Forty Seven Kobo Only) as contained in exhibit DB2.

The Defendant denied the claim by the claimant that its action had adversely affected the claimant’s career in the banking industry it also denied that claimant had never been found guilty of any of the offences for which he had been terminated. The Defendant also maintained at paragraph 20 of its statement of defence that in terminating the appointment of the claimant it did not violate any of the conditions of service between the claimant and itself as embodied in the said contract of service agreement signed by both parties. That the claimant is not entitled to any of the entitlements, benefits and allowances he seeks in the instant suit.

THE CLAIMANTS REPLY TO THE STATEMENT OF THE DEFENCE.

In the reply the claimant insisted joining issues with the Defendant on the issue of the use of words; Termination and Exit Notice. That “the employment Agreement governing the relationship between the parties, termination is only contemplated in clause/paragraph 3. That under clause 7 “Exit Notice” is used, that either claimant or Defendant has the right to withdraw his or its service in determining the existing contract of employment between the parties by way of giving one month notice or one month salary in lieu of notice. That the heading of the clause is titled Exit Notice not termination.

That determining his appointment by way of termination of appointment was wrongful. That the sum of N70,856.12 (Seventy Thousand Eight Hundred and Fifty Six Naira, Twelve Kobo) credited to the claimant’s Bank Account is not up to his salary as prior to the purported termination of his appointment that he worked for the Respondent for 8 days that is from 1^st – 8^th day of September, 2017 which entitled him to the sum of N93.779.94 (Ninety Three Thousand Seven Hundred and Seventy Nine Naira, Ninety Four Kobo Only) which the Respondent owes him. And that his monthly salary after tax deduction is N351,674.79 (Three Hundred Fifty One Thousand Six Hundred and Seventy Four Naira, Seventy Nine Kobo Only). That if the sum of N70,856.12 (Seventy Thousand Eight Hundred and Fifty Naira Twelve Kobo) purportedly credited to the claimant’s Bank Account as one month salary in lieu of notice is subtracted from N93,779.94 (Ninety Three Thousand Eight Hundred and Fifty Naira Twelve Kobo) as his accrued salary for 8 days from 1^st – 8^th day of September, 2017, the Respondent is still owing the claimant the sum of N22,923.82 (Twenty Two Thousand Nine Hundred and Twenty Three Naira Eight Two Kobo) as outstanding accrued salary.

THE CROSS EXAMINATION OF WITNESSES.

In the cross examination of the claimant he told the court that he stopped working for the Defendant since the 8^th of September 2017 in that he did not render any service to them since that date as the Defendant had stopped him working he admitted being paid one month basic salary on the 8^th September 2017. He denied being indebted to the Defendant to the tune of N1,434,799.47k (One Million, four Hundred and Thirty Four Thousand, Seven Hundred and Ninety Nine Naira Forty Seven Kobo). He was asked whether exhibit C, the letter of termination stated the clause under which his appointment was terminated, and he answered: “yes under clause 3”. Claimant then read clause 3 and 7 from exhibit DA the contract of service. Asked whether he knew the difference between termination and dismissal he told the court that: “I will say they are the same? He was asked whether he had anything to show that his monthly salary was N351,674,79k he said he did.

In the cross examination of DWI Anthony Nsoro Nnamdi of the Defendant’s Human Resources Department, he admitted the word termination was not boldly written in exhibit B, the contract of service DWI was also made to read the clauses 3 and 7 the service contract. Under further cross examination on exhibit D, the clause 3 and 7 of the contract of service, DWI admitted that the claimant was not paid for 8 days and that it was written that one month salary in lieu of notice would be paid to the claimant. He told the court the claimant’s monthly salary was N70,000 (Seventy Thousand Naira). Asked how the sum was arrived at as monthly salary he said it was arrived at from the breakdown of the basic salary in exhibit B2.

THE WRITTEN ADDRESS OF THE PARTIES AND COURT’S DECISION

In the written address of the Defendant a lone issue was formulated for determination:

“Whether having regard to the totality of the evidence placed before the Honourable court by the parties, the claimant can be said to have established his claims on a balance of probabilities to warrant same be granted by the court.”

Which issue the Defendant answered in the negative submitting that from the totality of the claimant’s pleading before the court the onus lay on the claimant to prove the allegation of wrongful termination against the Defendant citing sections 131 (1), 132, 133 (1) of the Evidence Act and the cases of HERO V. SHERIFF (2016) ALL FWLR (pt.861) 1309 – 1369, paras B-C and JAJI VS OLOWORA (2016) ALL FWLR (pt.814) 42 at 52 – 53 paras G-A.

It was also stated for the claimant that the document which binds or regulates the relationship between an employee and employer is the service agreement or contract of service/employment. Relying on the case of NIG.CEMENT PLC VS. OBIDIKE (2017) ALL FWLR (pt.909) 158 LA and OKOMU OILPALM CO LTD VS ISERHIENRHIEN (2001) FWLR (pt 45) 670 at 683 pars D-G.

In response the Claimant had also formulated two issues for determination in his written address:

“Whether the Claimant has proved his claims based on balance of probability as required by law and thus is entitled to judgment.
“Whether the Defendant in law has any counter claim against the claimant to warrant the grant of the reliefs it sought at paragraph 22 of the statement of Defence.”

On issue one, being a direct response to the sole issue formulated for determination by the Defendant, it was submitted for the claimant that this being a civil matter bordering on employer and employee relationship which is determined on the preponderance of evidence and balance of probability citing TANARAWA (NIG) LTD V. ARZAI (2005) NWLR, (pt 919), pg 593@594 and PURIFICATION TECHNIQUES (NIG) LTD V. JUBRIL (2012) 18 NWLR, PT (1331)@146.

It was also stated further for the Claimant that where there is an agreement/contract of service governing the relationship between employer and employee and the employee alleges that his employment has been wrongful terminated he has the burden to discharge the following:

To plead and tender the Agreement/contract of service governing the relationship between him (employee) and his employer
To prove the manner in which the terms of contract of service were breached by the employer while terminating his appointment citing OKOMU OIL V. ISERHIERHEIN (Supra).

It was submitted that the claimant had successfully discharged the above burden of proof as required by law and reference was made to exhibit B, the service contract. Stating that the parties are bound by the terms and conditions embodied in the contract of employment.

Now, both parties have` relied rightly on the exhibit B, which the court also admitted through the Defendant as exhibit DA. Both clauses 3 and 7 relied on by both parties are herein reproduced clauses 3 headed, conduct:

“In the event of your being found guilty of any breach of the provisions of this agreement or of misconduct of any kind (whether during or out of office hours), of which the Bank shall be the sole judge, or being found by the Bank to be incompetent to fulfil the duties of your office or in the event of your being unable to pay your debts as they fall due, or in the event of your undertaking any financial obligation (other than those relating to your personal or household expenses) without the prior authority of the Bank, it shall be lawful for the Bank to determine this agreement at any time without notice, in which case you shall only be entitled to salary accrued due up to the date of such dismissal or termination.

You shall not derive any benefit in the course of your official duties which might have the effect of placing you in such position that your personal interests and your duty to the Bank or to any customer of the bank could be in conflict, and you shall refrain from taking any course of action which might place you in such a position.”

Clause 7 headed, Exit Notice After confirmation

“Notwithstanding anything herein contained either the Bank or you may determine this agreement at any time giving to the other party, one calendar month’s notice in writing or one month’s salary in lieu of such notice.”

Now, both parties have submitted vigorously on the applicability of the two clauses referred to above it is immediately clear to me after a re-reading of exhibit C, particularly recalling the heading: termination of Appointment, and the Fust sentence: in line with your contract of service your appointment with the Bank is hereby terminated with effect from September 8^th, 2017.

I find straight away and in agreement with the Defendant’s submissions it is clause 7 from the contract of service that the Defendant followed in terminating the appointment of the claimant. It is as simple and straight forward as that, and I do so hold.

The contention of the claimant that he should have been terminated by Exit Notice therefore becomes of no relevance at all. The Claimant had argued at paragraph 4.12 of his written address that going by clause 7 of exhibit only an Exit Notice is expected from either of the parties when one is desirous of determining the relationship not termination or dismissal letter having regard to the import of clause 3 of exhibit B referring to paragraph 12-14 of his witness statement on oath.

The Defendant on the other hand had argued to the contrary at paragraph 3-5 of its written address that: “in his attempt to show that the termination of his appointment from the defendants service is wrongful, the claimant made a loud cry that the appointment was terminated under clause 3 of exhibit B instead of clause 7 of the same exhibit as the letter terminating his appointment was titled “letter of termination of Appointment” instead of Exit notice” and that act suggests he was found guilty of one of the conditions set out in paragraph 3 of exhibit B. My lord, with due respect, that is the lame argument of the claimant… even though the letter of termination of appointment served on the claimant by the Defendant….did not state under which clause the appointment of the claimant was determined, it states clearly that the claimants account will be credited with one month’s basic salary, being payment in lieu of notice… even the claimant admitted under cross examination that he was paid some monies by the Defendant on the 8^th day of September, 2017 and the said money was a month basic salary… that being the case, it goes without saying that the appointment of the claimant was determined under clause 7 of the contract of service that is exhibit B…”

I must reiterate the point that here that I am persuaded by the argument and submissions of the Defendant. More so on this point, I hold that the exhibits C and B speak for themselves and no other slant of meaning and interpretation can be given by the claimant other than what the Defendant has contended and what this court has held the said exhibits to mean.

I find and do hold further that the claimant has under a misapprehension of the terms used often in labour legalese that was on display when he could not explain the distinction between a mere termination of appointment as in his present case and a dismissal which is not his case, when cross examined on the point.

As for the avoidance of any doubt in labour law a dismissal is more akin to what clause 3 as driving at in its content while clause 7 broadly hints at termination. And the heading of clause 7 with the words exit notice after confirmation I hold cannot be forced on the Defendant. I hold that it means the same in effect as a termination which would be done with giving the other party a calendar month’s notice or one month’s salary in lieu. I have looked through the claimant’s claim and the Defendants evidence in rebuttal and I find and do hold further that the claimant is not guilty of any of the offences contained in clause 3 of the contract of service. I hold that the letter of termination in exhibit C did not say so, so also have the Defendants not said so. The claimant had claimed amongst others that his employment is still subsisting in the 7^th head of claim. On this I hold straight away that the legal and evidential point to be noted here is that it is in evidence that the claimant’s employment/appointment with the Defendant had come to an end since 8^th September, 2017. And it is trite law that a willing servant cannot be forced on an unwilling master. See TEXACO NIGERIA LPC V. ALFRED ADEGBILE KEHINDE (2001) 6 NWLR (PT.708) 224

On the whole as the sole issue formulated by the Defendant and the first issue formulated by the claimant I hold that the claimant has not proved his claims before this court and the claims are consequently dismissed.

On the second issue formulated by the claimant for determination regarding the Defendant’s contention of the claimant’s indebtedness to it in the sum of N1,434,799.47k I hold right away that such a case against the claimant did not arise as the Defendant did not counter claim against the claimant on this point as there is no counter claim in the Defendant’s pleadings:-

The only consequential order I shall make now, is that exhibit A, the ID lord of the claimant be return forthwith to the Defendant.

Judgment is entered accordingly.

There are no awards as to costs. Parties to bear their own costs.

_____________________________

HON. JUSTICE E. D. E. ISELE

JUDGE