Deacon Onwuatuegwu Uzoma -VS- Statesman Micro Finance Bank Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: JUSTICE I.S. GALADIMA

Date: 13th February, 2019. SUIT NO: NICN/OW/55/2016

BETWEEN

DEACON ONWUATUEGWU UZOMA CLAIMANT

AND

1.STATESMAN MICRO-FINANCE BANK

(formerly known as Uzuakoli Finance Bank)

ONUORAH MARTINS N. DEFENDANTS

(Managing Director Statesman

Microfinance Bank Uzuakoli)

REPRESENTATION:

K.O. Kalu for the Claimant.

Dr. C.O.Chijioke for the Defendants.

JUDGMENT

This action was filed by the Claimant on the 7^th of September, 2016 whereof these reliefs were sought through his Counsel as follows:

A declaration that the purported suspension and the false allegation against the Claimant that led to charge Nos. MOH/37C/2011 and MOH/30C/2012 by the Defendants and the outright refusal to pay the Claimant his arrears of salary, allowances and other entitlements and increments due to him upon demands are deliberate and calculated infraction of his (the Claimant’s) rights as an employee of the 1^st Defendant bank.
A declaration that the suspension of the Claimant “till further notice” as contained in a letter dated 27/06/2012 (sic) does not amount to termination of the employment of the Claimant.
An order compelling the Defendants to pay to the Claimant all his entitlements, that is to say:
The arrears of monthly salary at N25, 000 per month from August 2011 till 30/4/2014 amounting to N825,000 and from 1/5/2014 to the end of this case.
Medical allowance at N2,500 per month from August 2011 till 30/4/2014 amounting to N83,500.00 and from 1/5/2014 till the determination of this suit.

iii. The 13^th month salary at N25,000 from 2011 until 2013, and 2014 till the determination of this suit.

The one month salary at N25,000 in lieu of notice.
The 30% commission from the 6% interest made from excesses of November 2009 to September 2010 totaling N160,108.56
Interest accruing from the above monies (i-v) at 20% or any other percentage based on the prevailing interest rate as approved by the Central Bank of Nigeria till judgment is delivered in this suit.
An order compelling the Defendants to pay to the Claimant N15,000,000 (fifteen million Naira) being general damages as a result of the injury suffered by the Claimant flowing from the false allegations, unlawful suspension, arrests, detentions, outright refusal to pay the arrears of entitlements upon demand and the health hazards the Claimant is exposed to.

The Defendants filed their joint statement of defence on the 24^th November, 2017. The Claimant subsequently filed a reply and issues were accordingly deemed as properly joined thereby.

SUMMARY OF THE CAUSE OF ACTION:

In September 2009, the Claimant was initially employed by the 1^st Defendant as a freelance marketing field officer. He was a commissioned worker without full salary until October 2010 when he was confirmed as a banking officer. On 1/8/2011, the Claimant was queried for fraudulent activities at the 1^st Defendant’s Ohafia meeting point in Isusu department. This query was followed by an indefinite suspension from duty on 2/8/2011. Subsequently, he (the Claimant) was arraigned in charge nos: MOH/37C/2011, and MOH/30C/2012, detained at Ohafia Police station and remanded at Arochukwu prison. Being aggrieved therefore, the Claimant believes that the Defendants’ query was malicious and geared towards “dealing” with him.

CLAIMANT’S CASE:

The Claimant, relying on his written deposition, testified as a sole witness in his case on 18/10/2018, and was duly cross-examined on the same day, whereupon he closed his case. He tendered 11 documents as exhibits in the course of this trial thus:

Exhibit C1-employment letter dated 14/10/2010;
Exhibit C2-premium pension fund certificate;
Exhibit C3-internal memo dated 20/9/2010;
Exhibit C4- invitation letter dated 20/12/2010;
Exhibit C5- Audit of Ohafia meeting point dated 16/12/2010;
Exhibit C6-letter of Query Re: Alhaji Haruna Gambo dated 12/4/2011;
Exhibit C7-CTC of ruling in charge no: MOH/37c/2011;
Exhibit C8-query dated 1/8/2011;
Exhibit C9-Suspension letter dated 2/8/2011;
Exhibit C10- certified judgment in charge no.: MOH/30C/2012;
Exhibit C11 – Claimant solicitor’s letter dated 17/3/2014

DEFENDANTS’ CASE:

The Defendants did not call any witness and their Counsel instead opted to rest on the Claimant’s case and address this Court.

The final addresses of both Counsel having now been duly filed and served, were adopted on the 21/1/2019 and adjourned to today, the 13/2/2019 for pronouncement of judgment.

DEFENDANT’S FINAL SUBMISSIONS:

The Defendants raised one issue for determination in their written final arguments of 31/10/2018 which is: whether this suit is competent? In the alternative, whether the claimant has proved his case?

Learned Counsel had argued that the instant suit is incompetent because the 1^st defendant is non-existent, robbing this court of the jurisdiction to entertain this case. It was further argued that the fact that the 1^st Defendant was in liquidation at the time this suit was instituted, was pleaded in paragraph 12 of the statement of defence to which, the Claimant denied without saying more.

According to the Counsel for the Defendants, the Claimant’s statement under cross-examination that he did not know that CBN had withdrawn the 1^st Defendant’s banking license amounts to an admission.

On the other hand, Counsel submitted that the Claimant is not entitled to the reliefs sought in this suit owing to the fact that he had failed to prove his case on the balance of probabilities, and particularly, that the Claimant failed to prove his case against the 1^st Defendant albeit dead. Counsel referred to the case of Olowu v Building Stock Ltd (citation supplied).

Furthermore, it was contended that the Claimant merited his suspension, and this case unequivocally amounted to an abuse of court process.

On the Claimant’s second relief sought, it was opined that it must not be sustained since this Court cannot impose an employee on an unwilling employer. See Momoh v Adedoyin (citation supplied). It is Counsel’s further opinion that the Claimant’s employment letter provided only for payment of salaries and nothing more. Thus, the reliefs seeking for all manner of entitlements ought to be refused by this court. The case of Adams v. LSDPC (citation supplied) was referred to.

Again, Counsel was of the view that the suspension of the Claimant was lawful, and as such unable to ground the claim for damages. Hence, without any claim stemming from false allegations, detentions and arrests, the relief of damages for them should be refused by this court ~ See Okeke v Aondoakaa (citation supplied).

In conclusion, Counsel urged this Court to strike out or dismiss this action with substantial costs because an action cannot be maintained against a dead person.

CLAIMANTS’ FINAL SUBMISSIONS:

The Claimant’s Counsel on the 16/11/2018, filed his final address and adopted the issues that were formulated for determination by the Defendants’ Counsel.

On the issues above, Counsel first submitted that this suit is competent having been brought against persons who are juristic persons in law, as there were no evidence in proof of the 1^st Defendant’s liquidation. He submitted further that the non-existence of the 1^st Defendant is a matter of evidence, which address of Counsel cannot take the place of. See: Okubale v Oyagbola (citation supplied). More so, with the 1^st Defendant being accordingly represented by Counsel, it is purportedly logical that he was paid legal fees by an entity.

It was further contended by Counsel that the Claimant had proved his case, and with the absence of any evidence to the contrary, his evidence is unchallenged, deemed admitted, and should be acted upon by this Court. See Nzeribe v. Dave Engineering Co. Ltd (citation supplied).

Counsel contended on that with the Defendants not adducing any evidence in support of their pleadings, minimum evidence from the Claimant satisfies the requirement of proof. See Buraimoh v. Bamgbose (1989) 3 NWLR (pt 109) 352.

Finally, this Court was urged to enter judgment for the Claimant.

1ST DEFENDANTS’ REPLY ON PONTS OF LAW:

In their Reply filed on 29/11/2018, learned Counsel submitted that it is not mandatory for a Defendant to testify in a civil action, as such they may choose to rely on the Claimant’s pleadings and evidence especially where the latter has failed to make any case.

Again, Counsel referred to the decision in Ayorinde v. Oni (2000) 15 NWLR(pt 649) 348 on who a competent Defendant is. Accordingly, a case would be struck out where a Defendant is non existent, and that the requirement of proving a probable cause arises only when there is a competent Defendant.

DECISION:

It is necessary for this Court to make the following observations before delving into the main issues raised for determination and eventually make my findings. First of all, these Defendants, having not called in evidence through any witness, should not have filed their final written address first. This is pursuant to Order 38 Rule 20 (1) of the Rules of this Court, 2017. That order specifically states that where a Defendant did not call in any evidence, the Claimant shall within 21 days thereafter, file his written address first and then the Defendant may file his thereafter. By Order 38 Rule 20 (4), the Claimant again shall have the right of a reply. Unfortunately, this was not the order followed by the Counsel in the filing of their respective final written addresses here. It is important to state this because in making my findings, this Court shall treat the final written addresses based on the correct order as provided under Order 38 Rule 20.

Secondly, although the final written addresses filed by Dr. C.O. Chijioke stated that it was solely on behalf of the 1^st Defendant, the said Counsel had entered a memorandum of appearance on behalf of both Defendants in this suit including a joint Statement of Defence, list of documents to be relied upon at trial, and deposition on oath dated 24/11/2017. It is therefore safe to conclude that the said Counsel does in fact appear for both Defendants on record regardless of the fact that he filed the final written addresses purportedly on behalf of the 1^st Defendant only.

Moving on, my primal duty is to consider the jurisdictional competence of this Court to determine this case brought against a Defendant its Counsel submits to be purportedly non-existent.

Inarguably, jurisdiction is a threshold question and once raised must be dispensed quickly. In determining whether or not a Court owns the requisite jurisdiction, only a Claimant’s writ and claims need be considered ~ See A.G. Kwara State v Adeyemo (2017) 1 NWLR (pt 1546) 210 at 239, F-G. In instituting this action, this Claimant clearly established by their names, the persons he has this cause of action against, that is these Defendants.

The issue over the juristic existence of the 1^st Defendant purports to question the legal personality of the Defendant Bank sued by the Claimant in the instant case. As far as I can tell, the 2^nd Defendant’s status as a legal person capable of being sued is not in doubt whatsoever, it not being questioned.

From the get – go, I firmly subscribe that in order for Counsel to establish that the 1^st Defendant no longer exists, it is insufficient for him to merely state so in his final address without leading prior evidence. I agree with the Claimant’s Counsel that final addresses do not substitute oral or written testimonies and or evidence. What this amounts to is Counsel supplying evidence during address which ought to have ordinarily been brought during or at the trial stage. Where it is claimed that an artificial person no longer exists, as was done in the 1^st Defendant’s averments in its pleadings, except where such is admitted by the opposing party, or it is a generally known fact the Court must take judicial notice of, it must be proved by the tendering of credible evidence in that regard. In this case, the purported fact that the 1^st Defendant is dead is only a fact known to the 1^st Defendant’s Counsel. The burden of proving the non existence of the 1^st Defendant therefore lies with its Counsel. It is therefore the practice in all the courts of law that an applicant who fails to furnish the court with all necessary and vital document(s) for the due consideration of his application does so at his own peril as his application may likely be refused and he cannot be heard to complain. See: NNSC Ltd v. Alhaji Hammajoda Sabana Co. Ltd. (1988) 2 NWLR (Pt.74) 33.

Now, the process of liquidation or winding up of a company or body corporate in Nigeria is governed by the CAMA. In section 401 of the CAMA only three types of winding ups are recognized. These are:

Court ordered winding up;
Voluntary winding up; and
Court supervised winding up.

In all three modes above, a liquidator is appointed over the affairs of the company. In the instant case, the 1^st Defendant neither produced any scintilla of evidence to show the mode of liquidation it is undergoing or underwent, nor produced the Gazette and two newspaper publications showing the appointment of any liquidator over its affairs as required by law.

Besides, the arguments of the 1^st Defendant’s Counsel with all due respect, is a gross misconception of the law. A perusal of Sections 401— 536 of the CAMA clearly reveal that liquidation does not mean that a company is moribund or non-existent. See in re Amolegbee (2014) 8 NWLR (pt 1408) 76 at 94.

A company (a body corporate or a bank as in this instance) becomes alive as an artificial person upon incorporation, and dies upon dissolution. It is not in all cases that the process of liquidation leads to dissolution. Thus, the bare assertion that the 1^st Defendant is in liquidation or had its license withdrawn or revoked, even if it was proven by cogent and credible evidence may not result in a finding that the 1^st Defendant is dead and thus not liable to an action of this nature.

In a nutshell, the liquidation of a company or a bank is not necessarily its death as a corporate entity. ~ See NDIC v UBN Plc (2015) 12 NWLR (pt 1473) 246 at 297, C-F. Even the revocation of the banking license of a bank, or the cessation of business operations does not necessarily bring to an end the juristic life or legal existence of such company. See: Spring Bank v ACB Plc (2016) 18 NWLR (pt 1544) 245 at 261, C-E.

In describing whether a company that is wound up ceases to exist, the Court of Appeal in Progress Bank (Nig.) Plc. v. O.K. Contact Point Ltd. (2008) 1 NWLR (Pt.1069)514 said:

… In considering the above, the provisions of Sections 417 and 454 of the Companies and Allied Matters Act, 1990 are relevant. They provide as follows: “454(1) If the affairs of a company have been fully wound-up and the liquidator makes an application in that behalf, the court shall order the dissolution of the company and the company shall be dissolved accordingly from the date of the order. 2) A copy of the order shall, within fourteen days from the date when made, be forwarded by the liquidator to the Commission who shall make in its books a minute of the dissolution of the company. 417 – If a winding-up order is made or a provisional liquidator is appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court given on such terms as the court may impose.” On 15/01/07 we heard both counsel. I must say straight away that there is a world of difference between the winding-up of a company and the dissolution of a company. Under the provisions of section 454(1) and (2) of the Companies and Allied Matters Act, 1990 a company dies once the court orders the dissolution of the company. The revocation of the license of the Company/Bank and order of court winding up same does not indicate its death. The appointment of a Liquidator is for the purpose of ensuring the smooth burial of the company. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65.” Per RHODES-VIVOUR, J.C.A. (Pp.21-22, Paras.A-A).

Therefore, it is my considered view based on the foregone rationale, that the 1^st Defendant has not been shown to be non existent or incapable of bearing liability for any legal actions. The burden of proving the non existence of any fact lies on the party who shall fail if no other facts are adduced. In this instance, the 1^st Defendant owns the burden of establishing (unless it is a fact that this Court must take judicial notice of), that it does not exist by producing sufficient and credible evidence in that regard at the trial stages of this suit. I do not accept the argument made by the learned Counsel that it was unnecessary and irrelevant for him to have produced any evidence on behalf of the 1^st Defendant in order to establish its current legal status at the earliest possible time. Besides, there are two Defendants in this action and assuming (without conceding) that the 1^st Defendant is not a legal entity, the 2^nd Defendant still bears the burden for any liabilities arising from the cause. The claims sought are without question, against these Defendants jointly and or severally.

Having resolved the issue of jurisdiction, what remains clearly for resolution are two salient issues, thus:

Whether the suspension of the Claimant was wrongful?
Whether the reliefs sought in this action ought to be granted to the Claimant?

As a preliminary point, it needs to be stated that the implication of the failure of these Defendants to lead evidence with respect to their defence filed against the Claimant’s claim is that averments contained in pleadings on which no evidence is adduced, are deemed abandoned. The position of the law is that pleadings must be proved by evidence. See Okuleye v Adesanya (2014) 12 NWLR (pt 1422) 521 at 535, E. In other words, a Defendant who does not give evidence in support of his pleadings, is deemed to have accepted and rested his case on the facts adduced by the Claimant notwithstanding his general traversed statements. Again, closing addresses of Counsel, no matter how brilliantly couched, can never be a substitute for evidence. See Okuleye v Adesanya (supra) at 539, B-C.

On the footing of these legal principles therefore, the task before me is simply to examine the evidence on record as adduced by the Claimant and the law applicable thereto, in order to determine whether or not such evidence has satisfied the requirement of proof imposed on him by the provisions of sections 131 and 132 of the Evidence Act (as amended), to substantiate the reliefs he seeks.

In this suit, the Claimant claims four reliefs against the Defendants. Reliefs A, B, and C shall be considered together. The Claimant was purportedly suspended vide letter (Exhibit C9)by the 1st Defendant. The evidence on record prequel to this suspension is that the Claimant was queried by one Mr. Anyahuru S.I, (Exhibit C8) the Manager of Isusu Banking, directing the Claimant to respond on why he should not be disciplined for fraudulent activities. The letter from the 1^st Defendant Bank dated 2/8/2011 and titled “SUSPENSION FROM DUTY” (Exhibit C9) was accordingly issued to the Claimant. The question of whether this suspension was wrongful depends on the contract entered into by the parties because the law is that an employer has the right to discipline an errant employee for any act or misconduct but it must be done within the confines of the terms of contract of employment. This position is appropriate and equitable in situations where an employee is suspended without pay. The terms of the contract of employment must give an employer the right to suspend an employee without pay. In the present case the terms and conditions of service binding the Claimant and the Defendants is Exhibit C1, the letter of offer of appointment. However, a cursory look at Exhibit C1 indicates that there is no clause or term providing for the procedure for suspension of an employee. From the circumstances of the case, the Defendants stopped paying the Claimant so soon after he was suspended from performing his normal duties as a bank officer. Thus, I find and hold that the indefinite suspension of the Claimant without pay through the letter dated 2/8/2011 is indeed wrongful.

Furthermore, the Suspension letter in this case indicated that the reason the Claimant was suspended was due to the charges made against him. The letter reads in part… “management is constrained to ask you to step aside pending the determination of the case”. In the end, the Claimant was cleared and exonerated of the charges brought against him through the petition of Alhaji Haruna Gambo on 12/4/11 (Exhibit C6).

Consequently, upon his exoneration, there were no further foreseeable reasons for the Defendants to have continued to enforce the administrative indefinite suspension of the Claimant. Ordinarily, I would have taken the view that the letter of suspension did not amount to the termination of the contract of employment; In reality however, the inevitable connotation (giving the contents of the letter of indefinite suspension without pay from the services of the 1^st Defendant, and taking into consideration all other surrounding circumstances including the fact that the Claimant was never recalled to work despite being cleared of the charges for which he was suspended), is that of a constructive dismissal of the Claimant.

Therefore, an intention to sever the employment of the Claimant can rightly be inferred from the contents of the indefinite suspension letter admitted as exhibit C9. See the Court of Appeal’s decision in Olafimihan v Nova Lay-Tech Ltd (1998) 4 NWLR (pt 547) 608 at 620, A. See also: Ilodibia v. N.C.C Ltd (1997) 7 NWLR (Pt. 512) 174 at 188.

Also and deducible from the conduct of the Defendants’ unwillingness to continue employing the Claimant, this Court can not therefore declare that the contract of employment subsists to date.

Unfortunately also, exhibit C1 did not stipulate the length of notice required for the Claimant to either resign or for the Defendants to terminate his employment. It becomes paramount therefore for this Court to rely on section 11 of the Labour Act which provides as follows:

11 (1) Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

(2) The notice to be given for the purposes of subsection (1) of this section shall be:

(a) one day, where the contract has continued for a period of three months or less;

(b) one week, where the contract had continued for more than three months but less than two years;

(c) two weeks, where the contract has continued for a period of two years but less than five years; and

(d) one month, where the contract had continued for five years or more.

(3) Any notice for a period of one week or more shall be in writing”. (emphasis mine)

Following the above provisions, it is abundantly obvious that since the Claimant’s employment with the 1^st Defendant lasted for almost two years which was from September, 2009 to 2^nd August, 2011 and since his employment was not terminated upon due notice giving to him, statutory provisions mandates that at least one week notice be given to such an employee who had worked for a period of three months to less than two years.

Accordingly, I find that the Claimant’s employment was wrongfully terminated by the Defendants who constructively dismissed him without the requisite notice. The Claimant is therefore entitled to a week’s pay in lieu of the requisite statutory notice.

Having found the Defendants in breach of their obligations in the contract of employment, the Claimant is automatically entitled to damages for such infraction ~ See BEDC Plc v Esealuka (2015) 2 NWLR (pt 1444) 411 at 436, H. I award as damages to this Claimant, his one year’s basic salary as provided for in his contract of employment at the sum of N25,000.00 per month. The sum of N 300,000.00 only is hereby awarded to the Claimant as damages for the wrongful termination of his employment which must be paid by the Defendants jointly and or severally, within 14 days of this here judgment.

With respect to the other entitlements sought by the Claimant, to wit: Medical allowance, 13^th month salary, commissions etc. pleaded in the Statement of facts, no specific evidence was led to prove them. The contract of employment only specified the monthly salary of N25,000 and never mentioned his entitlement to any other benefits, emoluments, allowances, and or commissions. Besides, these species of claims are special damages requiring specific prove of by particularization and evidence. Any pleaded fact not supported by evidence is therefore deemed abandoned notwithstanding the fact that it is unchallenged ~ See Nsionu v Nsionu (2011) 16 NWLR (pt 1274) 536 at 547 F-G. Accordingly, I find that the Claimant was only entitled to be paid his salaries and no more as same have not been proved.

Relief D suffers the fate of the other entitlements claimed in this suit. There is no evidence substantiating the injury and health hazards the Claimant was allegedly exposed to. Consequently, relief D is also hereby denied.

For the avoidance of any doubt, the following declaration(s) and orders are hereby made in favour of this Claimant as follows:

Declare that his indefinite suspension from employment as a bank officer with the 1^st Defendant Bank was wrongful.
Order the Defendants to pay the sum of N 6,250.00 being a week’s salary to the Claimant in lieu of notice of termination of his employment.
Order the Defendants to pay the Claimant the sum of N300,000.00 as general damages.
Order Defendant to pay the Claimants within 14 days of this judgment, failing which the entire judgment sum of N306,250 shall attract interest at 10% per annum until fully paid.

This suit succeeds in part only and I so pronounce

Delivered in Owerri, this 13^th day of February, 2019.

Honourable Justice Ibrahim S. Galadima,

Presiding Judge.