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National Industrial Court

D’MAX AMRERU AKPOVONA VS ECOBANK PLC

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 7th June 2018                                              SUIT NO. NICN/EN/98/2015

 

BETWEEN

 

D’MAX AMRERU AKPOVONA                   …                          CLAIMANT

 

AND

 

ECOBANK PLC                                           …                          DEFENDANT

         

REPRESENTATION:

 

Ejikeme Wilson Oji Esq. with Mrs. Joy Nnani and Mrs. C. V. Chijioke for the Claimant

Chief Christopher Chike Aghanwa with Cornelius Osita Njoku Esq. for the Defendant.

JUDGMENT

 

  1. The Claimant commenced this action by a Complaint dated 16th October 2015. By amended statement of facts dated 6th December 2016, the Claimant claimed against the Defendant for:

  1. A declaration that the Claimant’s resignation from the services of the Defendant was induced, influenced and forced by the Defendant and therefore amounted to unlawful termination of employment.

  1. A declaration that the Claimant is entitled to severance packages, gratuity, payment in lieu of notice, compensation for loss of office and other benefits to be stated in the Claimant’s formal exit documents.

  1. A declaration that the continued refusal of the Defendant to release all necessary exit documents belonging to the Claimant as a staff of the Defendant is unlawful, unconstitutional and contrary to the terms of employment as obtainable in the Defendant’s bank.

  1. A declaration that the continued refusal of the Defendant to remit the Claimant’s pension contributions for the period of January 2002 to January 2003 with interest thereof, as well as the interest accruable to his pension contributions for the period of January 2005 to December 2008 [48 months] to his pension account with Stanbic IBTC Pension Manager is unlawful, fraudulent, unconstitutional and contrary to the Defendant’s conditions of service.

  1. An order of Court mandating the Defendant to release forthwith the Claimant’s exit documents to enable him continue with his career elsewhere, and all his severance benefits with interest.

  1. An order of Court mandating the Defendant to remit all the Claimant’s pension entitlements with interest to his pension managers and also release his pay slip to be able to have access to his pension fund.

  1. An order of Court mandating the Defendant to pay all the Claimant’s entitlement, from the day of the wrongful termination of employment till date which amounts to N21, 848,431.27 [twenty one million eight hundred and forty eight thousand, four hundred and thirty-one naira twenty seven kobo]

[i]      Redundancy                                                   –        3, 070, 990.40

[ii]      3 months in lieu of notice                               –        558, 361.89

[iii]     Gratuity                                                        –        1, 560,000

[iv]     Shares return money                                      –        1, 739,708.64

[v]      Staff pension fund [compulsory staff savings]   –        1, 400,000.00

[vi]     Summation of the above with interest at 24% p.a.     20, 322,908.66

[vii]    The interest on the suppressed pension funds of

          January 2005 to December 2008 and pension con-

          tributions for January 2002 to May 2003 with

          interest at 2% per month                               –        1, 525,521.61

[viii]   Total entitlement                                           –        21, 848,431.27

[ix]     10% interest until judgment is delivered and 21%

          Interest until judgment sum is liquidated

  1. An order of Court mandating the Defendant to review the fraudulent entries made in the Claimant’s account no. 0012101035085/2112221938 by the Defendant at a time the Claimant had no access to the said account for five years.

  1. General damages in the sum of N100, 000,000 [one hundred million naira]

  1. The sum of N5, 000,000 [five million naira] as the cost of prosecuting this suit.

  1. The Claimant filed with the complaint a statement of facts, list of witnesses, statement on oath of the witnesses, list of documents and copies of the documents. Upon receipt of the processes, the Defendant entered conditional appearance and filed its defence processes dated 29th January 2016. By leave of Court granted on 23rd February 2017, the Claimant filed an amended statement of facts and Claimant’s further statement on oath. The Defendant also filed an amended statement of defence and additional statement on oath of Defendant’s witness. Trial commenced on 8th November 2017 and was concluded on 9th February 2018.

  1. The Claimant’s first witness, Jane Onuoha, adopted her statement on oath dated 16th October 2015 and was cross-examined. The Claimant testified for himself as second Claimant’s witness. He adopted his statement on oath dated 16th October 2015 and further statement on oath dated 16th January 2016 and tendered 44 exhibits marked exhibits A to PP and was cross-examined. The Defendant’s witness, Mr. Anyebe Anebi, adopted his statement on oath dated 29th January 2016 and additional statement on oath dated 29th March 2017 and tendered 12 exhibits marked exhibits D1 to D12 and was cross-examined. The case was thereafter adjourned for adoption of final written addresses.

  1. The case came up on 19th April 2018 for adoption of final written addresses. The Defendant’s Counsel, Chief Aghanwa, adopted his final written address dated 2nd March 2018 and reply on point of law dated 29th March 2018 and urged the Court to dismiss the claim in its entirety. The Claimant’s Counsel, Mr. Oji, adopted his final written address dated 21st March 2018 and filed on 26th March 2018 as his submission in support of the claim and urged the Court to grant the claims. The case was consequently set down for judgment.

CLAIMANT’S CASE

  1. The Claimant was a staff of the Defendant having been employed on 12th December 2001 by the defunct Oceanic Bank International [Nigeria] Limited as Assistant Officer – Entry Point [AOEP]. He rose through the ranks to become Head of Operation Enugu Main Branch of the Defendant in August 2008. In January 2010, the sum of N2, 850,000 was withdrawn from Savings Account no. 011000101664 of one Samuel Obamawu which was domiciled in Lagos State from the Enugu Main Branch. The withdrawal was authorized by the Claimant. Mr. Samuel Obamawu denied making the transaction resulting in a query and subsequent advice to the Claimant to resign. Consequently, by letter dated 21st April 2010 the Claimant resigned his appointment. The letter was rejected and the Claimant was asked to back-date it to 16th April 2010 which he did. It is the Claimant’s case that in spite of his forced resignation the Defendant refused to release his exit documents with which to process his entitlements hence this action.

DEFENDANT’S CASE

 

  1. The Defendant’s case is that the Claimant was a staff of the defunct Oceanic Bank International Nigeria Plc before his resignation in April 2010 and was not one of the staff of Oceanic Bank it absorbed in 2011 after it was acquired. The Claimant approved payment of N2, 850,000 out of Savings Account no. 011000101664 to an impostor resulting in loss of fund to the erstwhile Bank. It is the Defendant’s case that the Claimant exhibited unparalleled indiscretion and negligence in approving the payment and as a result the Claimant and his two subordinates were queried and interviewed by the disciplinary committee. Due to his dismal performance at the disciplinary committee he was advised to resign in order not to mar his future banking career. The Defendant states that Claimant’s letter of resignation dated 21st April 2010 was returned for correction and compliance with the erstwhile Bank’s policy and his subsequent letter of 16th April 2010 was accepted by the Bank. The Defendant contends that the exit documents were dispatched to him immediately after his resignation was accepted, his entitlement computed and netted off against his debts leaving a debit  balance of N3, 062, 410.81 which grew to N3, 289, 556.30 in October 2014.

 SUBMISSION ON BEHALF OF THE DEFENDANT

  1. The Defendant formulated four issues for determination in its final written address to wit:

  1. Whether this suit as presently constituted is competent; if not, whether the Court has jurisdiction to entertain it?

  1. Whether, upon the facts of this case, the Defendant was not entitled to have advised the resignation of the Claimant; if it had, whether the Claimant gave adequate notice of his resignation?

  1. Whether the Defendant fairly computed the Claimant’s final entitlements?

  1. Whether the reliefs claimed by the Claimant are grantable by the Honourable Court upon the peculiar circumstances of this case?

Arguing issue one, learned Counsel for the Defendant submitted that the suit is incompetent because the originating process was not signed by the Claimant or his Counsel in breach of Order 4 rule 4[3] of the National Industrial Court of Nigeria [Civil Procedure] Rules 2007 and consequently this Court lacks the jurisdiction to entertain it. He relied on the cases of Ori-ni-owo v. African Development [1991] 2 NWLR [pt. 171] 38, Amadi v. NNPC [2000] 10 NWLR [pt.674] 76 and Aregbesola v. Oyinlola [2011] All FWLR [pt. 570] 1292.

On issue two, he argued that the Claimant’s letter of resignation, exhibit S, is in breach of the contract of employment and consequently, the Claimant should forfeit his salary and allowances for April 2010 to the Defendant and relied on Isheno v. Julius Berger Nig. Plc [2012] 2 NILR 127 at 157.

On issue three, it was contended that exhibit D4 presented a true reflection of the Claimant’s account with the Defendant leaving a net debit balance of N3, 289, 556.30 as at 31/10/2014. It was also contended that exhibit II has no origin and was not signed by its maker and thus is a worthless document without legal efficacy. He relied on Omega Bank Plc v. OBC Ltd [2005] All FWLR [pt.249] 1964 and Aregbesola v. Oyinlola [2011] All FWLR [pt.570] 1292.

On issue four, learned Counsel explained that the Claimant is required to prove his claim on a preponderance of evidence and submitted that he has failed to discharge this burden and urged the Court to hold that the Claimant’s suit lacks merit and should be dismissed. It was also argued that in view of the denial of receipt of exhibits U, V, X, Y, Z and BB by the Defendant, the Claimant is required to prove delivery of the documents by dispatch book, evidence of dispatch by post or evidence of a credible witness showing how and when the documents were delivered and referred to Nlewedim v. Uduma [1995] 6 NWLR [pt.402] 383 and Agbaje v. Fashola [2008] All FWLR [pt.443] 1302. It was further argued that the Claimant has not led credible evidence that he served those documents and as a result the documents have no evidential weight and should be discountenanced.

SUBMISSION ON BEHALF OF THE CLAIMANT

  1. The Claimant raised three issues for determination, namely:

  1. Whether this suit as presently constituted is competent; if not, whether the Court has jurisdiction to entertain it?

  1. Whether the Claimant’s employment was lawfully terminated by the Defendant?

  1. Whether the Claimant is entitled to his claims?

 

On issue one, learned Counsel for the Claimant submitted that this issue had been decided by this Court and this Court cannot sit on appeal over its decision and relied on L.S.D.P.C. v. Adeyemi-Bero [2005] 8 NWLR [pt.927] 330 and Saiki & Ors. v. Esheveshe Nig. Ltd. [2013] LPELR-20739[CA].

 

Arguing issue two learned Counsel submitted that the termination of the Claimant’s employment in the guise of advice to resign is unlawful. He explained that the Claimant’s resignation was obtained by blackmail and manipulation which is contrary to the conditions of service. It was also submitted that the double debits of the Claimant’s account in the guise of one month salary in lieu of notice is a breach of the contract of employment. Learned Counsel explained that in a master-servant relationship, a master does not have to state the reason for termination of his employee; but where he decides to state the reason, then that reason must be proved and relied on Fakuade v. OAU Teaching Hospital Complex [1993] 6 SCNJ 35 and Osisanya v. Afribank Nig. Plc [2007] All FWLR [pt.360] 1480 at 1491. He argued that the reason stated in paragraphs 3, 4 and 5 of the Defendant’s amended statement of defence that the Claimant exhibited unparalleled indiscretion and negligence in the discharge of his duty has not been proved and the report of the Disciplinary Committee was not tendered.

On issue three, he submitted that the Claimant has proved a case of unlawful termination of employment and is entitled to damages. It was contended that the Claimant is not indebted to the Defendant because the Defendant did not place any concrete evidence of his indebtedness and relied on section 136[1] of the Evidence Act and N.B.C. v. Okwejiminor [1998] 8 NWLR [pt.561] 295 at 308. On the Claimant’s exit documents, it was argued that the evidence of DW1 buttressed the fact that the Claimant has not been issued with any exit document. On pension contributions, it was argued that exhibits E and E1 did not discriminate between staff on probation and confirmed staff and exhibits JJ and LL showed a shortfall in remittance of the Claimant’s pension contributions. In response to Defendant’s objection to exhibits JJ and LL, he submitted that the Defendant did not object to the documents at the trial and could not do so in his address. At any rate, it was submitted that by section 12[2] National Industrial Court Act, 2006 this Court can depart from the provisions of the Evidence Act in the interest of justice.

REPLY ON POINT OF LAW

 

  1. Learned Counsel for the Defendant submitted that since this case commenced de novo the proceedings and decisions abated and had no legal effect in the subsequent trial of the case and relied on Eke v. Akpu [2010] AFWLR [pt.510] 640. It was also submitted that for section 12[2][b] National Industrial Court Act, 2006 to apply there must be sufficient and exceptional materials/circumstances placed before the Court upon which it may exercise its discretion judicially and judiciously to admit exhibits JJ and LL and relied on Akpoku v. Ilombu [1998] 8 NWLR [pt.561] 283. He contended that no such materials have been placed before the Court.

COURT’S DECISION

  1. I have considered the processes filed in this suit and the submissions of learned Counsel for the parties. Before addressing the merit of the case, I would like to make a few clarifications. First, it must be noted that the civil procedure rules applicable to this suit is the National Industrial Court of Nigeria [Civil Procedure] Rules 2017 and not the National Industrial Court of Nigeria [Civil Procedure] Rules 2007 as argued by learned Counsel for the Defendant. SeeAwoke Owata & Ors. v. Uchanchi Anyigor & Ors. [1993] LPELR-2842[SC] at page 13 and Nonye Imunze v. The Federal Republic of Nigeria [2014] LPELR-22254[SC] at page 14 where it was held that the rule governing practice and procedure is the rule in force at the time of the trial of the case or when the application is taken. Consequently, reference by learned Counsel to the 2007 Rules is misconceived.

 

  1. Also, it is not in all cases when the word “shall” is used in an enactment that it implies a mandate or an imperative. The word “shall” is capable of bearing many meanings. Whether its use in a statute implies a mandate or a direction must be borne out by the context in which it is used. SeeCaptain E. C. C. Amadi v. Nigerian National Petroleum Corporation [2000] LPELR-445[SC] at page 20, Uwais, J.S.C. [as he then was] held:

“It is settled that the word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission – See Ifezue v Mbadugha, [1984] 1 SCNLR 427 at pp. 456-7. In the present case, we are concerned with whether it has been used in a mandatory sense or directory sense. If used in a mandatory sense, then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfill the directive substantially.”

In that case, it was held that the third use of the word “shall” implied a direction and substantial compliance was accepted. It is my respectful view that the use of the word “shall” in Order 4 Rule 4[3] National Industrial Court of Nigeria [Civil Procedure] Rules 2017 [which is substantially the same with Order 4 Rule 4[3] National Industrial Court of Nigeria [Civil Procedure] Rules 2007] is an imperative. However, by Order 5 Rule 1 National Industrial Court of Nigeria [Civil Procedure] Rules 2017, such non-compliance may be treated as an irregularity.

  1. This leads me to the effect of the Ruling delivered by my learned brother, Hon. Justice Waziri Abali on 18th October 2016. Learned Counsel for the Defendant argued that the ruling abated upon commencement of the trial de novo and had no legal effect on this case and relied onEke v. Akpu [supra]. Learned Counsel for the Claimant on his part submitted that it would amount to sitting on appeal over the decision of this Court. In the ruling, Hon. Justice Abali held:

“Order 6 Rule 1[2] of the Rules of this Court, no doubts [sic] provides that each copy of an Originating Process shall be signed by the claimant, where he or she is suing in person or the legal practitioner and shall be certified after verification by the Registrar as being a true copy of the original process filed; but then, the specimen Form 1 of the Complaint which is cross referenced in Order 3, Rule 1 makes no provision for where a Claimant or his Legal Practitioner would sign. That being the case, I find it hard to hold that such Originating Process is defective for the reason that it is not signed by either the claimant or his legal practitioner. It is imperative to note that this Court being a Court of equity is more concerned with substantive [sic] justice than technical justice. At any rate, even if such non-signing of the Originating Process is anything to hold against the respondent, it is at most an irregularity, and Order 5, Rule 1 of the Rules of this Court empowers this Court to give direction as it deems fit.”

The Defendant did not appeal against this ruling but urges this Court to discountenance it on the ground that this case started de novo. In Al-Bishak v. National Productivity Centre & Anor. [2015] LPELR-24659[CA] at pages 57-58 which is on all fours with this case, Oseji, J.C.A., held thus:

“Curiously enough in the course of a careful perusal of the Record, it was discovered that learned counsel for the 2nd Respondent filed a notice of preliminary objection dated 10-12-2007 and it is at page 346 to 347 of the record. It was moved and argued on 4-3-2008 as shown at pages 350 to 350B of the record. In its ruling as contained in [sic] pages 350B and 350C of the Record, the lower Court overruled the preliminary objection on the ground that the National Productivity Centre Act made the Minister to have supervisory role over the Centre and the letter of termination of appointment pointed to that direction in which case there is a cause of action against it. Incidentally there was no appeal against the said Ruling which means that it still subsists despite the fact that the Judge who gave the Ruling is not the same Judge who concluded the hearing and delivered the final judgment. Nonetheless it is still the same court and any such ruling remains binding and subsisting until it is set aside on appeal. A judge of co-ordinate jurisdiction cannot sit on appeal or reverse the decision of another Judge more so that in this case it was in the same Court. When a case is to be tried de novo before another Judge due to the transfer of a former Judge hearing it or due to a reassignment order, every ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting.”

  1. The case ofEke v. Akpu [supra] relied on by learned Counsel is also a decision of the Court of Appeal. It is trite that where a lower Court is faced with two conflicting decisions of a higher Court, the lower Court is bound to follow the latter case. See Hon. Jeffrey Moses Owor v. Hon. Bereware Christopher & Ors. [2008] LPELR-4813[CA] at pages 25-26 and Dr. Daru & Ors. v. Barrister Ibrahim Aminu Umar [2013] LPELR-21905[CA] at page 55. In the latter case, the Court of Appeal was emphatic. It held, per Ige, J.C.A., thus:

“It is now settled that where there are two conflicting judgments of this court, the lower court or courts, is or are bound by the latter decision and must follow and apply it.”

 

In the light of the foregoing, I hold the view that since this Court has ruled on the issue on 18th October 2016 and the Defendant did not appeal against the decision that settles the matter. Any other position I take on the issue will not be consistent with settled judicial authorities and will amount to sitting on appeal over a decision of my learned brother. This temptation I must resist.

  1. The last point relates to proof of delivery of exhibits U, V, X, Y, Z and BB by the Claimant. It is settled law that the issue whether a document was received by the addressee is a question of fact to be proved by evidence. In law, the burden of proving the existence of a material issue in controversy is on the party who will lose if no evidence is adduced. See section 136[1] of the Evidence Act, 2011. From case law authorities, there are three ways of proving delivery of a document where the fact of receipt has been sufficiently traversed in the pleading and these are: by a despatch book, by evidence of delivery by registered post and by evidence of a witness credible enough to testify that the letter was delivered. SeeFirst Bank of Nigeria Plc v. S. M. P. Akiri [2013] LPELR-21966 [CA] at pages 23-24 and Isaac O. Nlewedim v. Kalu Uduma [1995] LPELR-2053[SC] at pages 12-13. I therefore agree with the submission of learned Counsel for the Defendant in paragraphs 5.32 and 5.33 of Defendant’s final address that in the absence of proof by any of these means, exhibits U, V, X, Y, Z and BB have no probative value and must be discountenanced.

  1. Having said this, the issue for determination in this case is whether the Claimant has proved his case to entitle him to the reliefs sought or any of them?

The law is settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 133[1] of the Evidence Act 2011 and the cases of Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] at pages 23-24 and Joe Odey Agi, SAN v. Peoples Democratic Party & 2 Ors. [2018] 7 WRN 80 at 144-145. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. From the facts of this case, this is an ordinary master and servant relationship regulated by the letter of employment, exhibit A, and Oceanic Bank International Plc Employee Hand Book, exhibit E which is later in time than exhibit E1.

  1. The first relief is for a declaration that the Claimant’s resignation from the services of the Defendant was induced, influenced and forced by the Defendant and therefore amounted to unlawful termination of employment. The evidence in proof of this claim is contained in paragraphs 22, 23 and 24 of Claimant’s further statement on oath dated 16th January 2016 and exhibits Q, R, S and T. Exhibit R is very instructive. It shows, contrary to the Defendant’s denial in paragraph 15 of the amended statement of defence, that there was a prior communication between Mr. Wole Ogunremi and the Claimant. His email of 22nd April 2010, exhibit R, is explicit. It reads: “This resignation date is not acceptable. You are to send in your lettereffective the date of your notification.” [underlining mine] The date of notification is 16th April 2010, exhibit S. Indubitably, the Defendant compelled the Claimant to resign his employment immediately. He was not given a choice. In other words, the Claimant’s employment was constructively terminated. By his contract of employment, Article 2.6 of exhibit E, the Claimant is entitled to payment of one month’s basic salary in lieu of notice. Curiously, instead of paying the Claimant, the Defendant debited the Claimant’s Account with two months’ basic salary in lieu of notice. See exhibits GG and D4. DW1 admitted in paragraph 10 of his additional statement on oath that the Claimant’s account was debited with one month’s salary in lieu of notice; but under cross examination he said: “I can see exhibit D4 and going by the document there is double deduction of one month’s salary in lieu of notice.” Paragraph 10 of DW1’s additional statement on oath is therefore false and must be discountenanced. It is clear from Article 2.6 of exhibit E that the exercise of the right of termination is conditioned by either notice of termination or payment of salary in lieu of notice. The law is settled that where a contract of employment provides conditions for termination of an employment, those conditions must be strictly observed failing which the termination will be wrongful. In Fiicharles Organ & 14 Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [2016] 8 ACELR 35 at 52, per Muhammad, JSC, held:

“Again it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee.” See also P. C. Mike Eze v. Spring Bank Plc [2014] 3 ACELR 39 at 60.

  1. In this case, not only did the Defendant not pay the Claimant the one month’s basic salary in lieu of notice, it debited his account with two months’ basic salary in lieu of notice. This, to my mind, is oppressive and the worst form of unfair labour practice which must be deprecated. In one breath the Defendant demanded the Claimant’s immediate resignation, in another breath it debited him with two months’ salary in lieu of notice. Sadly, learned Counsel for the Defendant tried to justify this illegality. In the words of Achike, J.C.A. [as he then was] inCo-operative and Commerce Bank [Nigeria] Plc v. Ogochukwu Okpala & Anor. [1997] LPELR-6278[CA] at pages 27-28:

 

“Counsel, while putting across his client’s case is duty bound to do so fearlessly and courageously but he is not permitted to descend to the arena of mischief or calculated attempt to misguide or mislead the court with submission that border or [sic] ridicule and which if erroneously acted upon by the court will precipitate a miscarriage of justice. Counsel, I must reiterate, is an officer of the court and nothing in the determination of any matter by the court in which he serves in that respectable capacity should derail him from comporting himself outside [sic] the four walls of that exalted position.”

In the circumstance, I find and hold that the Claimant’s resignation from the services of the Defendant was induced, influenced and forced by the Defendant and therefore amounted to unlawful termination of his employment. Relief one succeeds and is hereby granted.

  1. Relief two is for a declaration that the Claimant is entitled to severance packages, gratuity, payment in lieu of notice, compensation for loss of office and other benefits to be stated in the Claimant’s formal exit documents. It must be noted that an employee holds his office or position at the pleasure of the employer. His office is not a right or an entitlement capable of conferring any special privileges and consequential damages in the event of removal. It is settled law that in a case of wrongful termination all that the employee gets is his salary in lieu of notice and other accrued benefits, certainly not compensation for loss of office. Also, the “other benefits to be stated in the Claimant’s formal exit documents” is uncertain and too wide and this Court cannot grant it. See Charles Eigbe v. Ajoke Elizabeth Eigbe [2012] LPELR-19690[CA] at page 14. A terminal benefit is a lump sum of money paid to a staff on expiration of his contract of employment. It accrues to him when his service is no longer required. A terminal benefit is readily and easily assessed as it is calculable from the terms and conditions of employment. See Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] LPELR-8223[CA] at page 28. The Claimant did not plead facts and did not lead evidence in proof of the compensation for loss of office and “other benefits”. In paragraphs 26, 28 and 29 of the Claimant’s further statement on oath reference is made to “benefits”. There was no breakdown of these “benefits”. The only explanation of what constitutes the “benefits” is in exhibit X and paragraph 44 of the amended statement of facts which sets out the reliefs. On the other hand, the DW1 in paragraphs 21 and 23 of his statement on oath dated 29th January 2016 stated that the Claimant’s entitlements and benefits were paid to him. Exhibit EE appears to support DW1’s evidence. Paragraph 2 of exhibit EE states: “Kindly be informed that your Client resigned his appointment with the Bank on April 16, 2010 whereupon all entitlements due to him including his gratuity have been paid after deducting his indebtedness from same.” However, article 5.8 of exhibit E provides for long service/gratuity. Article 54 of exhibit E1 provides for redundancy benefits. It must be noted that exhibit E1 has been superseded by exhibit E and there is no provision for redundancy benefits in exhibit E. Curiously, neither in his pleading nor witness deposition did the Claimant refer to Article 5.8 of exhibit E or plead facts bringing him within the provision of Article 5.8. There was no reference to it in the submission of learned Counsel for the Claimant. It is settled law that documentary evidence is of no use in the proceeding unless explained by oral evidence. See MV Courageous Ace & 2Ors. v. Nigerdock Nigeria Plc [2016] LPELR-40223[CA] at pages 20-21, where Oseji, J.C.A., held:

“It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties to explain their essence in the suit. The court cannot be drawn into the arena of litigation to explain the use or relevance of documents dumped on it.”

 

It is also trite that for a Claimant to succeed in securing a declaratory order, he must prove his case on a balance of probability. He must prove the existence of the facts before the Court can pronounce it to be true. See Mrs. Susan Olapeju Sinmisola Olly v. Hon. Olukolu Ganiyu Tunji & 2 Ors. [2012] LPELR-7911 [CA] 41 and I. P. D. Abaye v. Ikem Uche Ofili & Anor. [1986] LPELR-21[SC] at page 81. Nonetheless, where there is a right there must be a remedy. I have held earlier that the Claimant’s employment was constructively terminated. This entitles him to salary in lieu of notice. Also, article 5.8 of exhibit E provides for long service/gratuity and exhibit EE talks about the Claimant’s entitlements including gratuity. Consequently, this relief succeeds in part. I find and hold that the Claimant is entitled to payment of his severance packages, gratuity and one month’s basic salary in lieu of notice.

  1. Relief three is for a declaration that the continued refusal of the Defendant to release all necessary exit documents belonging to the Claimant as a staff of the Defendant is unlawful, unconstitutional and contrary to the terms of employment as obtainable in the Defendant’s bank. The evidence in support of this relief is in paragraphs 25, 28 and 30 of Claimant’s further statement on oath. The Defendant in paragraphs 17, 24 and 30[c] of the amended statement of defence averred that the exit documents were forwarded to the Claimant. This was captured in paragraphs 21 and 35[c] of DW1’s statement on oath dated 29th January 2016. Under cross examination, DW1 said “I can see paragraph 21 of my statement on oath dated 29/1/16 but I don’t have evidence to show that the exit documents were issued. There is no where that the Claimant acknowledged receipt of the exit documents.” In paragraph 5.13 of Defendant’s final written address, learned Counsel for the Defendant argued that the Defendant had to satisfy itself that the Claimant was not leaving with its property and was not indebted to it before issuing a clearance. With due respect, this fact was not pleaded and no evidence was adduced in support. It therefore goes to no issue. From the totality of the evidence, it is clear that the Claimant’s exit documents have not been released to him. However, beyond writing letters the Claimant has not shown that he went to the Defendant’s office and completed the exit forms and still was not issued with the clearance. In my view, issuance of exit document is not automatic but subject to fulfillment of some conditions, including evidence of non-indebtedness to the Defendant. There is evidence before me that the Claimant is indebted to the Defendant, which debt remains unpaid. In the circumstance, it is my considered opinion and I so hold that the continued refusal of the Defendant to release the Claimant’s exit documents is not unlawful, unconstitutional or contrary to the terms of his employment. Relief three fails and it is hereby dismissed.

  1. The fourth relief is for a declaration that the continued refusal of the Defendant to remit the Claimant’s pension contributions for the period of January 2002 to January 2003 with interest thereof, as well as the interest accruable to his pension contributions for the period of January 2005 to December 2008 [48 months] to his pension account with Stanbic IBTC Pension Manager is unlawful, fraudulent, unconstitutional and contrary to the Defendant’s conditions of service. The evidence in support of this relief is in paragraphs 34, 35, 36, 37, 38 and 39 of the Claimant’s further witness statement on oath and exhibits JJ and LL. DW1 in paragraphs 26 and 27 of his statement on oath stated inter alia that “no deductions for pension under SSITF or under any other scheme was made on the Claimant’s salary while he was on probation in 2002/2003.” This deposition was repeated in paragraph 8 of his additional statement on oath. This piece of evidence must be taken with a pinch of salt. First, what is in issue is the Claimant’s NSITF contribution and not the SSITF contribution. SSITF is the Staff Savings Investment Trust Fund, which is an internal arrangement by the defunct bank and staff are admitted into the Fund on 1st October following confirmation of appointment, see article 17 of exhibit E1. There was no such restriction on NSITF. Article 15 of exhibit E1 provides, inter alia, “By law, all employees must join the Nigerian Social Insurance Trust Fund to which deductions are made from salaries at source.” It did not discriminate between confirmed staff and staff on probation. The evidence of DW1 on this issue is therefore misleading. Exhibit JJ show that the remittance from January 2002 to May 2003 were not remitted. Learned Counsel for the Defendant contended that exhibit JJ was not signed and thus inadmissible. In his response learned Counsel for the Claimant argued that learned Counsel did not object to the admissibility of the document at the trial and could not do so at this stage. He submitted that the Court is enjoined in section 12[2] of National Industrial Court Act, 2006 to depart from the provisions of the Evidence Act in the interest of justice. In his reply on point of law, learned Counsel for the Defendant while referring to the directive of the Court that parties should raise their objections in the final address, submitted that no materials have been placed before the Court on which to exercise its discretion. It is settled law that an unsigned document has no evidential value. SeeGlobal Soap & Detergent Ind. Ltd. v. National Agency For Food & Drug Administration & Control [2011] LPELR-4202[CA] at page 30. It is equally settled law that the discretion of this Court cannot be exercised in vacuo if it is to be judicial and judicious. Accordingly, I hold the view that exhibit JJ having not been signed is of no evidential value. Be that as it may, the averments in paragraphs 34, 35, 36, 37, 38 and 39 of the amended statement of facts which is repeated in paragraphs 34, 35, 36, 37, 38 and 39 of the Claimant’s further witness statement on oath were not denied by the Defendant. The Defendant’s averments in paragraphs 21 and 22 of its amended statement of defence are confusing and contradictory. DW1’s evidence that no deductions were made while the Claimant was on probation is contradicted by article 15 of exhibit E1. Also, the Defendant’s response in exhibit EE did not address the issue of the Claimant’s unpaid deductions for the period January 2002 to June 2003 raised in exhibit CC. From the admissible evidence before me, I am satisfied and I so hold that the Claimant has established his claim for his unpaid pension contributions for January 2002 to May 2003. However, the issue of interest was not proved. Consequently, relief four succeeds in part. I hold that the Defendant’s continued refusal to remit the Claimant’s pension contributions for the period of January 2002 to May 2003 to his pension account with Stanbic IBTC Pension Manager is unlawful and contrary to the Defendant’s conditions of service.

  1. The fifth relief is for an order of Court mandating the Defendant to release forthwith the Claimant’s exit documents to enable him continue with his career elsewhere and all his severance benefits with interest. I have held earlier that release of the Claimant’s exit documents is not automatic but subject to fulfillment of some conditions, including evidence of non-indebtedness to the Defendant. There is evidence before me that the Claimant is indebted to the Defendant, which debt remains unpaid. In the circumstance, I cannot make an order mandating the Defendant to release the Claimant’s exit documents forthwith. Relief 5 fails and is hereby dismissed.

  1. Relief six is for an order of Court mandating the Defendant to remit all the Claimant’s pension entitlements with interest to his pension managers and also release his pay slip to be able to have access to his pension fund. I held above that the Claimant has established his claim for unpaid pension contributions for January 2002 to May 2003; but the issue of interest was not proved. Consequently, I make an order mandating the Defendant to remit the Claimant’s pension contributions for the period January 2002 to May 2003 to his pension managers and release his pay slips to enable him access his pensions.

  1. Relief seven is for an order of Court mandating the Defendant to pay the Claimant’s entitlement, from the day of the wrongful termination of employment till date which amounts toN21, 848,431.27 with 10% interest until judgment is delivered and 21% interest until judgment sum is liquidated. I have held earlier that exhibit E superseded exhibit E1. While exhibit E1 provided for redundancy benefits, exhibit E provides for long service/gratuity, which implies abandonment of redundancy benefits. In addition, there is no evidence in proof of the claim for redundancy. That head of claim therefore fails and it is dismissed. It has been established in evidence that the Defendant wrongfully deducted two months’ basic salary in lieu of notice from the Claimant’s account. I also found that the Claimant is entitled to one month’s basic salary in lieu of notice in accordance with article 2.8 of exhibit E. Accordingly, the Claimant is entitled to payment of three months’ basic salary. It is also in evidence that the defunct Oceanic Bank mandated all staff to purchase its shares but no share certificate was issued to the Claimant allocating any number of shares to him but regular deductions were made from his salary for the shares. Paragraph 43 of the amended statement of facts was admitted in paragraph 27 of the amended statement of defence. Under cross examination, DW1 stated that “the Claimant has not been issued with the share certificate because he is still indebted to the Bank”. Section 146[1] of the Companies and Allied Matters Act, 1990 provides that every company shall, within two months after an allotment of shares, have ready for delivery the certificates of all shares allotted. Section 147[1] of the Act makes the certificate a prima facie evidence of the title of the member to the shares. See also the case of Al-Rissalah Printing & Publishing Co. Ltd & Ors. v. Kassem El-Housseini & Ors. [2007] LPELR-8543[CA] at pages 25-26. As at today, there is nothing before the Court showing that any shares were allotted to the Claimant but monthly deductions were made on his salary against shares that were never issued to him. A copy of the alleged certificate withheld by the Defendant was not tendered in evidence. The inference therefore is that it does not exist and none was issued. The question is should the Claimant be compelled to pay for what he did not buy? Or put differently, what was not delivered to him? I do not think so and a Court of equity should not countenance that. In my opinion, consideration has not passed from the Defendant to the Claimant for the deductions made on his salary. In the circumstance, it will be unconscionable for the Defendant to retain the money without any evidence of shareholding. I therefore find for the Claimant and hold that the Claimant is entitled to a refund of the sum of N1, 739, 708.64 being deductions made on his salaries for shares that were never issued to him. While parties are agreed on the existence of Staff Savings Investment Trust Fund and that deductions were made from the Claimant’s salary, there is no evidence before me on how the Claimant arrived at the sum of N1, 400,000. The amount deducted per month and the number of months deductions were made was not stated. This item is in the nature of special damage and must be strictly proved. It has not been so proved and it is hereby refused. On interest, it is the law that pre-judgment interest is awarded where there is an agreement for payment of interest, or under a mercantile custom, or by statute or Rules of Court, or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be specifically pleaded and strictly proved. See Alhaji [Dr.] Bawa Garba & Anor. v. Sheba International [Nig.] Ltd. [2002] 1 NWLR [pt.748] 372 at 396-397 and United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2013] LPELR-20692[CA] 49. Equally not proved is the claim for interest. There is evidence that the Claimant’s gratuity has been paid. That relief therefore fails. In summary, relief 7 succeeds in part.

  1. Relief eight prays for an order mandating the Defendant to review the fraudulent entries made in the Claimant’s account no. 0012101035085/ 2112221938 at a time the Claimant had no access to the account for five years. The evidence in proof is in paragraph 33 of the Claimant’s additional statement on oath and exhibits FF, GG, HH and II. Learned Counsel for the Defendant submitted that fraudulent entries were not proved and exhibit II was not signed by its maker and consequently no proof that any entry in exhibits GG and HH is fraudulent. The law is settled that an unsigned document has no evidential value. Also, exhibit II has no name or address to indicate who made it. It is therefore a worthless document and I so hold. SeeFaro Bottling Company Limited v. Lawrence Osuji [2002] I NWLR [pt.748] 311 at 330-331. In the circumstance, I find and hold that fraudulent entry in the Claimant’s account no. 0012101035085/2112221938 has not been established against the Defendant. Relief 8 fails and it is dismissed.

  1. Relief nine is forN100, 000,000 [one hundred million naira] general damages. I held earlier that the Claimant’s employment was constructively terminated by the Defendant. I also found that the Defendant without reasonable cause debited the Claimant’s account with two months’ basic salary in lieu of notice. In law general damages is presumed to have accrued from the wrong complained of. By implication it flows from the immediate, direct and proximate result complained of. See Texaco Nig. Plc & Anor v. Reuben Iloka [2011] LPELR-5008[CA] at pages 33-34. Where there is a wrong there must be a remedy. Although, in an employer and employee relationship, damages for wrongful termination is usually the sum of money payable in lieu of notice. See Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [2008] 36 WRN 53 at 102 and Gabriel Ativie v. Kabelmetal Nig. Limited [2008] 5-6 SC [pt.11] 47. However, the Court found in the treatment meted to the Claimant oppression and unfair labour practice. Up till today, a statement of his terminal benefits has not been issued to him. His two months’ basic salary wrongfully deducted is still held by the Defendant. Exhibit D4 shows that only 50% of the Claimant’s April 2010 salary was paid. From exhibit R it is clear that the Claimant worked till 22nd April 2010. In view of the above, I hold that the Claimant is entitled to general damages and I award the sum of N500, 000 general damages against the Defendant.

  1. Relief ten is forN5, 000,000 [five million naira] cost of prosecuting this suit. Costs follow events. A successful party is entitled to cost. In assessing and awarding cost the Court is to act judicially and judiciously. See Union Bank of Nigeria Plc v. Charles Olusola Toyinbo [2008] LPELR-5056[CA] at page 67 and Joseph Dameng Mudun & 5 Ors. v. Monday Hassan Adanchi & 3 Ors. [2013] LPELR-20774[CA] at page 51. Also, Order 55 rules 1, 4 and 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 empowers me to award cost. I take into account expenses incurred by the Claimant in ventilating his rights as disclosed by the receipts in the file and I award costs of N100, 000 [one hundred thousand naira] against the Defendant in favour of the Claimant payable within 7 days from the date of this judgment.

  1. In the final analysis, the claim succeeds in part. For the avoidance of doubt, judgment is entered in favour of the Claimant against the Defendant as follows:

  1.  Reliefs 3, 5 and 8 fail and are hereby dismissed. Reliefs 1, 2, 4, 6, 7, 9 and 10 succeed in part.

  1. It is hereby declared that the Claimant’s resignation from the services of the Defendant was induced, influenced and forced by the Defendant and therefore amounted to unlawful termination of his employment.

  1. It is hereby declared that the Claimant is entitled to payment of his severance packages, gratuity and one month’s basic salary in lieu of notice.

  1. It is hereby declared that the Defendant’s continued refusal to remit the Claimant’s pension contributions for the period of January 2002 to May 2003 to his pension account with Stanbic IBTC Pension Manager is unlawful and contrary to the Defendant’s conditions of service.

  1. An order is hereby made mandating the Defendant to remit the Claimant’s pension contributions for the period January 2002 to May 2003 to his pension managers and release his pay slips to enable him access his pensions.

  1. The Claimant is entitled to payment of three months’ basic salary representing one month’s basic salary in lieu of notice and two months’ basic salary wrongfully debited to his account and to a refund of the sum of N1, 739, 708.64 being deductions made on his salaries for shares that were never issued to him.

  1. N500, 000 general damages is awarded in favour of the Claimant against the Defendant.

  1. Costs of N100, 000 is awarded against the Defendant in favour of the Claimant payable within 7 days from the date of this judgment.

  1. The above monetary sums shall bear interest at the rate of 10% per annum from 14th June 2018 until the judgment debt is fully satisfied.

  1. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

7/6/18

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