CHIGBU VICTOR CHIKA -VS- RIVERS STATE MICRO FINANCE AGENCY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 19^th day of June, 2019 SUIT NO: NICN/PHC/118/2018

BETWEEN:

Chigbu Victor Chika .CLAIMANT

AND

Rivers State Micro-Finance Agency DEFENDANT

Representations:

Ben Uzozie with I.T. Nwafor and P.O. Chinda for the Claimant.

Amachree for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 19^th of October, 2018 along with a statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

Arising from the complaint and statement of fact, the Claimant claims against the Defendant as follows:

A declaration that the Dismissal of the claimant is wrongful and contrary to the Claimant’s contract of employment.
A declaration that as a confirmed staff, Claimant was the agent of the Defendant and cannot be terminated/dismissed without a fair hearing.
An order of Court directing the Defendant to pay over to the Claimant the sum of N2,200,000 (Two Million Two Hundred Thousand Naira) only, being and representing Claimant’s unpaid gross salary at the rate of One Hundred and Ten Thousand Naira only (N110,000.00) from January 2017 to August 2018.
Ten Million Naira N10,000,000.00) damages against the defendant for all the sufferings, inconveniences, mental agony, dehumanization with the legal and sundry expenses made by the Claimant to free himself from the malicious arrests and detention contrived by the Defendant and their police agents.
An order of court that upon termination/determination of the services of the Complainant he is entitled to the following:

(i), Accumulation of the deducted Salaries of the claimant used by the defendant to service its customers loan from January 2016 to December 2016 at N55,000.00, per month amounting to the sum of Six Hundred and Sixty Thousand Naira (N660,000.00)

(ii), Field allowances from 2014 to August 2018 for five years at the rate of N24,000,00 per month amounting to One Million Four Hundred and Forty Thousand Naira only (N1,440,000.00).

(iii) Leave Allowance at 20 percent of annual basic salary calculated at N24,000.00 multiplied by 5 years less N60,000.00 amounting to N1,140,000,00

(iv). Gratuity at the rate of one year basic salary multiplied by the number of years of service which amounting to the sum of Seven Million Three Hundred and Ninety-Two Thousand Naira only (N7,392, 000.00)

In reaction to the Claims, the Defendant on the 4^th of December, 2018 filed a statement of defence along with witness statements on oath, list of documents and copies of the listed documents.

Trial of the suit commenced on the 14^th of January, 2019 with the Claimant opening his case. The Claimant called two witnesses in support of his case, himself and one John Wokocha as CW1 and CW2 respectively. Both adopted their witness statements on oath which were marked as C1 and C2 respectively. Through CW1, 12 documents were tendered and admitted in evidence as C2 – C13.

Arising from the statement of fact and witness statements on oath, the case of the Claimant is that he was first employed by the Defendant on probation and later confirmed. He worked for the Defendant as a loan officer blamelessly for 6 years and his primary responsibility is to see that Corporative Societies are formed in accordance with the rules of the Agency and has never approved loan to any cooperative society or individual as same is the duty of the head office of the Defendant who usually send an officer to verify and certify the group or society that has met the required condition. He added that it was after such verification that loans were issued. He added that part of his job is also to draw debt from such groups. On that basis, the defendant would threaten him to use police to recover the loans or get sacked and consequently, the Defendant stopped paying his field allowance since 2014 and the Defendant went behind him to use police to recover the said loans. He added that in 2015 he was denied the opportunity to attend courses due to the loan that was not recovered. Claimant posited that about January 2016, he received a Memo from the defendant dated the 13^th January 2016 which was signed by the Head, Human Resources Manager (HR) Tamuno Diepiriye Abednego placing the claimant on a three months recovery suspension and with effect from January 2016, that 50% of the claimant salary shall be deducted monthly and his field allowance would be used to service the unpaid loans.

Later in August, the Defendant wrote a petition to the Divisional Police Officer, of the Nigeria Police Force Eberi. Omuma Rivers State, urging the police to arrest and prosecute the Corporatives leaders and members for the unpaid debt and non existent dud cheques which the defendant had started deducting from the claimant’s salaries and allowances.

Claimant further averred that he challenged the use of Police to recover debts and it angered the head of Recovery Unit. He then received several invitation by SMS on his phone to attend various meetings before he received a letter of summary dismissal. Claimant contended he was not given fair hearing prior to the dismissal and that the Defendant is liable to pay for his bills arising from the arrest by the police.

Upon cross examination of the Claimant as CW1, he admitted that in 2016 he took the Defendant to court and the case was concluded in 2018. He stated that he was not aware that the Defendant recalled all its staff at Omuma Local Government during the pendency of the suit. He admitted he is from Omuma Local Government. He confirmed that his role is to sensitize the people on the creation of Cooperative society while the Defendant verifies the cooperative society formed. He restated that his duty is to appraise and recommend cooperatives for loan and he can recover loan to an extent. He posited that in phase I of the loan scheme, he recovered 7.5 out of 8 million. He admitted that the management of the Defendant wrote letters to him several times and about N4million was outstanding as at the time he was dismissed. He posited he was last at the Head office in 2018. He posited that field allowance is his right and he is aware that management has stopped granting it since 2014. He stated that he does not have a work register. He posited that his supervisor is at the head office while he is at the Local Government and he is in charge of the Local Government.

On the part of CW2, he posited that he owed the Defendant N30,000 and he has paid through the police before he was released. He claimed the money was given as a cooperative group but he doesn’t know how much the group collected. He posited that he knows the Claimant as an agent of the cooperative and he is in court because the Claimant told him that the Defendant claimed not to have used the police to arrest them and he wants to tell the court that he was arrested for 4 days. He stated that he does not know the Claimant’s employment was terminated because he doesn’t work with him.

The Claimant closed his case upon the discharge of himself and CW2.

The defendant in opening their case called one witness in person of Otonye Mac-Barango as DW1 who adopted his witness statement on oath which was marked as D1. Through the said DW1, 18 documents were tendered in evidence and admitted as D2- D19 except for D19 that was admitted under protest.

Arising from the statement of defence and witness statement on oath, the case of the Defendant is that the Claimant was employed between February 22, 2012 and October 2018 to make 6 years and he was employed as loan officer with the responsibility to mobilise target groups to form cooperative. He was in charge of disbursing loan and also had the responsibility of recovering the loan but he was unable to recover the loans and avoided memos sent to him in that regard. The Defendant posited that they never used the Police or any uniform organization to recover debts from debtors or anyone. That the Defendant only wrote a petition to the Police on the 4^th of August 2016 appealing to the Police to investigate certain persons who issued dud cheques to them and it was in the process of the investigation that the Claimant was invited in relation to the members of the Cooperative which issued the dud cheques.

The Defendant posited that the payment of field allowance is paid at the pleasure of the Defendant and same had been stopped for all field staff. They added that the Claimant was aware of the meeting held on 22 November 2016 but he failed to attend in display of insubordination. It was after the meeting that he was queried the first time which he refused to pick up before the second query. The Defendant denied that the Claimant was ill as the Defendant has hospital facilities which the Claimant did not utilize. The Defendant further posited the Claimant was away from work for about 6 months and was still receiving salary and upon the Defendant realizing same, Claimant was issued query to which he answered that his supervisor was not reaching him. The Defendant posited that Claimant sued the Defendant at the State High Court and during that period, he did not attend work. The defendant also recalled all loan officers in the state to report to the Head office but the Claimant still refused to go to the Head office.

The Defendant posited that the Dismissal of the Claimant is lawful in view of the fact that Claimant absconded from work and he is not entitled to any leave allowance as same has been paid for 2015 which is the last time he worked. They added that having been dismissed, he is not entitled to any gratuity.

Upon cross examination of DW1, he posited that there are no clearly defined number of days for a defaulting staff to appear before the Disciplinary panel and 24 hours is adequate. He posited that documents emanating from the Defendant bears a logo but if it is internal memo, logo is not required. He stated that the power to dismiss a staff is vested in the MD. He posited that the salary of the Claimant was not stopped for nearly a year before he was issued query but there were deductions and the Defendant withheld part of his salary when they believe they had suffered loss. He posited that one month notice is not part of their contract in case of dismissal. He posited that Exhibit D3 has the job description of the Claimant and it is only when the Claimant fails to recover that the Recovery Unit of the Defendant steps in and same was set up in 2016 when loans were going bad. When asked whether there are guarantors for the loan given, he posited that the Defendant is not driven by profit. He posited that the Defendant communicate to staff with the use of notice boards, newsletter and not necessarily memo.

Upon the closing of the Defendant’s case, the matter was adjourned for adoption of final addresses.

The defendant filed their final address on the 2^nd of May, 2019 and arising therefrom, counsel to the Defendant, V. Amachree formulated two issues for determination to wit:

(i) Whether the Claimant is entitled to the services of the Legal Aid Council.

(ii) Whether the claimant has by preponderance of evidence proved his case to warrant this court’s favour.

Upon a consideration of the facts in issue, this court finds the first issue formulated to have no bearing on the facts in issue before this court and considers it a waste of precious judicial time to address same. Consequently, all the argument made in respect to issue one is discountenanced.

With regards to issue two, counsel contended that it is the law that the Claimant shall succeed on the strength of his case and not on the weakness of the Defendant’s case. Counsel cited the case of CDC NIGERIA LTD V. SCOA (NIG.) LTD. (2007)6 NWLR PT 1030 P.300 at P.314 RATIO 16 and submitted that the Claimant has failed to prove that he is entitled to all or any of the claims he made.

Counsel referred to testimonies of CW1 and CW2 and contended that the Claimant’s evidence is weak and no reasonable court will give judgment on such weak evidence. He cited the case of NEKA B.B.B. MFG CO. LTD V. A.C.B. LTD (2004) 4 NWLR PT (858) P.521 @ P.14 and ODI V. IYALA (2004)8 NWLR PT 875 P. 283 @ P.290 RATIO 5.Counsel urged the court to hold that the Claimant’s evidence is unreliable and is incapable of granting judgment in his favour.

Counsel further cited the case of MOMOH V. CBN (2007)14 NWLR PT. 1055 P. 504 @ P.509 RATIO 4 and contended that at page 37 of the Exhibit D18, in the column for abandonment/abscondment (Gross misconduct), dismissal is recommended for gross misconduct and the Defendant in its letter of dismissal Exhibit C11, stated that the Claimant is summarily dismissed for “abandonment/abscondment of duty”.

Counsel restated the meaning of Misconduct according to Black’s LAW DICTIONARY SIXTH EDITION (1990) P.999 and submitted that a dereliction from duty, unlawful behavior and improper or wrong behavior are all misconduct. He added that an employee who abandons or absconds from his duty post is irresponsible and his action is reprehensible and amounts to misconduct, therefore, the Defendant/Agency has the right and powers to dismiss such errant employee as same is recommended by the Agency’s hand book, Exhibit D18 at p37.

Counsel contended that the Claimant attended the meeting held on February, 2017 and failed to state what he meant by not been given fair hearing. Counsel posited that as in MOMOH V. CBN (SUPRA) the Claimant stated his case and was given opportunity to ask and answer questions.

Counsel also referred to the undertaking made by the Claimant via Exhibit C2 and submitted that abandonment/abscondment from duty is inimical to the interest of the Defendant and his dismissal is appropriate. He added that the Claimant cannot at this stage rescind the document he signed and cited the case of UGHUTEUBE V. SHONOWO (2006)16 NWLR PT 899 P. 300 @P.308 RATIO 10 (C).

He concluded by urging the court to dismiss the Claimant’s claim.

Reacting to the Defendant’s final written address, claimant filed his final written address on the 7^th of May, 2019 wherein the Counsel to the Claimant Ben Uzozie formulated three issues to wit:

1: WHETHER THE LEGAL AID COUNCIL OF NIGERIA IS COMPETENT TO PROVIDE LEGAL SERVICES TO THE DEFENDANT

2: WHETHER THE PURPORTED DEFENDANT’S REVISED HANDBOOK 2016 WAS BINDING ON THE CLAIMANT AS SUCH WAS NOT GIVEN TO HIM AT ANY POINT IN TIME MATERIAL TO THIS SUIT.

3: WHETHER THE CLAIMANT HAS PROVED HIS CASE TO BE ENTITLED TO THE RELIEFS SOUGHT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THIS CASE AND THE EVIDENCE BEFORE THE COURT.

Issue one is in relation to the first issue formulated and argued by counsel to the Defendant and same is accordingly discountenanced for the same reason earlier stated.

With regards to issue two, counsel contended that the defendant upon receiving the claimant’s suit quickly prepared a Hand Book and backdated it to 2016. He added that there are pieces of evidence flowing from the defendant’s testimony that the claimant signed for and acknowledged the receipt of certain Memos sent to him before and after 2016 and referred the court to exhibits D8, D9, D10, D11 a-f, D13,D14 and D15. Counsel urged the court to hold that the Claimant was never given the Handbook. He added that page 46 of the Handbook provided for employee’s acknowledgment and contended that there is no evidence before the court to suggest or prove that the Claimant was issued a Memo to come to the office to pick up the purported Revised Hand book. Counsel cited the case of YADIS MG LTD VS GNIC LTD (2007)ALL FWLR(PT 370)1348, Pg. 1370, Para A. SC and concluded on the issue by urging the court to take judicial notice of the fact that the said Handbook was not frontloaded.

With regards to issue three, counsel placed reliance on the case of U.T.C Nig Ltd. Vs. Peters (2009) LPELR-8426 (CA) and also referred the court to exhibit C2 being the Letter of Offer of Employment dated the 22/2/12 and exhibit C3 being the Letter of Confirmation of Employment dated 3/12/12.

Counsel contended that based on the Exhibit C2, Claimant was not given one month notice nor paid salary in lieu after the salary was stopped for over a year and deducted part of his salary. Counsel referred to Exhibit C13 and posited that no query was ever issued by the HOD of the Claimant and the procedure stated in paragraph 6(1.2) of Exhibit C13 was not followed as local remedies such as suspension were not exhausted before the Claimant was sent to the Disciplinary Panel and there is no suspension of the Claimant before he was dismissed.

Counsel added that exhibit D15 was a contravention of the right to fair hearing as the Claimant was not given adequate time to prepare for his defence having been issued to him a day before the hearing. Counsel contended that Exhibit D16 is a document of doubtful origin and as such the court cannot rely on it. Counsel contended that in the absence of the provision of who has the absolute power to dismiss a staff, it is questionable who recommended and approved the dismissal of the Claimant. Counsel cited the case of DUGHUM V ANDZENGE (2007)ALL FWLR(PT 385) 499 CA. on the attitude of the court towards documents of doubtful origin.

Counsel contended with regards to reliefs C, D & E that it is not controverted that the defendant has not paid the claimant the salaries he had worked for from January 2017 to August 2018 when he was laid off and the Defendant had no reason to hold on to the salary of the claimant as there is no provision in the handbook of 2011 and 2016 respectively authorizing the defendant to do so. He added that it is also not controverted that the Claimant’s salary was deducted and that the Defendant got the Police to arrest the Claimant for three days.

With regards to relief e(i), counsel contended that it was not shown in the letter of employment or handbook that the Defendant is empowered to deduct the Claimant salary to service unpaid loans.

With regards to relief e(iii), counsel contended that the computation of the allowance is done by Exhibits C2 and C3 and urged the court to resolve it in favour of Claimant.

With regards to relief e(iv), counsel posited that if the court holds that if the court holds that the claimant was wrongly dismissed, then the claimant is entitled to gratuity as calculated by section 7 of the Handbook 2011.

Counsel concluded by urging the court to resolve the claims in the affirmative and dismiss the case of the defendant with punitive cost.

By way of reply on point of law, counsel to the Defendant made further argument in relation to the competence of Legal Aid Council which is discountenanced.

The arguments on issue two formulated by counsel to the Claimant is not particularly a reply on point of law while with regards to issue three, counsel contended that the case of SLB CONSORTIUM LTD. VS NNPC cited by counsel to the Claimant is inapplicable.

Counsel urged the court to dismiss the claim of the Claimant.

In view of the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the lone issue for determination by this court is to wit:

“Whether having regards to the evidence before this court, the Claimant have proved his case and entitled to the reliefs sought”.

Before resolving the lone issue, I find it apposite to address the status of exhibit D19 which was admitted under protest. The said exhibit is the Defendant’s Revised Handbook, 2016 which was although not originally listed in the list of documents but was referred to in paragraph 11(v) of the Statement of defence and the Defendant indicated the desire to rely on same during trial. Parties were directed to address the ground of objection in the final written address. Counsel to the Claimant, rather than specifically state the ground of objection, formulated an issue in relation to the said exhibit seeking the determination of the court as to whether the exhibit “was binding on the Claimant as it was not given to him at a point in time material to this suit”.

Consequent upon the formulated issue and the failure to specifically state the ground of objection, it is safe to conclude that the objection on admissibility has been jettisoned by Counsel to the Claimant.

Consequently, the said exhibit D19 is hereby admitted in evidence.

I then turn to the sole issue which is directly relating to the claims of the Claimant. in resolving same, I must start by reckoning that the claims of the Claimant is hinged on his dismissal which he considers wrongful; the failure to pay his salaries and deduction of part of the salaries; failure to pay his leave allowance, field allowance and gratuity. The Claimant considers the dismissal to be in violation of his right to fair hearing while the denial of salaries and other benefits were considered to be contrary to the contract of employment. I find it appropriate to consider the issue of dismissal first before other entitlements claimed.

Having said that, I reckon the position of the law that where an employee complains of wrongful dismissal, such employee bears the burden to prove the wrongful dismissal particularly by placing the terms breached before the court. In the case of U.T.C. NIGERIA LTD. v. SAMUEL PETERS (2009) LPELR-8426(CA) the Court of Appeal held that:

“It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus- (i) To place before the trial court the terms of the contract of employment; (ii) To prove the manner in which the said terms were breached by the employer thereof. See GARUBA V. KIC LTD (2005) s aft e17) 160; JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.” Per SAULAWA, J.C.A (P. 41, paras. A-D)

In view of the foregoing authority, the Claimant tendered Exhibit C2 as his offer of employment dated the 22^nd of February, 2012 and Exhibit C3 which is the letter of confirmation of his employment dated the 3^rd December, 2012. The said documents settles the fact that the Claimant was employed by the Defendant. In relation to his dismissal, Claimant tendered Exhibit C11 which is the “Letter of Summary Dismissal”

Dated 15^th August, 2018.

The said letter of Summary Dismissal states that:

“This letter represents a formal notice of summary dismissal from the employment of the Rivers State Microfinance Agency effective immediately for abandonment/abscondment of duty.”

The Claimant upon receipt of the letter contended that he was not given any opportunity for fair hearing prior to the dismissal. Although he acknowledged that memos were issued to him inviting him for meetings one of which he did not attend due to ill health. Counsel to the Claimant in arguing the Claimant’s case contended that the paragraph on Termination in Exhibit C2 provides for one month notice or salary in lieu of notice.

Counsel added that the Claimant’s additional Condition of employment with the Defendant is Exhibit C13 which is the 2011 staff Handbook in view of the fact that the Defendant did not give the Claimant notification of the change to Exhibit C13 as required by paragraph 2 and 3 of Exhibit C3 (letter of confirmation of employment). Therefore, the 2016 revised Handbook (Exhibit D19) shall not apply to the Claimant in the absence of proof that the Claimant was notified of the change. He added that section 3(6) of Exhibit C13 was contravened in the termination of employment of the Claimant.

The Defendant on their part contended that the Claimant was issued several queries before he was invited to appear before a disciplinary committee which recommended his dismissal after hearing him. The Defendant tendered: Exhibit D8 internal memo and query inviting explanation from the Claimant as to why disciplinary actions should not be taken against him for being late/absent at the meeting held on 22/11/16; exhibit D9, another query dated 03/01/17 where Claimant was required to explain why he has not picked up the first memo and why he has not been attending meeting. Exhibit D10 was the response letter written by the Claimant dated the 8^th January, 2017. In reaction, the Defendant tendered exhibit D14 which is tagged as ‘warning’ to the Claimant. The Defendant on January 23^rd 2017 issued another query (Exhibit D12) to the Claimant stating that the Claimant had been largely incommunicado while being paid salaries and was required to give explanation within 48hours for his unauthorized absence and probable abscondment. The Claimant responded via Exhibit D13 dated the 26^th of January, 2017 wherein he exonerated himself. Notwithstanding the response, Exhibit D15 dated the 3^rd February, 2017 which is an invitation to Disciplinary Committee Sitting was issued to the Claimant following the Claimant’s response. The Defendant also tendered Exhibit D16 which is the ‘Report of the Disciplinary Committee on the Subject of Unauthorised Absenteeism’. The report did not bear a date but it was signed by 5 people with their names and designations stated, 3 of whom added 21/02/17 to their signature.

In view of the foregoing, I reckon that burden of proof in civil cases is discharged on a balance of probability and while the burden is originally on the party who would fail if no evidence is placed on either side, which is usually the Claimant, I also reckon the fact that the burden usually shifts and in the light of the evidence adduced by both parties, such is the situation in the instant case. The court in JOINT PROJECT DEVT COMPANY & ORS v. AKINLADE (2014) LPELR-22559(CA) held that:

“…First of all, it is a basic principle of law that – “he who asserts must prove” – see Famfa Oil Ltd. V. AG Fed. (2003) 9-10 SC 31. But it is also settled law that the burden of proof is not static in civil cases; it does have a way of shifting – see Zubairu V. Mohammed (2009) LPELR -51.24(CA) where Oredola, JCA, said – “By Section 137 (of the Evidence Act) the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. The onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party, and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on until all the issues in the pleadings have been dealt with. Thus, as firmly established, the standard of proof in civil cases – – is on the balance of probabilities or preponderance of evidence. Hence, where evidence adduced is loaded or tilted to one side and there is nothing forthcoming on the imaginary scale from the other side, the evidence proffered from the former will satisfy the requirement of proof”.” Per AUGIE, J.C.A. (Pp. 24-25, paras. E-E)

In the light of the foregoing, the Defendant has evidentially challenged the allegation of the Claimant that his dismissal was in violation of the right to fair hearing. The question to be asked is what exactly is fair hearing in the context of dismissal of the Claimant. The court in NJC & ORS. V. SENLONG & ORS. (2010) LPELR-4582(CA) posited in this regard that:

“All that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. Stated differently, to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. See Arinze v. First Bank of Nigeria Ltd. (2004) 12 NWLR (pt. 888) 663 at 675 – 676, 679; Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (pt. 457) 632; Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (pt. 404) 658; Olatubosun v. NISER (1988) 3 NWLR (pt.80) 25.” Per Peter-Odili, J.C.A. (Pp. 41-42, paras. G-C)

The fair hearing being an opportunity duly afforded to an employee, in the instant case, the Defendant through Exhibits D15 wherein the Claimant was given ample time to appear before the Committee and D16 which captured the report of the proceedings, disproves the allegation that the Claimant was denied fair hearing.

That said, I must consider the role of Exhibit C13 which is the staff hand book 2011 of the Defendant which the Claimant contends regulates the employment of the Claimant along with the letter of employment in terms of termination of the Claimant’s employment. But before determining the said role, I have to determine whether it is exhibit C13 or exhibit D19 which is the revised edition of Staff Handbook, 2016 that is applicable to the case of the Claimant.

In this regard, it should be reckoned that the staff hand book is regarded as a condition of service by the Defendant in view of the content of paragraph 2 of Exhibit C3 (letter of confirmation of employment) which states that:

“Your employment conditions will be regulated as provided in the condition of service contained in the RIMA staff handbook and other human resource policy statement”

The pivotal role of a condition of service, which is the staff handbook in the instant case, in the resolution of dispute between employer and employee has been duly considered in the case of JOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA), where the court stated that:

“It is also important to note that in any employer/employee dispute, it is the applicable conditions of service or any other stipulation incorporated or deemed to have been incorporated into it that must be referred to and applied in the resolution of the dispute. The conditions of service have been described as the bedrock of any contract of service. See KALE v. CBN (1999) 5 SCNJ 2.” Per GUMEL. J.C.A. (P. 9, paras. B-D).

To determine the applicable handbook between that of 2011 and 2016, I reckon the reference of counsel to the Claimant to the provision of paragraph 3 of Exhibit C3 (letter of confirmation of employment) which states that:

“You will be advised in writing of further changes to your conditions with RIMA should such become required from time to time.”

The effect of the forgoing statement made by the Defendant in 2012 is that if any changes will be made to the 2011 handbook, the Claimant will be notified in writing.

The Defendant have put forward the revised handbook (Exhibit D19), to which changes were made in 2016 and approved on 23^rd of January 2017. The question is whether the Claimant was notified in writing of such changes? Counsel to the Claimant contended that no such notice was given and that the Document was made in the course of this suit and backdated. The Defendant through paragraph 11(v) of their statement of defence posited that the Claimant was not aware of the Revised edition of the Handbook because of his perennial absence from duty but did not state that any notice was made to intimate either the Claimant specifically or every other staff in general of the revision of the Handbook.

In addition, I find that since the said revised Handbook was approved on 23^rd of January 2017, which was around the same time the Claimant was issued Queries before he was invited to appear before the Disciplinary Committee on 3^rd February 2017, the Defendant had the opportunity to bring to the notice of the Claimant that the condition of service guiding his employment i.e. the Staff Handbook had been revised. No such proof is before the court and same is in violation of paragraph 3 of Exhibit C3.

Consequently, this court finds and holds that the 2016 revised edition of the staff Handbook tendered by the Defendant as Exhibit D19 is not binding on the Claimant upon failure to bring same to his notice in writing.

In view of the foregoing, the dismissal of the Claimant is to be considered within the provision of Exhibit C2 (the letter of employment), C3 (letter of confirmation of employment) and C13 (Staff Handbook Revised Copy 2011).

Having said that, the question that arises is what provision of Exhibit C13 was breached in the dismissal of the Claimant to make the dismissal wrongful. The claimant did not himself state this. He only contended that he was not accorded fair hearing, a contention already resolved above. Counsel to the Claimant however contended that the Claimant was not issued notice nor paid in lieu of salary and that the procedure stated in Section 6(1.2) of Exhibit C13 was not complied with.

In view of the contention, I have taken a careful look at the said Staff Handbook Revised in 2011 and I find that the said section 3(6) provides that:

“Every staff reserves the right to terminate the contract of employment any time during the period probation by giving two weeks’ notice or two weeks’ notice basic pay in lieu. For confirmed staff, one month notice should be given or a month’s basic pay in lieu of notice.”

There is no gainsaying that the provision relates to when the parties intend to terminate the employment and is specifically referring to staff who intends to effect the termination of their employment. Hence, the said provision is inapplicable in the circumstance of the Claimant who was summarily dismissed.

With regards to section 6(1.2) which is headed ‘Disciplinary Procedure’, I find that same requires the Claimant to be served with a written query and if his reply is unsatisfactory, the Head of Department shall forward his reply to the Head of Human Resources who has discretion to examine the case and can query the Claimant. The HR can then warn the Claimant if he finds the answer unsatisfactory and in case of serious disciplinary action, the case is to be referred to the Disciplinary Committee. The Committee is to recommend to the Management who can vary or ratify the recommendation by virtue of Section 6(3).

The essence of the foregoing is that the dismissal of the Claimant ought to comply with the procedure stipulated as the court in U.T.C. NIGERIA LTD. v. SAMUEL PETERS (2009) LPELR-8426(CA) held that:

“At common law, in a master/servant relationship devoid of statutory flavour, an employer has the right to summarily dismiss an employee on grounds of misconduct or wilful disobedience. See: Osisanya v. Afribank (Nig.) Plc. (2007) 6 NWLR (1031) 565 @ 587 D – E: Nwobosi v. A.G.B. Ltd. (1995) 6 NWLR (404) 656; ({995) 7 SGNJ 92: D.A. (Nig.) AIEP Ltd. v. Oluwadare (2007) 7 NWLR (1033) 336 @ 365 E – F. However-where conditions of service exist between the employer and the employee the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. See: Edet v. Chief of Army Staff (1994) 2 NWLR (324) 41 @ 58 D – E; P.H.M.B. v. Ejitagha (2000) (Supra) @ 359 B-D.” Per KEKERE-EKUN, J.C.A (Pp. 18-19, paras. F-B)

In view of the forgoing, I find that the Claimant was queried by the HOD via exhibit D8, before being issued with a warning via exhibit D14 and then followed by a query from the Head, HR via Exhibit D12. The HR found his response unsatisfactory and invited him via Exhibit D15 to appear before the Disciplinary Committee who recommended via Exhibit D16 that he be dismissed.

Consequent upon the foregoing finding, I have no hesitation in holding that the procedure laid down in the Staff Handbook/Condition of Service binding between the Claimant and the Defendant was complied with in the dismissal of the Claimant.

It is consequent upon the forgoing holding that I determine the declaratory reliefs sought by the Claimant as they relate directly to the dismissal of the Claimant. The said reliefs reads:

A declaration that the Dismissal of the claimant is wrongful and contrary to the Claimant’s contract of employment.
A declaration that as a confirmed staff, Claimant was the agent of the Defendant and cannot be terminated/dismissed without a fair hearing.

The law is settled that a claimant who seeks declaratory relief has the burden to prove that he is entitled to same as the Court of Appeal in OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held thus:

”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E)

While I reckon that the Claimant presented evidence to prove that his dismissal was wrongful, I must state that on a balance of probability, the evidence adduced by the defence proves otherwise that he was not accorded fair hearing or that his dismissal was not in accordance with his terms of employment.

Consequently, the Claimant is not entitled to the two declarations sought and they are accordingly refused.

I then proceed to the reliefs relating to monetary claims which, apart from the general damages, falls under the realm of Special damages which should be specifically pleaded and proved. In that regard, the court in Egom v. Eno (2008) 11 NWLR (Pt.1098) held that:

“In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.” Per NGWUTA J.C.A. (P. 26-27, paras. E-A)

Having said that, I find it apposite to consider the claims relating to salaries first and they are considered in reverse order. First is relief e(i) which is an order that upon the termination of the Claimant’s employment, he is entitled to “Accumulation of the deducted Salaries of the claimant used by the defendant to service its customers loan from January 2016 to December 2016 at N55,000.00, per month amounting to the sum of Six Hundred and Sixty Thousand Naira (N660,000.00).

The highlight of facts relating to the Claim is that the Claimant contended that he was a loan officer of the Defendant with the responsibility of facilitating the setting up of Cooperative societies who would then qualify for loans from the Defendant after the Defendant approves same. He posited that his role is not to recover loans and he is not the one who approves the loan. Consequently, the Defendant granted loan to certain Cooperative societies in the Omuma Local Government where he operated as loan officer. The Cooperatives were not properly financing their loan as at when due and the Defendant after threatening the Claimant several times to recover the said loans eventually put the Claimant on three months Recovery Suspension and cut his salary by half on the basis that the withheld sum will be used to service the unpaid loan. He added that the Defendant had gone behind him to secretly recover the said loan and that amounted to double jeopardy.

In proof of the Claim, Claimant tendered exhibit C4 which comprises the loan agreement made between the Defendant and the Cooperative societies which led to the debt owed to the Defendant upon which the Claimant’s salaries was deducted and also a letter written to the Police in respect of dud cheques issued to the Defendants by the Debtors. The Claimant also tendered exhibit C5 which is the Memo issued to the Claimant by the Defendant informing him that upon the reevaluation of his performance after the expiration of three months period given to him to reduce the loan owed to the Defendant by the Cooperative societies by 50% and the finding that the outstanding sum is N4,739,911.09, he was placed on a three months recovery suspension immediately and with 50% monthly salary only. The said Memo is dated January 13, 2016. The claimant also tendered exhibit C12 which is dated May 10, 2016, a Memo following Exhibit C5. In the said Exhibit C12, the Claimant was informed that he was only able to recover N198,246.82 out of the 50% target of the N4,739,911.09 owed to the Defendant and due to that, the sum of N4, 586, 664.27 shall be converted to the Claimant’s account as personal loan with immediate effect and he shall be entitled to only 50% of his salary while the remaining 50% in addition to deductions earlier made shall be used to fund the Claimant’s account in writing off the personal loan.

The Defendant did not deny the foregoing, the Defendant considered it appropriate in view of the fact that the Claimant is a loan officer and has the responsibility to recover loan issued by the Defendant. The Defendant contended that the claims of the Claimant is laughable when by his action the sum of N4million naira and above cannot be accounted for thus depriving others from accessing loans.

The Defendant also tendered Exhibit D11(a-f) which are memos relating the several demands by the Defendant for the Claimant to make effort at recovering the loan. The memo dated back to June 26, 2013 when the outstanding was still at N1, 486, 364.25. It was perhaps the first time the Claimant was informed that failure to recover the outstanding may lead to a portion of his salary being withheld in proportion to his outstanding. The Claimant’s performance in recovering the outstanding did not improve from that 2013 till 2016 when his salary was eventually cut by 50%.

The Defendant, in view of the Claimant’s contention that his responsibility does not include recovery of loan, tendered exhibit D3 which is the job description note signed by the Claimant on 30/03/2012. Item 8 on the list included “Disbursement/recovery of credit to/RFI’s”.

The RFI according to exhibit D18 are the Cooperative societies created in the Omuma Local Government Area wherein the Claimant was a loan officer.

In view of the foregoing, it is not in doubt that the Defendant deducted the salaries of the Claimant due to his inability to recover debt owed to the Defendant by cooperative societies under the Claimant’s area of operation. It is also not in doubt that the Claimant has been an inefficient employee in discharging his responsibility as a loan officer. But the question before the court is not about the efficiency or otherwise of the Claimant. Rather, the question is whether the Defendant deducted the salaries of the Claimant and whether the deduction is in accordance with the terms of employment and condition of service.

While exhibit C2 which is the letter of employment of the Claimant clearly captures the monthly salary of the Claimant as N110,000, the said exhibit has no provision for the deduction of the said sum on ground of inefficiency to recover loan. The letter never provided for the conversion of loans owed by RFIs to personal loan of the Claimant. That is notwithstanding the fact that Exhibit D18 which is the Microfinance Operations Agreement (loan agreement) executed between the Defendant and the RFIs has nothing to do with the Claimant by way of privity of contract. If any of the terms of the Claimant’s employment empowers the Defendant to cut off his salaries and covert same to writing off a debt arising from an agreement he never executed, then the Defendant has the burden to prove same.

In determining whether the Defendant has discharged the burden of proof, I must state that I am not oblivious of exhibit D2 which is the undertaking signed by the Claimant. The undertaking reads:

“I Chigbu Victor C. hereby undertake that the Agency in addition to subjecting me through the Agency’s disciplinary process reserves the right and prerogative to undertake such acts as it may deem necessary in the event that the Agency discovers that I have conducted myself in any manner inimical to the interest of the Agency whether by acts of omission or commission or have in any way compromised myself as a loan officer in the discharge of my duty”

By way of construction, the said undertaking must be placed under the rule of contra proferentes in consideration of whether same avails the Defendant the power to carry out an expropriation on the Claimant’s salary. This is because the provision in the undertaking is punitive and must be given strict interpretation. Stating the rule in the case of NDOMA-EGBA V. CHUKWUOGOR & ORS. (2004) LPELR-1974(SC) the Supreme Court posited that:

”It is the law that in interpreting a statute which encroaches on a person’s proprietary right, the court’s attitude must be to adopt the principle of strict construction, fortissimo contra proferentes, which leans in favour of the citizen whose property rights are being denied; and against the interest of the lawmaker.” Per UWAIFO, J.S.C (P. 15, paras.A-B).

In consideration of the foregoing, I find that the undertaking cannot be a used as a general provision to deny the Claimant his salary or to convert the loan owed to the Defendant to a personal loan of the Claimant. Should it be found otherwise, it shall raise several questions including: i, what will happen when the Defendant eventually recover the loan from the original debtors? ii, if the Claimant uses his salary to pay for the loan, how would the Claimant recover his money (salary) from the Cooperative society with whom he has no binding loan agreement? iii, does the failure of the Claimant to recover loan from the Cooperative society mean that the Defendant who has a Recovery Unit, cannot by itself recover the loan without necessarily using the Claimant? iv, does the undertaking amount to a guarantee by the Claimant for the repayment of the loan owed to the Defendant?

Perhaps the Defendant did not put all of these questions into account when they took the decision of converting the cooperative society’s debt to the Claimant’s loan. I must state that if the terms where clear from the onset that upon failure to recover loans as loan officer, such loan would become a personal debt, there would have been no issue in enforcing same since it was made as a term agreed to by the Claimant. But in this regard, to hide such consequence under the guise of an undertaking is far from being a fair dealing. Consequently, exhibit D2 is considered not to be a ground entitling the Defendant to cut the Claimant’s salary by 50% and to convert same to a means of writing off debt owed to the Defendant by a third party and I so hold.

In view of the foregoing, I have no hesitation in granting the Claim made in relief e(i) to the effect that this court makes an order for the payment of the accumulated deducted Salaries of the claimant used by the defendant to service its customers loan from January 2016 to December 2016 at N55,000.00, per month amounting to the sum of Six Hundred and Sixty Thousand Naira (N660,000.00).

The second claim relating to salary is for “An order of Court directing the Defendant to pay over to the Claimant the sum of N2,200,000 (Two Million Two Hundred Thousand Naira) only, being and representing Claimant’s unpaid gross salary at the rate of One Hundred and Ten Thousand Naira only (N110,000.00) from January 2017 to August 2018.”

While there is the burden to prove the claim on the one hand, I must state on the other hand that the Pleadings of the Claimant does not present any fact relating to the failure of the Defendant to pay his full salaries for the stated period and the Defendant also did not make any direct assertion in relation to the payment of the salary. By way of address, counsel to Claimant contended that the Defendant did not controvert the fact that the Defendant has not paid the Claimant from January, 2017 to August 2018 when he was dismissed. Counsel added that DW1 admitted that they held back claimant’s salary to encourage him to work. Although same is a statement which is not part of the record of this court.

In view of the forgoing, the only evidence before the court in relation to salary of the Claimant is Exhibit C2 which states that the yearly remuneration package of the Claimant is N1,320,000.00 and by the attached salary scale is N110,000 per month. No other evidence is before the court to posit when last the Claimant was paid.

In reaction to the Claim for salaries, Defendant in paragraph 11(iii) contended that the Claimant is not entitled to any salary since he left his duty post for more than 20 months. The Defendant added that the Claimant sued the Defendant at the High Court of Rivers State and during the pendency of the suit and after he lost, he refused to report to work. The Defendant tendered exhibit D7 which is the CTC of the Judgment of the High Court of Rivers State delivered on the 18^th of July, 2018 on a suit between the Claimant and 4 Defendants with the Defendant in the instant suit being the 4^th.

In view of the forgoing, the defence put up by the Defendant suggest that the Claimant was not paid salaries for the stated period of 20 months spanning between January 2017 and August 2018. The evidence also shows that it was after the Claimant lost his suit at the High Court in July 2018 that he was dismissed in August 2018 before instituting this suit in October, 2018. Although I must state that the evidence placed before the court by the Claimant to assert that the Claimant has not been paid for the said months does not in itself suffice for preponderance of evidence, the doubt relating to non-payment however has been cleared by the admission of the Defendant.

In addition, I reckon that the Defendant is contending that the Claimant is not entitled to be paid the said salaries in view of his absence from work during the pendency of his suit against the Defendant which is the period for which the Claimant demands salaries. This is a claim in special damages in the sense that full particulars must be given by the Claimant as to his salary and how it accrued or became due to him for the period he is claiming. In Obot v Akpan (1998) 4 NWLR (Pt. 546) 409, it was held that special damages must be specifically pleaded and strictly proved.

In this regard, there is a preponderance of evidence that the Claimant was indeed not at work during the pendency of the said suit notwithstanding the fact that the Claimant was invited before a disciplinary Committee on the 3^rd of February, 2017. The preponderance is concretised in view of the period of the suit at the High Court (September, 2016 to July, 2018) and the fact that the Claimant had been recommended for dismissal since 21/2/2017. Preponderance of evidence was explained by the court in the case of OKORIE v. UNAKALAMBA & ANOR (2013) LPELR-22508(CA) where the court of Appeal held that:

“Preponderance of evidence is the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force, superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Per AJI, J.C.A. (Pp. 40-41, paras. G-D).

It is in the light of the finding that the Claimant was indeed absent from work for the said period of his claim that the claim for salaries is considered hereon. In this regard, there is no gainsaying that the consideration for work is wages (salary), and the consideration for wages (salary) is work. See Browning v. Crumlin Valley Collieries Ltd. (1964) All ER 936. According to Black’s Law Dictionary, tenth edition, at page 1537, Salary is “an agreed compensation for services”. The said dictionary also defines accrued salary to be a “salary that has been earned but not yet paid”. The Labour Act on its part adopts the word ‘wages’ instead of salary and defines wages thus:

“wages” means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.

In view of the foregoing meaning of wages (salary), it is clear that same is payable by an employer for work done and in view of the absence of the Claimant from work, he cannot be said to have performed a work which earns or entitles him to claim of salary for the said period of absence. Consequent upon the forgoing, relief ‘c’ as claimed by the Claimant fails and same is according refused.

I then turn to reliefs e (ii) and (iii) which are for:

(ii), Field allowances from 2014 to August 2018 for five years at the rate of N24,000,00 per month amounting to One Million Four Hundred and Forty Thousand Naira only (N1,440,000.00). and

(iii) Leave Allowance at 20 percent of annual basic salary calculated at N24,000.00 multiplied by 5 years less N60,000.00 amounting to N1,140,000,00

With regards to claim for field allowance, Claimant contended that same was used to service the unpaid loan given to cooperative societies. The Defendant in reaction contended that payment of field allowance was at the prerogative of the Defendant and the Claimant is not entitled to field allowance when he has not been working. The Defendant added that the allowance had been stopped since 2014.

In view of the contention, the Claimant did not present any piece of evidence to prove where his entitlement of field allowance accrues from and how he came about the sum of 24,000 per month and when same was last paid. Although exhibit C12 proves that the Defendant indeed notified the Claimant of the stoppage in payment of the field allowance on May 10, 2016, the Notice did not state that same was for writing off loan. Also, the stoppage did not occur in 2014 in view of exhibit C12, which is the period from which the Claimant makes his computation. Overall, the Claimant has failed to strictly prove that he is entitled to the computed claim for field allowance and the said claim must fail.

With regards to leave allowance, Claimant tendered Exhibit C2 which is letter of employment with the attached Salary Scale which puts leave allowance at 20% as other benefits which the Claimant is entitled to. Counsel to the Claimant contended that the Claimant’s leave allowance was not paid for 5 years and same is not controverted by the Defendant. The Defendant on their part contended that the last time the Claimant worked was 2015 and he has been paid leave allowance for that period. They added that the Claimant is not entitled to any outstanding leave allowance for the period he has not worked and he has been on perennial leave. The Defendant tendered Exhibit D4 which is a list of staff leave allowance for the month of May, 2015. The Claimant’s name is 14^th on the list and the sum of N20,000 was put across the name. The said exhibit controverts the claim that the Claimant is owed allowance for 5 years. Also, 20% of the annual basic salary which by Exhibit C2 is N1,320,000 does not amount to N24,000.

Consequently, the Claim for leave allowance in the sum of N1,140,000.00 is not proved in view of the totality of facts and evidence before the court, and the uncertainty as to how the Claimant arrived at the said sum. The claim is resolved in favour of the Defendant and same is accordingly refused.

The next claim is that of relief e (iv) which is for “Gratuity at the rate of one year basic salary multiplied by the number of years of service which amounts to the sum of Seven Million Three Hundred and Ninety-Two Thousand Naira only (N7,392, 000.00)”

Counsel to the Claimant with regards to this claim contended that if the Court holds that the Claimant was wrongly dismissed, the Claimant is entitled to gratuity as computed in section 7 of the Staff Handbook, 2011. The Defendant in reaction to the Claim contended that having dismissed the Claimant, he is not entitled to gratuity.

Arising from the foregoing contention, it is clear that the parties are aware of the implication of an employee being dismissed from employment. However, for sake of emphasis and clarity, a dismissal which is done in accordance with stipulated procedure and on viable ground of misconduct on the part of the employee generally carries with it the implication of loss of terminal benefits. The Supreme Court had long established the difference between termination and dismissal when it held in the case of Olatunbosun v. NISER Council (1988) NWLR (Pt.80) 25 that:

“Legally, both termination and dismissal all imply removal from a particular employment. The consequences may vary. Dismissal may entail loss of benefits while termination may not…” Per Oputa, J.S.C (P. 44, paras. C-G).

In view of the foregoing, I have paid particular attention to Exhibit C13 which is the Staff Handbook operating as a condition of service between the parties. Section seven provides for gratuity and stipulates to the effect that any staff who leaves the employment for reasons other than misconduct shall be entitled to gratuitous payment.

Without much ado, it is clear by now that the Claimant was dismissed on ground of abscondment/abandonment of duty which is needless to say amounts to misconduct. The said dismissal having been considered not to be wrongful in view of the procedure taken and the observance of fair hearing, the implication is that the Claimant loses the terminal benefit of gratuity. Consequently, the Claim for same fails and relief e(iv) is accordingly refused.

I then turn to relief d. which is for the sum of Ten Million Naira N10,000,000.00 damages against the defendant for all the sufferings, inconveniences, mental agony, dehumanization with the legal and sundry expenses made by the Claimant to free himself from the malicious arrests and detention contrived by the Defendant and their police agents.

With regards to the relief, I must posit that general damages unlike special damages need not be specifically proved as it suffices upon the findings that the applicant was wronged. The court in the case of SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS. (2008) LPELR-8462(CA) said of the nature of general damages that:

“General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Ndinwa vs. Igbinedion (2001) 5 NWLR (Pt. 705) 140 at 150; Osuji vs. Isiocha (1989) 3 NWLR (pt.111) 633; Odulaja vs. Haddad (1973) 11 SC 357; Omonuwa vs. Wahabi (1976) 4 SC 37; Lar vs. Stirbug Astaldi Ltd. (1977) 11 – 12 SC and ACME Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288.” Per OMOKRI, J.C.A. (P.28, Paras.E-A).

In view of the foregoing, the claim for general damages is hinged on the allegation by the Claimant that the Defendant paid the police the sum of one hundred thousand naira to arrest the Claimant and other leaders of the cooperatives for the reason that the Claimant was not willing to use police to recover debts owed to the Defendant. The Claimant tendered exhibit C4 dated 22^nd May, 2014 to posit that the Defendant used Police to recover loan. The Defendant in reaction to the allegation denied same and contended that the Police merely investigated the report of issuance of dud cheques by the Cooperative societies to the Defendant. Defendant tendered exhibit D6 dated 4^th August, 2016 being a letter addressed to the Divisional Police Officer of Omuma LGA and captioned “RE: ISSUANCE OF DUD CHEQUES, FORGERY, AND IMPERSONATION IN OMUMA LOCAL GOVERNMENT AREA”. The Defendant also tendered exhibit D7 which is a judgment of the High Court of Rivers State in a suit instituted by the Claimant to enforce his fundamental right arising from the arrest made by the police in relation to the petition written to the Police by the Defendant.

Upon evaluation of the foregoing exhibits, first, I find that Exhibit C4 tendered by the Claimant also bears the caption “RE: ISSUANCE OF DUD CHEQUE IN OMUMA LOCAL GOVERNMENT AREA” just as that tendered by the Defendant. Although the penultimate paragraph of the letter states to the effect that the Defendant sought the indulgence of the DPO for a collaborative effort in recovering their loans, the general body of the letter was largely a report as to how the issuance of the attached dud cheques came about. I also find that upon the writing of exhibit D6 to the Police and the subsequent activities in investigating the case of issuance of dud cheques, the Claimant’s suit was dismissed at the High Court in consideration of the fact that the Police were carrying out their lawful duty and have not breached the right of the Claimant. The said Judgment shows that the Claimant was invited to the Police station and he honoured the invitation and was granted bail on recognizance. The judgment posited that the Claimant was not detained hence no right was breached. The Judgment also noted that the Defendant merely performed a civic duty by petitioning the police over issues of dud cheques which is considered to be a crime and by so doing, the Defendant has not breached any fundamental right of the Claimant.

On the whole, the case of the Claimant which was in connection to his encounter with the police was found to be lacking in merit as no violation of his fundamental human right was established.

It is upon the said encounter and eventual suit that the Claimant is asking this court to award general damages for his lawyer’s bill, his medical bill and other stated bills.

The question that naturally arises in view of the foregoing is whether the Defendant violated the right of the Claimant by reporting the case of issuance of dud cheques to the Police as stated in exhibits C4 and D6. The answer to this is in the negative. I am much of the same position with the conclusion reached in exhibit D7 (judgment of the High Court) and consequent upon that, the Claimant should himself bear the cost expended as there is no proof of malicious prosecution.

Consequently, there is no basis upon which the Claimant is entitled to general damages. The Claimant, having adduced no evidence is not entitled to the reliefs sought.

Having addressed all the claims, it is safe to say that the sole issue formulated is partly resolved in favour of the Claimant and largely against the Claimant. This is in view of the fact that upon a careful consideration of the facts and evidence before this court, the Claimant only merits the claim in relief e(i).

The order made in respect of the said relief e(i) i.e. for the payment of the sum of N660,000.00 (six hundred and sixty thousand naira) being the deducted salaries for the months of January to December 2016 by the Defendant to the Claimant, is to be complied with within 30 days of the delivery of this judgment, failure of which the awarded sum will attract 10% interest per annum.

In the final analysis, I find the case of the Claimant to be meritorious only to the extent of the grant of relief e(i). The rest of the claims must fail for lacking in merit and they are accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.