IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: DECEMBER 17, 2019 SUIT NO. NICN/LA/276/2014
BETWEEN
Emana Ibor Edet – Claimant
AND
Fidelity Bank Plc – Defendant
REPRESENTATION
Moses Omorogbe, for the claimant.
O. M. Ikeji, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant commenced this action on 18th of June 2014 against the defendant by a General Form of Complaint dated and filed on 18th June 2014 accompanied inter alia with a 26-paragraphed statement of facts claiming against the defendant for:
(1) A declaration that the termination of the claimant’s appointment by the defendant as contained in the defendant’s letter dated March 16, 2012, is wrongful, invalid, null and void and of no effect whatsoever.
(2) A declaration that the claimant’s employment with the defendant is still subsisting notwithstanding the purported termination.
(3) An order reinstating the claimant and treating his services as unbroken, but continuous from the period prior to the termination till the date of judgement.
(4) A declaration that the claimant is entitled to all his salaries, emoluments and benefits from March 2012 until the time of his reinstatement.
(5) An order commanding the defendant to pay to the claimant his full salaries, entitlements, allowances and/or benefits from the date of his termination up to the date of judgment.
(6) Alternatively, the claimant claims from the defendant the sum of N21,827,093.50 (Twenty-One Million, Eight Hundred and Twenty-Seven, Ninety-Three Naira, Fifty kobo) being special damages for his wrongful termination from the service of the defendant.
(7) A declaration that the deprivation of the claimant of access to his bank account and the unauthorized debiting of the account by the defendant is wrongful, unwarranted, illegal, injurious and a breach of banking rules and regulations.
(8) General damages of N100,000,000 (One Hundred Million Naira) for the wrongful termination of the claimant’s appointment and the injury suffered in consequence of the actions of the defendant.
2. In terms of relief (6), the claimant put the particulars of special damages thus:
a) Entitlements and allowances unpaid as at March, 2012 – N3,378,375.00
b) Health Insurance Scheme contribution of N100,000.00 per annum from 2008 to 2012 – N400,000.00
c) 7.5% of annual basic salary, transport and housing allowances contributed by the claimant to the Pension Scheme Fund from 2008 to 2012 – N700,000.00
d) 7.5% of annual basic salary, transport and housing allowances contributed by the defendant to the Pension Scheme Fund from 2008 to 2012 – N700,000.00
e) 2.5% of the claimant’s annual basic salary contributed for the National Housing Fund from 2008 to 2012 – N240,000.00
f) Unpaid salary of N281,531.25 for the month of March 2012 – N281,531.25
g) 6 months salary in lieu of notice unpaid to the claimant before his appointment was wrongly terminated – N1,689,187.50
h) Relocation Allowance of N850,000.00 – N850,000.00
i) Hotel Bill of N9,400.00 per day for 5 days – N47,000.00
j) N58,000.00 unlawfully withdrawn from the claimant’s account by the defendant – N58,000
k) Rent for accommodation at Awka, Anambra State – N600,000.00
l) Severance Package of annual salary multiplied by the number of years worked – N13,513,500.00
Total – N21,872,093.50
3. The defendant in reaction filed a 21-paragraphed statement of defence and counterclaim dated 27th August 2014 and denied the claims, urging the Court to dismiss the suit against it. The defendant then counterclaimed against the claimant for the following:
(a) The sum of N310,646.10k (Three Hundred and Ten Thousand, Six Hundred and Forty-Six Naira, Ten Kobo) being the claimant’s indebtedness to the defendant comprising the amounts paid in advance to the claimant as upfront housing, leave, travel and furniture allowances for the period he rendered no services to the defendant which sum he did not earn.
(b) Interest on the adjudged sum against the claimant at 21.5% being the defendant’s prime lending rate from 16th March 2012 till judgment is delivered and thereafter at 10% until the judgment debt is fully and finally liquidated.
(c) Legal costs/expenses incurred in this suit as may be assessed by the Court.
4. On 4th February 2015, the claimant in reaction filed a reply to the statement of defence and defence to counterclaim and a second claimant’s witness statement on oath in support of the defence to counterclaim and prayed for a dismissal of the counterclaims.
5. At the trial, which commenced on 27th January 2016, the claimant (as CW) testified for himself by adopting his 26-paragraphed witness statement on oath deposed to on 18th June 2014 as well as his 9-paragraphed additional witness statement on oath deposed to on 4th February 2015 as his evidence in chief. The claimant tendered seventeen (17) documents, admitted and marked as Exhibits C1 to C17 and relied on them and his evidence in chief. The defendant had two witnesses. Franklin Adaghubu, a Human Resource Officer in the rank of Senior Banking Officer of the defendant as DW1 adopted his witness deposition on oath deposed to on 28th August 2014 and tendered fourteen (14) exhibits, which were admitted in evidence and marked as Exhibits D1 to D11. The defendant’s subpoenaed witness, Noel Orji, Company Secretary/Legal Adviser of Fidelity Pension Managers Ltd, subpoenaed just to tender a document, as DW2, tendered three (3) exhibits marked as Exhibits D12, D13 and D14 without prejudice to the right of the claimant to object in his final written address.
6. At the conclusion of trial, the defendant filed its final written address on 7th May 2019; while the claimant’s was filed on 4th July 2019. The defendant did not file any reply on points of law.
THE CASE BEFORE THE COURT
7. To the claimant, he is a former senior Police Officer who resigned his appointment with the Police in 2008 and joined the defendant as Regional Security Officer. His employment was confirmed with effect from 16th October 2008 vide a letter of 16th May 2009. That he served the defendant faithfully and diligently (earning commendations and promotions) in various regions including the Western region and South South Region of the Bank. That though he joined the defendant as Executive Trainee Notch I, he rose to the position of Regional Security Officer Executive Trainee Notch III. That on 29th February 2012, he was transferred to South East 1 Region as Regional security Officer, which transfer was at the instance of the defendant and so was supposed to be accompanied with some benefits. That nothing was paid. He resumed work in the South East 1 Region in March 2012; and according to the policy of the defendant, he stayed in the hotel for 5 days before he secured a personal accommodation. That on 16th March 2012, he reported for work but was denied online access to sign in and perform his duties. That this was the defendant’s method of terminating his employment for which neither prior notice nor salary in lieu was given to him. That no letter was given to him either. He enquired from his superiors what the matter was but was told nothing. That in display of utmost heartlessness and without any lawful justification, the defendant froze his bank account and placed a lien on it. That he made enquiries at head office in Lagos on 21st March 2012 only to be given the letter of termination, which was backdated to 16th March 2012. That no terminal benefit of any kind was paid to him although the letter of termination indicated that he was entitled to certain terminal benefits. That not even his salary for the Month of 2012 was paid despite working up to 16th March 2012. That his personal complaints and those through his lawyer all fell on deaf ears, hence the instant suit.
8. To the defendant, the claimant was its staff for four (4) years from 16th April 2008 to 16th March 2012, and at the time of his termination he was an Executive Trainee. That shortly before the claimant’s termination, the claimant was transferred by the defendant to Awka as a Regional Security Officer of the defendant’s South East Region 1. That the claimant alleged that the defendant terminated his appointment contrary to the provisions of its staff handbook as he is entitled to six (6) months’ notice prior to termination or salary in lieu of such notice, which was not paid to him together with his terminal benefits. The defendant in response refuted the allegations as contained in the statement of facts and stated that the claimant is not entitled to any terminal benefits. Also that by March 2012, the claimant was indebted to the defendant to the tune of N310,646.10k, which the claimant have refused to pay.
THE SUBMISSIONS OF THE DEFENDANT
9. The defendant submitted three (3) issues for determination to wit:
(1) Whether the claimant’s reply to statement of defence and defence to counterclaim is not incompetent and liable to be struck out and/or discountenanced by the Court.
(2) Whether the claimant is entitled to receive the sum of N21,827,093.50k as special damages or any sum as general damages for wrongful termination of employment as claimed.
(3) Whether the defendant has established its counterclaim and thereby entitled to judgment in the sum of N310,646.10k (Three Hundred and Ten Thousand, Six Hundred and Forty-Six Naira, Ten Kobo) having regard to the uncontroverted evidence of the defendant’s witness.
10. On issue (1), the defendant submitted that it filed and served its statement of defence and counterclaim sometime in September 2014 but the claimant did not file his reply to statement of defence and defence to counterclaim until 4th Feb 2015 (five (5) months late). That the claimant belatedly filed both his reply to statement of defence and defence to counterclaim as well as his 2nd written deposition sworn to on 4th February 2015. That surprisingly, the claimant did not file any application to regularize either his reply to statement of defense and defence to counterclaim or the 2nd witness statement on oath in response to the defendant’s counterclaim, which were both filed out of time (five months after receipt of the statement of defence). In this context, that it trite that a counterclaim is a separate cross action, independent of the original action, citing Dabup v. Kolo [1993] 9 NWLR (Pt. 317) 254 at 270 and 281, Ogbonna v. AG Imo State [1992] 1 NWLR (Pt. 220) 647 at 675, Order 15 Rule 2(4)(c) and Order 30 Rule 2(2) of the NICN Rules 2017.
11. That although the NICN Rules 2007 set no time limit for a claimant to file a reply, they provide in Order 15 Rule 2(5) thus:
Where Claimant intends to defend a counterclaim or set off, the Claimant shall file a defence to the counterclaim or set off within seven (7) days of receipt of the counterclaim and/or set off.
The defendant also referred to Order 33 Rule 2 of the NICN Rules; then submitted that the claimant’s reply to statement of defense and defence to counterclaim, and the 2nd witness statement on oath sworn to on 4th February 2015 are not properly before the Court and, therefore, amount to incompetent processes.
12. The defendant went on that since this issue bothers or relates to the claimant’s pleadings, it means that since there is no valid defence to the counterclaim, the claimant has failed to join issues with the defendant on the counterclaim. That the defendant’s argument is predicated on the trite law that where a party fails to join issue with his opponent upon a pleaded fact, such fact is deemed admitted; and the party making that assertion is no longer under a burden to establish such fact, citing Olade v. Ekwelendu [1989] 20 NSCC (Pt. III) 118 at 168, Anaeze v. Anyaso []1993] 5 NWLR (Pt. 291) 1 at 26, Achimugu v. Minister FCT & anor [1998] 11 NWLR (Pt. 574) 467 at 477 and Akpaji v. Udemba [2009] All FWLR (Pt. 471) 831. That since facts admitted need no further proof, the defendant need not prove any allegation contained in its counterclaim and is, therefore, entitled to judgment, citing Dabup v. Kolo (supra) at 281. Ordinarily, that the claimant (sic) is entitled to file a reply to the defence to counterclaim, but since the claimant failed to file a valid defence to counterclaim, it would amount to gross injustice and irreparable injury to the defendant if the invalid defence to counterclaim is allowed to stand since the defendant would be denied of its right of reply to the claimant’s defence to counterclaim and/or further witness deposition and additional exhibits. That the object of pleadings is to prevent a party from being taken by surprise and to ascertain with as much certainty as possible the issues in controversy between the parties.
13. The defendant further submitted that the claimant cannot complain of lack of fair hearing as he had the opportunity to file an application to regularize his reply to statement of defence and/or defence to counterclaim but elected not to file same. That it is trite that a person of full age and capacity can waive a right conferred upon him by statute where the right is for his sole benefit and the state has no interest. If the party sleeps on that right and allows the proceedings to continue on any irregularity to finality, then the party cannot be heard to complain at the concluding stage of the proceedings, citing Obembe v. Wemadod Estates Ltd [1977] 1 All NLR 130 at 141.
14. Also that it is trite law that evidence led upon facts not pleaded goes to issue. Thus, since the witness statement on oath sworn to on 4th February 2015 is predicated upon the facts contained in the invalid reply to statement of defence and defence to counterclaim, there is nothing to support the evidence adduced in the witness statement on oath sworn to on 4th February 2015. As a corollary, that the averments in the invalid reply to statement of defence and/or defence to counterclaim can never amount to evidence. Accordingly, the entire 2nd witness statement on oath sworn to on 4th February 2015 should be discountenanced by the court notwithstanding the witness deposition was received in evidence, citing Aregbesola v. Oyinlola [2011] 9 NWLR (Pt. 1253) 458 at 594, Ita v. Dazie [2013] All FWLR (Pt. 683) 1880 at 1891, Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 290 and Yusuf v. Oyetunde [1998] 12 NWLR (Pt. 579) 483. The defendant then urged the Court to expunge the claimant’s reply to statement of defence and defence to counterclaim, and the claimant’s 2nd witness statement on oath sworn to on 4th February 2015, which are not properly before the Court from the entire records of this Court.
15. Issue (2) is whether the claimant is entitled to receive the sum of N21,827,093.50k as special damages or any sum as general damages for wrongful termination of employment as claimed. To the defendant, it is common ground that the claimant’s appointment was terminated by the defendant on 16th March 2012; and the issue is whether this termination was wrongful. In this context, that the onus is on the employee who alleges a wrongful termination of his employment to prove same, as it is not the duty of the defendant to do so, referring to Kwara State Civil Serv. Com. v. Abiodun [2009] All FWLR (Pt. 493) 1315 at 1362, Angel Spinning & Dyeing Limited v. Ajah [2000] All FWLR (Pt. 23) 1332 at 1354 and Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 at 370. That the terms of a contract of employment are fundamental in determining whether termination of such contract is wrongful or not, citing Angel Spinning & Dyeing Limited v. Ajah (supra) at 1341 and Omenka v. Morison Industries Plc [2000] 13 NWLR (Pt. 683) 147 at 154.
16. That from the foregoing, an employee who wants to succeed in a claim for wrongful termination must prove wrongful termination by placing before the Court the terms and conditions of the contract of employment, and prove in what manner the said terms were breached by the employer. That the content of the termination letter dated March 16, 2012 (Exhibit C9) states thus: “We write to inform you that your services are no longer required”. That it is settled law that an employee (sic) reserves the right to hire and fire. Therefore, the defendant is not bound to disclose the reason for terminating the claimant’s appointment and the Court is prohibited from making speculation outside the content of the defendant’s termination letter, citing Angel Spinning & Dyeing Limited v. Ajah (supra) at 1352.
17. The defendant then referred the Court to Exhibits C1 and D5. That the claimant’s contract of employment (Exhibit C1) dealing with termination provides thus: “The Bank undertakes to give a maximum of one month notice for any termination of employment or salary in lieu thereof”. Furthermore, Exhibit D5 (PPPG) stipulates in paragraph 3.16 (Termination of Employment) as follows: “Termination of employment can either be initiated by the Bank or the employee (resignation) in accordance with the appropriate clause in the individual’s contract of service”. The defendant then contended that a combined reading and interpretation of the two (2) terms in the claimant’s contract of employment especially Exhibit C1 leaves no one in doubt as to what the parties contemplated and agreed upon at the time the contract of employment was executed by the claimant and defendant. That it is trite that parties are bound by the terms of their contract and the Court cannot re-write any contract entered into by parties, citing Omega Bank Plc v. OBC [2005] 8 NWLR (Pt. 928) 547 SC at 574 – 575. That the defendant cannot be held to have wrongfully terminated the claimant’s employment as claimed, since the defendant had already fulfilled their obligations to the defendant by payment of the claimant’s salary in lieu by way of set off from the claimant’s indebtedness to the defendant. That it has been clearly shown from Exhibit D3 (the claimant’s end of service statement) that the claimant is entitled to N8,971.42k as salary in lieu of notice but after computation of Exhibit D3, the claimant was indebted to the defendant in the sum of N310,646.10k as per the counterclaim. The defendant then urged the Court to hold that the termination of the appointment of the claimant was not wrongful on the basis of the above submissions and upon judicial authorities which stipulates remedies for wrongful termination. Thus, the remedy of the claimant is a claim for damages and no more i.e. one (1) month’s salary in lieu of notice; citing Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 at 394, Kabelmetal Nig. Ltd v. Ativie (supra) at 674 (incomplete citation) and Angel Spinning & Dyeing Limited v.. Ajah [2000] All FWLR (Pt. 23) 1332 at 1342.
18. That having established that the termination of the claimant’s appointment was not wrongful, the entire claim for damages whether general or special cannot succeed. However, that assuming (without conceding) that the termination was wrongful, the claimant cannot be entitled to damages as the claimant did not present credible evidence to prove his current monetary conditions of service. In this regard, that Exhibit C3 (Memo for Notch Increment dated 20th June 2011), Exhibit C6 (Performance Appraisal remark), Exhibit C7 (Redeployment Memo of 29/2/2012), Exhibits C10, C13, C14 and C15 (the claimant’s statement of account), and Exhibit C16, (Telephone sms alerts) are all worthless pieces of documentary evidence as they are unsigned documents generated from a computer or electronic devices which makes their origin doubtful in terms of its maker, citing Omega Bank Plc v. OBC [2005] 8 NWLR (Pt. 928) 547 SC at 581. In addition, that the unsigned documents, generated from a computer, did not comply with section 84 of the Evidence Act, which in subsections (1), (2) and (4) stipulate the conditions to be satisfied before a document produced by a computer shall be admissible irrespective of whether it is relevant or not,citing P. D. Hallmark Contractors Nig Ltd & anor v. Gomwalk [2015] LPELR-24462(CA), Kubor v. Dickson [2013] All FWLR (Pt. 676) 392 at 428 – 429; [2013] 4 NWLR (Pt.1345) 534 at 577 – 578 and Omisore v. Aregbesola [2015] LPELR-24803(SC); [2015] All FWLR (Pt. 813) 1673 at 1747. That if the claimant had produced a certificate as provided in section 84(4), he would have satisfied this Court with certainty, as to the kind of device or computer that was involved in the production of Exhibits C3, C6, C7, C10, C13, C14, C15 and C16 and ensure the credibility and evidential value of such electronically generated evidence, since the Court is not a computer or information technology expert, rather than leaving the Court to speculate and conjecture about the authenticity and source of those exhibits. That a Court cannot speculate but determines cases upon credible evidence brought before it, citing Stephen Idugboe & Sons Ltd v. Ainenih [2003] FWLR (Pt. 149) 1418 at 1437 – 1438, NEC v. Wodi [1989] 2 NWLR (Pt. 104) 444 and State v. Aibangbee [1989] 3 NWLR (Pt. 84) 542.
19. The defendant went on that where inadmissible evidence is inadvertently or wrongly admitted in evidence by a trial court, the trial judge is under a duty to reject and disregard it when delivering its judgment and if he fails to do so, an appellate court will expunge it from its records, citing Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156 at 202, UBA v. Ayinke [2000] 7 NWLR (Pt. 663) 83 at 100 and BMNL v. Ola Ilemobola Ltd [2007] FWLR (Pt. 379) 1340 at 1367 – 1368. The defendant then urged the Court not to waste judicial time to look at the said exhibits for any purpose whatsoever since they are clearly inadmissible in law and ought to be rejected and discountenanced.
20. That further to the foregoing arguments, the claimant made several unsubstantiated allegations in his witness deposition sworn to on 18th June 2014, as follows:
(Para 16) – Defendant withdrew 850,000 relocation allowance from his account
(Para 20) – Defendant debited his account with N908,000
(Para 30) – Claimant expended N47,000 as hotel bills and over N800,000 as accommodation and relocation expenses
(Para 33) – That he is entitled to health insurance contribution, Pension Fund, Nation Housing Fund contribution, Unpaid March salary of N281,531.25k, relocation allowance of N850,000, hotel bill of N47,000 amongst other claims
21. That specifically, and in rebuttal of the claimant’s feeble averment in his witness deposition sworn to on 18th June 2014, the defendant produced Exhibit D2 (the claimant’s Feb 2012 pay-slip) which clearly shows the claimant’s last monthly salary before termination on March 16, 2012 to be N42,735.94k (net pay), which is consistent with the entries in Exhibit D4 (the claimant’s statement of account from Jan–March 2012) which equally shows the same figure as salary paid to the claimant on January 23 and February 22 respectively contrary to the fallacious sum of N281,531.25k as alleged by the claimant. That a cursory look at Exhibit D4 (statement of account from Jan–March 2012) shows that on March 15, 2012, the claimant was credited with N338,400 (per diem on relocation), N387,110 (relocation allowance) and N125,000 (transport on relocation) making a total of 850,510.00k. That there is nothing contained in Exhibit D4 showing a debit or withdrawal of 850,000 or 908,000 by the defendant as alleged by the claimant in paragraphs 16 and 20 of his witness deposition sworn to on 18th June 2014; more so as Exhibit D4 equally shows the claimant had access to his account as he was still making withdrawals up till 27th March 2012.
22. That the claimant alleged that he spent 47,000 as hotel bills for 5 days at N9,400 per night and N800,000 for accommodation but failed to produce any rent receipts or tenancy agreement to substantiate his claims. That Exhibit C11 (hotel receipts) shows total payment of N17,600 which contradicts his claim of N47,000 and cannot be of any assistance to the Court as the receipt dated 11/03/12 and 10/03/12 both for N4,000 did not specify the duration of stay while the receipt dated 12/3/12 for N9,600 shows the payments were for 3 nights at N3,200 per night contrary to his claims of N9,400 per night. That in the evaluation of evidence and ascribing of probative value to the pieces of evidence presented before the Court, the Court should note these irreconcilable conflicts and contradictions in the testimonies of CW, which testimonies and pieces of contradictory evidence are rather spurious and are a clear pointer that his testimony is tainted with falsehood and cannot be relied upon by the Court for any purpose. Consequently, that it is clear that the evidence of CW is so incredible, inconsistent and contradictory for the Court to rely on them, urging the Court not to attach any probative value to the evidence for being so incredible, inconsistent and ridiculous to be relied upon, citing Consolidated Breweries Ltd v. Aisowieren [2002] FWLR (Pt. 116) 959 at 987 – 988, Agbi v. Ogbeh [2006] All FWLR at 968 and Akanbi v. Alatede Nig Ltd [2000] FWLR (Pt. 11) 1928 at 1945.
23. The defendant went on that where a marker of a document is not called as a witness, a court should not attach any probative value to the document and any document without probative value is as good as a mere paper on which it is made, citing Abubakar v. Mark [2010] All FWLR (Pt. 531) 1578 at 1600 – 1601. That by way of buttressing the fact and line of argument that Exhibits C3, C10, C11, C13, C14 and C15 cannot be relied upon by the Court, the claimant did not disclose the identity or call the makers/signatories of these exhibits which he is heavily relying upon. As such, that it can be safely and conclusively presumed that these exhibits may not have even emanated from the purported makers of same since they were not called as witnesses, urging the Court to discountenance them and not ascribe any probative value or weight to them, citing Omega Bank v. OBC Ltd [2005] All FWLR (Pt. 249) 1964 at 1994, Alao v. Akano [2005] 11 NWLR (Pt. 935) 160 at 178, Musa v. State [2013] LPELR-21866(CA) and Wike Ezenwo Nyesom v. Hon (Dr) Dakuku Adol Peterside & 3 ors [2016] All FWLR (Pt. 842) 1573.
24. The defendant continued that in paragraph 9 of the DW’s deposition sworn to on 28th August 201, the defendant rebutted the claimant’s claim for severance benefits of N3,378,375.00; more so, as Exhibit C3 upon which the claimant based his computation is an unsigned worthless piece of document.
25. That it is imperative to point out that the unsubstantiated evidence of CW in respect of his National Housing Fund contributions, Pension Fund contribution and Health Insurance Scheme were vehemently challenged and contradicted by DW who produced Exhibits D10 and D11, and Exhibits D13 and D14 produced by the subpoenaed witness which clearly show the exact monthly contributions and balance standing to the claimant’s credit as at the date of termination. That a quick glance at Exhibit D13 shows the defendant made its contribution to the claimant’s Pension Fund Administrator as stipulated by law up till February 2012, while Exhibit D14 shows that the claimant began making withdrawals from his Pension Fund Account since 13th August 2015. That it is, therefore, amazing that the claimant would still claim his pension fund from the defendant when he knows and has already taken benefit from the custodian of his pension funds.
26. To the defendant, from the evidence adduced, the claimant has not proved he is entitled to payment of the alleged amount claimed in paragraphs 24 & 26 of the statement of facts dated 18th June 2014 and as alleged in paragraph 33 of the witness statement on oath sworn to on 18th June 2014, citing Obasuyi v. Business Ventures Ltd [2000] FWLR (Pt. 10) 1722, which held that with regard to the award of special damages, this must be pleaded and particularized, and proved strictly by credible evidence. That pleadings do not amount to evidence, citing Agbi v. Ogbe [2006] All FWLR (Pt. 329) 941 at 985. As such, that in the instant case it is impossible for the Court to adjudicate in favour of the claimant in the absence of credible evidence of the alleged special damages as it is not the duty of the Court to speculate. That the evidence adduced by the claimant is preposterous, unreliable and merely speculative in nature and is not conclusive proof, without more, of the facts alleged and cannot by any stretch of imagination entitle the claimant to any amount as claimed from the defendant, urging the Court to resolve issue (2) in favour of the defendant.
27. Issue (3) is whether the defendant has established its counterclaim and thereby entitled to judgment in the sum of N310,646.10k. The defendant contended that the uncontroverted averments in paragraphs 1 – 5 of the defendant’s counterclaim and the failure of the claimant to file a valid defence to the counterclaim, shows that there is no dispute at all between the parties as to whether the claimant is indebted to the defendant to the tune of N310,646.10k as claimed in the counterclaim. That the evidence before the Court (paragraphs 11 to 18 of the defendant’s witness deposition on oath) shows how the claimant’s indebtedness arose which the claimant never disputed. Moreover, that the evidence adduced by the defendant and admitted by the Court i.e. Exhibits D1, D2 and D3 has not been disputed as the evidence adduced remains unchallenged and uncontradicted.
28. To the defendant, the claimant’s end of service statement (Exhibit D3) when read together with paragraphs 3 of the claimant’s contract of employment/condition of offer (Exhibit D1) speak for themselves and they clearly support the defendant’s averment that the claimant’s indebtedness arose out of advance payment made to the claimant whose contract of employment clearly shows that he was entitled to be paid in arrears monthly. That according to the Black’s Law Dictionary, 9th Edition, an advance payment is a payment made in anticipation of a contingent or fixed future liability or obligation. That from the itemized content of Exhibits C1 and D1 it is clearly shown what the claimant was entitled to annually, monthly, what he claimed, what he had earned whilst he remained a staff of the defendant. As a corollary, that Exhibit D1 clearly illustrates what the claimant claimed and what he was given as advance payment in anticipation that he would earn what he had already received by completing an annual circle in the employ of the defendant/counterclaimant. In this regard, the defendant referred to paragraphs 7.4 7.4.1, 7.4.2 and 7.4.5 of Exhibit D5 (PPPG), which clearly illustrates the counterclaimant’s policy on advance payment in respect of Housing Allowance, Transport Allowance, Furniture Allowance, Dressing Allowance, etc. That the policy clearly states that an employee is entitled to a maximum of twelve (12) months on request and the advance shall be amortized over the period of the advance cover. While Exhibit D4 shows an upfront housing advance payment of N715,375.28 was made to the claimant on 3rd June 2011, an upfront furniture allowance of N168,923.37 was paid to the claimant on 1st July 2011. That there is no provision in Exhibits C1 or D1 which stipulates or entitles the claimant for such payment as a gratuitous payment or work incentive.
29. The defendant continued that where credible evidence is unchallenged and uncontradicted by a party who has opportunity of doing so, such evidence ought to be accepted by the Court and acted upon as the Court has no option, citing Durosaro v. Ayorinde [2005] All FWLR (Pt. 260) 167 at 182, Niko Engineering Nig Ltd v. Akinsanya [2005] FWLR (Pt. 284) 272 at 309 – 310, Kuti v. Alashe [2005] All FWLR (Pt. 284) 372 at 392 – 393 and Bossa v. Julius Berger Plc [2005] All FWLR (Pt. 290) 1503 at 1516 and 1519. That in Obasuyi v. Business Ventures Ltd (supra) 1722 at 1734 the apex Court held that where evidence is unchallenged without more it would constitute sufficient proof of special damage especially where such evidence makes precise calculation possible. That it is settled law that facts admitted need no further proof, citing section123 of the Evidence Act 2011. In other words, that the claimant by his failure to file a defence to the counterclaim is deemed to have admitted the facts in the counterclaim which is receivable against the claimant thereby waiving proof, dispute or controversy, citing Akaninwo v. Nsirim [2008] All FWLR (Pt. 410) 610 at 633, Nwankwo v. Nwankwo [1995] 5 NWLR (Pt. 894) 153 and Owosho v. Dada [1984] 7 SC 149 at 163. The defendant accordingly submitted that since it is clear from the evidence before the Court that it is not disputed that the claimant is indebted to the defendant, in the sum of N310,646.10k as contained in the counterclaim, the Court should enter judgment in favour of the defendant as per its counterclaim. In conclusion, the defendant urged the Court to dismiss the claimant’s case with substantial cost and grant its counterclaim.
THE SUBMISSIONS OF THE CLAIMANT
30. To the claimant, from the pleadings and evidence led on both sides, the following facts are undisputed and are commonly accepted as true by the parties:
a) That the claimant was employed by the defendant as Regional Security Officer by virtue of the letter of employment dated April 7, 2008 (Exhibit C1).
b) That his appointment was confirmed with effect from October 16, 2008 by virtue of the letter of confirmation of appointment dated May 16, 2009 (Exhibit C2).
c) That the claimant’s total annual salary package as at March 2012 was N3,378,375.00 by virtue of Exhibit C3.
d) That the claimant’s employment is governed by his letter of employment (Exhibit C1), letter of confirmation of appointment (Exhibit C2), Memo for Notch Increment (Exhibit C3), and the defendant’s Staff Handbook (Exhibit C4).
e) That the claimant served the defendant diligently and faithfully and was rewarded with promotions in acknowledgment of his faithful service as is evidenced by Exhibits C3, C5 and C6 respectively.
f) That his employment was terminated without notice or salary in lieu of notice on March 16, 2012 by virtue of Exhibit C9.
31. In addition, the claimant submitted that the following facts are undisputed and were admitted by DW1 under cross-examination:
i) That the defendant transferred the claimant to the South East Region in February 2012.
ii) That the transfer was at the instance of the defendant bank.
iii) That the claimant proceeded on the transfer and resumed work in the South East Region immediately.
iv) That the transfer was supposed to be accompanied by the payment of relocation allowances in accordance with the contract of service.
v) That the claimant was entitled to the allowances.
vi) That as at March 12, 2012 the defendant did not pay, and has not paid the relocation allowance to the claimant.
vii) That the defendant terminated the claimant’s employment on March 16, 2012.
viii)That it did not give prior notice of the termination or salary in lieu of notice before the termination.
ix) That the defendant deducted various sums of money from the claimant’s salary and allowances and placed a lien on his personal bank account.
x) That the lien the defendant placed on the claimant’s account is still in place and has not been removed.
xi) That the defendant did not pay, and has not paid the claimant any terminal benefits, not even his salary for the month of March 2012 when his employment was terminated.
32. The claimant then submitted four issues for termination, namely:
(1) Whether the termination of the claimant’s appointment is in accordance with the terms of his contract of employment.
(2) If issue (1) above is answered in the negative, whether an order of reinstatement ought not to be made in favour of the claimant in the circumstances of this case.
Alternatively
(3) Whether on the pleadings and evidence, the claimant ought not to be entitled to the reliefs sought in this suit.
(4) Whether, having regard to the nature of the counterclaim, the documentary and oral evidence before the Honourable Court, the defendant/counterclaimant is entitled to the reliefs sought in the counterclaim.
33. On issue (1), the claimant submitted that under Nigerian law, all that the plaintiff is required to prove in a case of wrongful dismissal is that he is the defendant’s employee, the terms and conditions of the employment contract, and that he has been dismissed in a manner inconsistent with the terms of the employment contract, citing Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 SC, Iwuchukwu v. Nwizu [1994] 7 NWLR (Pt. 257) 379, 412 CA, Ningi v. First Bank of Nigeria Plc [1996] 3 NWLR (Pt. 435) 220 CA, Afribank (Nig) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 598 CA and Texaco (Nig) Plc v. Kehinde [2001] 6 NWLR (Pt. 708) 224 CA. That to prove this, he invariably has to rely on the contract of employment. Thus he put in evidence his letter of employment (Exhibit C1), the letter of confirmation of appointment (Exhibit C2), Memo for Notch Increment (Exhibit C3), the defendant’s Staff Handbook containing the terms and conditions of service (Exhibit C4) and other service documents as the documents regulating his employment. That he also put in evidence Exhibit C9, the letter of termination of his employment dated March 16, 2012. That there is, therefore, no dispute between the parties on these facts.
34. To the claimant, the question is whether the claimant’s employment was determined in accordance with the provisions of the contract of employment. That parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous, citing UBN v. Soares [2012] 11 NWLR (Pt. 1312) 550. That where there is a written contract of employment, it is outside the province of the Court to look anywhere for terms of termination of the contract, other than in the written contract, citing Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 at 405. That the importance of the terms of a contract of service in determining the question of termination of the contract was emphasized in Ifeta v. Shell Pet. Dev. Co. Ltd [2006] 7 MJSC 121 at 133.
35. The claimant then drew attention to Exhibit C4, the defendant’s staff handbook, which specified the grounds on which an employee’s employment may be terminated. Clause 7.3 at page 22 of Exhibit C4 provides as follows:
7.3. An employee’s appointment may be terminated on any of the following grounds:
(i) Malingering (i.e. Pretending illness in order to avoid work)
(ii) Regular Absenteeism
(iii) Habitual Lateness
(iv) Unsatisfactory performance (based on performance appraisal)
(v) Rudeness to any of the Bank’s customers
(vi) Drawing of cheques on unfounded accounts
(vii) Insubordination, insolence or any other form of unsatisfactory conduct
(viii) Refusal to work or carry out lawful instructions
(ix) Engaging in any business that conflicts with the Bank’s interest
(x) Commission of any other offence of similar gravity as those described above.
36. In addition, that page 1 of Exhibit C1 provides as follows: “The bank undertakes to give a maximum of one month notice of any termination of employment or will pay salary in lieu thereof”. To the claimant, from the combined reading of Exhibits C1 and C4, there is no doubt that the only agreed grounds on which the claimant’s employment may be terminated are: 1) that the claimant has been guilty of the misconducts contained in clause 7.3 of the terms of contract; and 2) that notice of the termination or salary in lieu of notice has been given to him. That there is, however, unchallenged and uncontroverted evidence before the Court that the claimant was not given notice of the termination or salary in lieu and is not guilty of any of the misconducts in clause 7.3 of Exhibit C4. That there is, in fact, no allegation of misconduct against the claimant and the claimant’s testimony that he was diligent, earned promotions and was never once queried or found wanting in the discharge of his duty is uncontroverted. DW1 himself confirmed this when he admitted under cross-examination that “promotion is indication an employee is serving diligently”.
37. The claimant went on that a duty is therefore cast on the defendant to give a reason why it terminated the employment of such a faithful employee who had just been recommended for promotion by virtue of Exhibit C6 and who had just resumed duty in the new place of transfer. That this is in line with international best practice which this Court is enjoined to enforce by virtue of section 7(6) of the National Industrial Court (NIC) Act 2006 and section 254C(1)(f) and (h) of the 1999 Constitution. That the position clearly is that in cases of dismissal or termination of appointment of workers in circumstances such as in the instant case a reason or justification for the termination must be given. Failure of the employer to disclose a reason should attract steep damages against the employer, referring to Afolayan Aderonke v. Skye Bank unreported Suit No. NICN/IB/08/2015, the judgement of which was delivered on 17 May 2017 in which this Court reiterated the new dispensation in the determination of employment contracts. That is, that employees can no longer be lightly discarded (for good, bad or no reason at all) as employers are now required to give valid reasons for determination of the employments of their employees. Also referred to is Mr Ebere Onyekachi Aloysius v. Diamond Bank Plc [2015] 58 NLLR 92; and the Termination of Employment Convention 1982 (No. 158) and Recommendation No. 166 of the International Labour Organisation (ILO) to the effect that employers should give valid reasons for the determination of the employment of their employees. That whilst the Convention is not yet ratified by Nigeria, this is the current international best practice that the Court is enjoined to observe by virtue of section 7(6) of the National Industrial Court of Nigeria Act, 2006 and section 254C(1)(f) and (h) of the 1999 Constitution.
38. The claimant continued that the wrongfulness of the termination is further accentuated by the inhuman manner it was executed. That the defendant waited for him and his family to relocate to the new place of transfer before it struck. No relocation allowance was paid. No provision was made for the claimant and his family. To complete the fiendish design, that the defendant unjustifiably froze the claimant’s personal bank account. The claimant conceded that a master can terminate the employment of his servant at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract of employment, citing Osisanya v. Afribank Nig. Plc [2006] 1 NWLR (Pt. 1031) 565 SC. That where, however, a contract contains a provision that either party thereto may determine it by specified notice or payment of prescribed sum of money in lieu thereof, such notice or payment as the case may be must be complied with in strict accordance with the terms of contract. Put differently, that where the right to determine the contract by notice depends upon the performance of a condition precedent, the party seeking to exercise his right of determining the contract must first establish that the prescribed condition precedent was fulfilled, citing Re African Association Ltd and Allen [1910] 1 KB 396, which held that employers could not, in the absence of agreement, terminate the engagement without reasonable notice. That Exhibits C1 and Exhibit C4 require the defendant to give prior notice of termination; but none was given. No salary in lieu of notice was given. The claimant then urged the Court to hold that the claimant is entitled to notice of his termination or salary in lieu of notice. Finally, that the failure to give prior or valid notice of termination renders the termination wrongful and invalid, citing BCC v. Ager [2010] 9 NWLR (Pt. 1199) 292. That the termination is not consistent with the terms of the contract of employment, the Labour Act and international best practices, urging the Court to so hold.
39. If issue (1) above is answered in the negative, the claimant’s issue (2) is whether an order of reinstatement ought not to be made in his favour in the circumstances of this case. To the claimant, a review of the unjust and unfair manner his employment was terminated justifies the prayer for an order of reinstatement to be made in favour of the claimant. This is because reinstatement is one of the remedies open to a victim of unjust or unfair dismissal or termination, citing University of llorin v. Obayan [2018] LPELR-43910(SC), Sadik v. Bundi [1991] 8 NWLR (Pt. 210) 443 at 557 and Federal Medical Centre, Ido-Ekiti & ors v. Folorunsho Kayode Michael [2012] LPELR-20406(CA). That the prevailing view is that the relief of reinstatement is only available for a confirmed pensionable employee whose contract is spiced with statutory flavour or who occupies a position with a special legal status, citing Shuaibu v. Union Bank of Nig. Plc [1995] 4 NWLR (Pt. 388) 173 at 181. That for employees in private employment, reinstatement is only ordered when the employee is able to prove special circumstances, citing Chukwumah v. Shell Petroleum Devt. Co. of Nig. Ltd [1993] 4 NWLR (Pt. 289) 512 at 539; and it is at the discretion of the Court. That this view is founded on the statement of Fry J in De Francesco v. Barnum [1890] 45 Ch.D 430 at 438 to the effect that the court will not force a willing employee on an unwilling employer; and vice versa.. However, that recent decisions of the courts in favour of the employees in Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 2 SC and Jennifer Adighije-Okolo v. Helios Towers Nig. Ltd (citation not supplied) suggest a shift and indicate the applicability of a reinstatement order in the private sector. That in Longe, the Supreme Court interpreted the order of reinstatement to mean a reinstatement back into office till the day of the judgment. Hence, the plaintiff was entitled to all benefits which accrued to his office till the day of judgment. That the latter case of Jennifer Adighije-Okolo, although not an employment spiced with statutory provisions, was nonetheless decided along the same lines as in Longe. That this Court (per Obaseki-Osaghae J) gave a reinstatement order owing to the special features the contract of employment possessed. The claimant was held to be entitled to all her benefits till the date of judgment.
40. The claimant proceeded that it is thus not correct to assert that an order of re-instatement is inapplicable to private employment. That all that is required is for the applicant to show that his case possesses special or extra-ordinary circumstances which will make the order of reinstatement an appropriate remedy. That what would be considered as special circumstances are not exhaustive and depend on the facts of each case, citing Chukwumah v. Shell Petroleum Devt Co of Nig Ltd [1993] 4 NWLR (Pt. 289) 512 at 539 and Afribank (Nig) Plc v. Nwanze [1998] 6 NWLR (Pt. 553) 283 at 296. The claimant then submitted that his case possesses such special or extra ordinary circumstances, namely:
(1) The termination is unfair on procedural grounds. It was conducted without fair enquiry and in gross violation of the contract of service.
(2) There is no valid termination. No salary in lieu of notice and no terminal benefit of any kind was given along with the letter of termination. The implication is that the claimant is still in the defendant’s employment in the eyes of the law, citing BCC v. Ager [2010] 9 NWLR (Pt. 1199) 292. That the law is trite that for termination without notice to be effective, salary in lieu of notice must be given contemporaneously with the letter of termination. If an employer elects to terminate an employee with salary in lieu of notice, the payment cannot be deferred until sometime later, citing Oyelude v. Central Bank of Nigeria [1977] 4 CCHCJ 685 and Chukwumah v. Shell Petroleum Devt Co of Nig Ltd [1993] 4 NWLR (Pt. 289) 512 at 537.
(3) It will be unjust and unfair to allow the termination to stand on the principle of legitimate expectation. The claimant had legitimate expectation of serving till retirement. He was never guilty of any misconduct and did not contribute to his termination. The termination is the more reprehensible when it is realized that the defendant prised away the claimant from his secured civil service job only to prematurely terminate his employment a few years later.
(4) The claimant will suffer disproportionate hardship if not reinstated. The claimant has been rendered penniless by the loss of his employment. His health is already affected. The claimant has shown in his evidence that his chances of securing another employment is slim or non-existent on account of his age and the odious manner his appointment was terminated.
(5) Finally, the reinstatement order sought is just and practicable. The defendant is a large organization with thousands of employees and would not be inconvenienced by the reinstatement of the claimant.
41. The claimant went on that the view that re-instatement is an alien relief in private employment is not well founded. That the decision in other common law jurisdictions such as the United Kingdom and India does not support the attitude. That the Indian Supreme Court awarded the remedy of reinstatement in Provincial Transport Services v. State Industrial Court [1963] SC 114-116 where the Court said that although the Court must recognize legal relationship based on contracts, this is regulated by a higher law. In the words of the Court:
In dealing with industrial disputes the Supreme Court, by a series of decisions laid down by the law, says that, even though under contract law, pure and simple, an employee may be liable to dismissal without anything more, industrial adjudication would set aside the order of dismissal and direct re-instatement of the workman when dismissal is made without fair enquiry.
42. Likewise, that in Hill v. C. A. Parsons and Co. Ltd [1971] All ER 1347 CA, the plaintiff/appellant, aged 63 had been employed as an engineer for about 35 years. He was dismissed with a month’s notice, notwithstanding that he was due to retire in two years’ time. He applied for an interim injunction to restrain the company from acting upon the dismissal notice. He failed at the trial court but succeeded at the Court of Appeal where it was held that the appellant’s case was extraordinary as he was liable to suffer disproportionate hardship if his contract was so determined.
43. To the claimant, here in Nigeria, the courts have in a number of cases ordered the re-instatement of employees in private employment, citing Africa Continental Bank Plc v. David O. Nwodika [1996] 4 NWLR (Pt. 443) 470 at 483, Hotel and Personal Services Senior Staff Association v. Owena Hotels Limited, Akure [2005] 3 NLLR (Pt. 7) 163 and NNPC v. Petroleum and Natural Gas Senior Staff Association of Nigeria (Suit No. NICN/8/90). That in Ewarami v. ACB [1978] 4 SC 99 the Supreme Court granted a declaration that a dismissed worker is still in the employment of his employer and should be awarded substantial damage. That it is noteworthy that most jurisdictions had moved away from the days of Fry J where reinstatement was a taboo. That De Francesco v. Barnum (supra), a 19th Century case is predicated on certain premises which are no longer applicable. The English judges have departed from refraining from re-instating a wrongfully or unfairly dismissed employee. Remedies following a finding of unfair dismissal by an employment tribunal are re-engagement, re-instatement or compensation, citing Bigham and Keogh v. GKN Quickform Ltd [1992] ICR 113 where an employee working on a site was dismissed as a result of strike. Subsequently, he applied and successfully got a job at the employers head office elsewhere. He revealed his previous employment but not the dismissal. After a few weeks, the connection with the earlier dismissal was made and he was dismissed from the new position. The tribunal ordered re-instatement as the employer had constructive knowledge of the employee’s previous employment. Additionally, that the tribunal ordered reinstatement in Discount Tobacco v. Armitage [1990] IRLR 15 when a shop manager was dismissed unfairly because she asked the trade union for assistance against the management with regard to her rights. That since no valid notice was given, the Court should declare the termination wrongful and invalid and to order re-instatement in favour of the claimant. That this will be in accord with the position of the law that a notice not complying with the pre-agreed formalities amount to a mere offer, citing Honk Sawmill Nigeria Ltd v. Holt [1992] 4 NWLR (Pt. 238) 673 and 681 and Shell Development Devt Co Nig. Ltd v. Ifeta [2001] 11 NWLR (Pt. 724) 473 and 484. That the failure to give prior notice is wrongful and a gross violation of the terms of the claimant’s employment; referring to BCC v. Ager [2010] 9 NWLR (Pt. 1199) 292.
44. Issue (3) is whether, on the pleadings and evidence, the claimant ought not to be entitled to the reliefs sought in this suit. The claimant answered that he is entitled to the reliefs sought in this action having placed cogent, credible and unchallenged evidence before the Court. That in paragraphs 26(6)(a) – (j) of his statement of facts, he pleaded with particularity facts in support of his N21,827,093.50 claim as special damages. In paragraph 33 of his statement on oath dated 18th June 2014, he demonstrated that his entitlements at the time of the termination included:
(a) N3,378,375.00 Entitlements and Allowances unpaid as at March 2012;
(b) Health Insurance Scheme contribution of N400,000.00 from 2008 – 2012;
(c) Pension Scheme Contribution of N700,000.00 by the claimant from 2008 – 2012;
(d) Pension Scheme Contribution of N700,000.00 by the defendant from 2008 – 2012;
(e) National Housing Fund Contribution of N240,000.00;
(f) Unpaid Salary of N281,531.25 for the month of March 2012;
(g) 6 Months Salary of N1,689,187 in lieu of notice;
(h) Relocation Allowance of N850,000.000;
(i) Hotel Bill of N47,000.00;
(j) N58,0000.00 deducted from his account;
(k) N600,000.00 Rent for Accommodation in Awka, Anambra State; and
(l) Severance Benefit of N13,513,5000.00 in accordance with clause 3.8 of Exhibit C4.
45. To the claimant, the above pieces of evidence are unchallenged and uncontroverted. They must therefore be taken as having been admitted by the defendant. That the courts have in a plethora of cases held that unchallenged or uncontroverted evidence will be deemed admitted and the Court can rely on same, citing Obike v. LPDC [2005] 15 NWLR (Pt. 949) 7 at 471 SC, Ivienagbon v. Bazuaye [1999] 4 NWLR (Pt. 620) 552, Mainagge v. Gwamma [2004] 12 MJSC 34 at 45, Ebeiwe v. The State [2011] 7 NWLR (Pt. 1246) 402 at 408, Adim v. NBC Ltd [2010] 9 NWLR (Pt. 1200) 543 at 549 and Asafa Foods Ltd v. Alraine Nig. Ltd [2002] 52 WRN 1 at 5. That the credibility of the claimant’s testimony is not diminished in any way by the evidence of the witnesses for the defendant or by the exhibits tendered by the witnesses. That the defendant cannot controvert the claimant’s testimony by adducing contrary evidence, citing Borishade v. FRN [2012] 18 NWLR (Pt. 1332) 347 CA and Ofuorlete v. State [2000] 12 NWLR (Pt. 681) 415 at 439. That the failure of the defendant to cross-examine the claimant with respect to the heads of damages implies that the defendant has accepted the claimant’s evidence on the matter as the truth, citing lwuze v. FRN [2013] 1 NWLR (Pt. 1334) 119 CA and Oforlete v. State [2000] 12 NWLR (Pt. 681) 415. The claimant then urged the Court to hold that the claimant has proved his case on a balance of probabilities and is entitled to the reliefs sought. That in any matter where the defendant fails to cross-examine the plaintiff, the onus of proof on the plaintiff is discharged on a minimal of proof, citing Bua v. Dauda [1999] 12 NWLR (Pt. 629) 59 at 62 and Baba v. Nigerian Civil Aviation Training Centre [1991] 5 NWLR (Pt. 192) 388. The claimant proceeded that the defendant counsel’s attempt in his final address to disparage the quality of the claimant’s evidence on the heads of damage is misconceived and must be disregarded. That cases are decided on the evidence of the parties, not on counsel’s argument and counsel’s argument no matter how brilliant is no substitute for evidence.
46. The claimant went on that besides the claim for his unpaid entitlements, his complaint includes a claim for general damages for the injuries suffered as a result of the wrongful acts of the defendant. That general damages are such as the law will presume to be the direct natural probable consequence of the act complained of, citing Taylor v. Oghenovo [2012] 13 NWLR (Pt. 1316) 46. The claimant drew the attention of the Court to paragraphs 17 to 30 of his statement on oath dated 18th June 2014 respecting the wrongful, inhuman, injurious and degrading manner the defendant terminated his employment, deducted his salaries and allowances and restricted his access to his bank account. That these facts are undisputed and DW1 admitted under cross-examination that the restriction on the claimant’s account is still in place more than seven (7) years later. The claimant then urged the Court to hold that the continuous restraint on his account is unlawful, unfair and oppressive and to award punitive damages against the defendant. That by its action, the defendant has unjustifiably subjected the claimant and his family to pain, suffering, humiliation, penury and extreme hardship.
47. The claimant continued that the award of special damages should not be a bar to the grant of general damages in his favour, citing E. B. Plc, Awo Omamma v. Nwokoro [2012] 14 NWLR (Pt. 1321) 488.
48. On the quantum of damages, the claimant urged the Court to be guided by its previous decisions in Mrs Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012 and Mr John Muir v. Batelitwin Global Services Limited unreported Suit No. NICN/LA/151/2011, where this Court awarded damages far above the period of notice stipulated in the contract of employment.
49. The claimant submitted that if for any reason the Court is not minded to order reinstatement, the Court should grant reliefs (1), (2), (4), (5), (6), (7) and (8) sought by the claimant in this suit. That this is the more imperative as the claimant’s employment has not been validly terminated owing to the defendant’s failure to give notice of termination or salary in lieu of notice.
50. The claimant also urged the Court to award general damages for loss of expectation; and that the claimant has satisfied the conditions for the grant of the award. That by the terms of the contract of employment between the parties, the defendant has given a firm commitment to have the claimant in its employment provided the claimant is not guilty of the misconducts specified in the contract of employment. That this, therefore, creates a legitimate expectation on the part of the claimant that he would remain in the defendant’s employment until retirement so long as he is not guilty of any misconduct. That the loss of this legitimate expectation should attract hefty damages in favour of the claimant. That having shown that the claimant’s termination was carried out without notice and in violation of the terms of the contract of employment, it means that there was no termination in the eyes of the law. The claimant’s employment in the eyes of the law is continuing. This means that he is entitled to the payment of his salary and allowances from March 2012 up to the date of judgment. That by Exhibit C3 (Memo for Notch Increment dated 20th June 2011) attached to the complaint, the claimant’s salary was increased from N2,720,000.00 to N3,378,375.00 per annum or N281,531.2k per month when pro-rated. That the internal memo of 20th June 2011 is sufficient evidence as to the last monthly salary of the claimant. This means that the claimant is entitled to be paid his monthly salary at N281,531.2k per month together with the allowances for all the period from 16th March 2012 to the date of judgment, urging the Court to so hold.
51. Issue (4) is whether having regard to the nature of the counterclaim, the documentary and oral evidence before the Court, the defendant/counterclaimant is entitled to the relief sought in the counterclaim. The claimant answered in the negative. To the claimant, he was the counterclaimant’s employee. That by his letter of employment (Exhibit C1), his agreed salary package was N2,720,000.00 gross per annum, which salary was later reviewed upward to N3,378,375.00 per annum by virtue of Exhibit C3 (Memo for Notch Increment). That specifically, Exhibit C1 stipulates that: “Salary will be paid in arrears on the 23rd day of each month. Should this fall on a Saturday, Sunday or a public holiday, the bank will pay salary on the preceding working day”. That there is no provision in Exhibits C1 (Letter of Employment), C2 (Confirmation of Employment), C3 (Memo for Notch Increment), C4 (Staff Handbook) or D5 (Personnel Policies & Procedure Guide) for the payment of upfront salaries and allowances and there is no evidence of such upfront payment before the Court. That the claimant was emphatic in his evidence that he did not collect upfront salaries and allowances, did not take a loan and is not indebted to the counterclaimant in any way. That evidence before the Court shows that the purported debt was not at any time brought to the claimant’s attention. No oral or written demand was ever made for it and no reference whatsoever was made to it in the letter of separation dated March 16, 2012 (Exhibit C9). That the claim of indebtedness is a baseless afterthought and is unsupported by cogent evidence.
52. To the claimant, in paragraphs 2, 3 and 4 of his defence to counterclaim and paragraphs 3 to 8 of the accompanying statement on oath dated 4th February 2015, he was vehement in denying the purported indebtedness. That his testimony in paragraphs 3 to 8 of his deposition is unchallenged. That Exhibits D2 (pay-slip) and D3 (End of Service Statement) are of no help to the defendant; and DW1’s testimony that the claimant had online access to the documents must be taken for what it is – a blatant falsehood. That the evidence shows that these documents were never delivered to the claimant, not even at the point of separation/termination and that the figures in the documents conflict hopelessly with the figures in Exhibit C3, referring to paragraphs 13 and 14 of the claimant’s reply to the statement of defence. Concerning the abrupt manner his employment was terminated and the lack of access to online information, the claimant referred to paragraphs 17, 18 and 23 of his statement on oath dated June 18, 2014.
53. The claimant continued that the defendant made heavy weather of its Exhibits D4 (claimant’s statement of account from January to March 2012), D5 (defendant’s Personnel Policies and Procedure Guide), D10 (defendant’s Housing Fund (NHF) Contribution), D11 (defendant’s National Housing Fund (NHS) Contributor’s Passbook) and D12 (defendant’s Retirement Savings Account Statement from Fidelity Pension Managers Ltd). To the claimant, Exhibit D5 is not applicable to the claimant. On the face of the document, it came into effect in December 2015 long after the termination of the claimant’s employment. That it is axiomatic that employees are only bound by the staff standard terms in operation at the time of the contract of employment. The terms do not have retrospective application, citing Texaco (Nigeria) Plc v. Kehinde [20011 6 NWLR (Pt. 708) 22, which held that where there are several editions of standard terms referred to in a contract of employment, the reference is taken to the edition extant at the time the contract was made.
54. Furthermore, that Exhibits D2, D3, D4, D5, D10, D11 and D12, were tendered for the purpose of establishing that the claimant is not entitled to any further benefits. They were not produced in support of the claim of indebtedness against the claimant and cannot be used for such purpose. That it is settled law that where a document is tendered for one purpose, it cannot be used for any other purpose, citing Godwin U. Odinkenmere v. Impressit Bakolori Nig Ltd [1995] 8 NWLR (Pt. 411) 52 at 67. That another reason why the Court must not ascribe probative value to Exhibits D2, D3, D4, D10, D11 and D12 is that the documents were procured during the pendency, and for the purpose of this action. This raises serious doubt about the veracity and authenticity of the documents. With particular reference to Exhibit D4, the claimant submitted that a statement of account is not sufficient proof of debt and lodgments, citing Biezan Exclusive GuestHouse Ltd v. Union Homes Savings and Loans Ltd [2011] 7 NWLR (Pt. 1246) 246. That Exhibit D4 is not credible. It does not contain entries for the deductions (furniture allowance of N134,598.00k from July 2011 to March 2012, housing allowance of N628,838.69k from June 2011 to March 2012, leave allowance of N4,037.00 from January to March 2012 and travelling/passage allowance of N197,531.28) which DW1 admits were made from the claimant’s account. Also, that DW1 is not the maker of Exhibit D4 and did not say that he personally examined the document and compared it with the original record kept by the bank as to be satisfied of its accuracy in accordance with sections 84(2) and 90(1)(e)(iv) of the Evidence Act. That DW1’s evidence as far as Exhibit D4 is concerned is at best inadmissible hearsay which should be rejected under sections 37, 38 and 83(1) of the Evidence Act. Furthermore, that the document is incomprehensible and DW1 did not offer the minutest of explanation as to how the defendant arrived at the purported N310,646.10k indebtedness. DW1 merely dumped the document on the court.
55. The claimant went on that the claim of indebtedness is baseless and the deduction of the claimant’s salary and allowances which the DW1 admitted was carried out by the defendant is unlawful and unjustifiable. That if the defendant had not wrongfully embarked on a spree of deductions of the claimant’s salaries and allowances, the fabricated N310,646.10k debt would not have arisen. That the deductions from the claimant’s account were not carried out with the claimant’s consent, referring to Omolola Shafqat Ogungbuaro v. Access Bank Plc unreported Suit No. NICN/LA/289/2014, and submitting that the defendant has no right to deduct the claimant’s salary and allowances in the manner it did. Also refer to is Shefiu Adejare v. MDS Logistics Plc unreported Suit No. NICN/LA/20/2013, which held that an employee cannot be surcharged by an employer without first being given a hearing on the issue. That there is no justification for the surcharge of the claimant’s salary and allowances.
56. Lastly, that section 5 of the Labour Act prohibits the deduction, or any agreement to deduct the wages/salaries of an employee, referring to Adebusola Adedayo Omole v. Mainstreet Bank Microfinance Bank Ltd unreported Suit No: NICN/LA/341/2012, which held that a unilateral reduction in the wages and salaries of workers is not acceptable, and that the reduction of the salary of the employee by the employer without her consent violated the spirit of both section 5(1) and the ILO Convention No. 95 (Protection of Wages Convention, 1949). The claimant then urged the Court to adopt these decisions and hold that the deduction of the claimant’s salaries and allowances by the defendant is wrongful and illegal.
57. To the claimant, the defendant lacks a cause of action. That even if the claimant was to have been paid upfront salaries and allowances as alleged, the defendant is not entitled to recover the unearned salaries and allowances. It will be double jeopardy to the claimant and double advantage to the defendant (the loss of employment, and the conversion of legitimate entitlements to a commercial loan). That this is not just inequitable but most unjust. That a party cannot be allowed to benefit from its own wrong. The fact that the defendant terminated the employment of the claimant means that it cannot lay claim to any unearned allowances it allegedly paid to the claimant. This is because, if not for the termination of the claimant appointment, he would have remained in the defendant’s employment and there would have been no duty to repay the purported unearned allowances, relying on Mrs Vivien Folayemi Asana v. First Bank of Nigeria Plc Suit No. NICN/LA/184/2016 where this Court held, in similar circumstances, that the employer could not recover the unearned allowances, urging the Court to hold that the defendant is not entitled to recover the purported unearned allowances claimed in the counterclaim. The claimant then urged the Court to dismiss the counterclaim with cost.
58. The claimant proceeded to respond to the issues raised by the defendant. On the defendant’s issue (1) as to the claimant’s reply to statement of defence, defence to counterclaim and statement on oath, all dated 4th February 2015, being incompetent on the ground that they were filed out of time, the claimant submitted that the legal authorities cited by the defendant are incontrovertible and represent the state of our law. However, that they are not applicable to the case at hand. That the relevant provision of the NICN Rules 2017 on the issue is Order 1 Rules 2, 7(3) and 8(1), which states:
2. These Rules may be cited as the National Industrial Court of Nigeria (Civil Procedure) Rules 2016 and shall come into effect on the 5th day of January, 2017
7(3). These Rules shall apply to all proceedings including part-heard causes and matters in respect of steps to be further taken in such matters for the attainment of a just, effective, efficient, and speedy dispensation of justice.
8(1). Where an action has been filed prior to these Rules and no further step has been taken other than the filing, subsequent steps in the proceedings shall be under the Rules.
59. To the claimant, a careful perusal of these provisions shows that the NICN Rules 2017 “shall come into effect from the 5th day of January, 2017” and not retrospectively as postulated by the defendant. The Rules talk of further or, subsequent steps to be taken in the proceedings, not previous steps already taken before the Rules came into effect. In addition, Order 8 Rule 1 makes the NICN Rules 2017 inapplicable where steps other than the filing of the complaint has been taken in any proceedings. That the claimant’s reply to statement of defence and defence to counterclaim were filed on 4th February 2015, two years before the NICN Rules 2017 came into effect. That other than the filing of the complaint dated 18th June 2014, several other steps had been taken in the proceedings. Trial had commenced in January 2016 and the claimant had long concluded his evidence-in-chief (on December 14, 2016) and had adopted the said processes before the NICN Rules 2017 was enacted. The NICN Rules 2017 could not, therefore, apply to the claimant’s processes. That it is worthy of note that the defendant itself conceded that the NICN Rules 2007 under which the claimant’s reply to statement of defence and defence to counterclaim were filed did not prescribe a time limit within which the processes were to be filed. That it is settled that the law that governs an action is the law at the time of filing of such an action and not the extant law prevailing after the commencement of such an action, citing Mufutau Alawode & ors v. M. A. Semoh [1959] 4 FSC 27 at 29 – 30, Orthopaedic Hospital Management Board v. Umaru Garba [2002] 12 SCM 181 and Adesanoye v. Adewale [2000] 5 SCNJ 47.
60. The claimant continued that even if the Court were to hold a contrary view, the defect is s mere irregularity that the Court can be waive, citing Order 5 Rules 1, 2 and 6(2)(a) and (b), and Order 1 Rule 9(2) and (3) of the NICN Rules 2017. Additionally, that the defendant’s objection is belated, citing Order 5 Rule 2(1) of the NICN Rules 2017, which enjoins that an objection such as that of the defendant must be made within a reasonable time. That the defendant took several steps in this matter after becoming aware of the purported defect that it must be read to have waived its right and so cannot be heard now to complain of an irregularity that is even misconceived in the first place, citing Mrs Oluchi J. Anyanwoko v. Chief Mrs. Christy O. N. Okoye [2010] Vol. 182 LRCN 106 at 109. Furthermore, that the procedure adopted by the defendant in raising its objection is wrong, citing Order 5 Rule 2(2), which requires the objection to the competence of a process to be made by summons or motion stating the grounds of objection and certainly not by way of a final address as the defendant has done. Finally, that he who comes to equity must come with clean hands. That under Order 15 Rule 1(1) of the NICN Rules 2017, the defendant had fourteen (14) days to file its defence and counterclaim. The complaint in this suit was filed and served in June 2014. The defendant did not file its statement of defence and counterclaim until the 27th August 2014 more than two months late. That going by the defendant’s argument and by virtue of the provisions of Order 15 Rule 1(1) of the NICN Rules 2017, the defendant’s statement of defence and counterclaim dated 27th August 2014 are defective and both are liable to be struck out. That this means that the defendant has no competent statement of defence or counterclaim before the Court.
61. On the defendant’s issue (2) as to the admissibility of Exhibits C3, C6, C7, C10, C13, C14, C15 and C16, the defendant had argued that they are not admissible on the ground that they are unsigned and uncertified electronic documents. To the claimant, Exhibits C3, C6 and C7 are email communications between the claimant and the defendant. That email is communication that is set down in writing. It is not oral. That the fact that it is electronic is immaterial. It can be downloaded and is as real as a hard copy of a letter or mail, citing Continental Sales Ltd v. Shipping Inc. [2013] 4 NWLR (Pt. 1343) 67 CA. Exhibit C3 is an internal memo informing the claimant of his Notch Increment. The memo is from known officials of the defendant and has the bank’s usual signature. Exhibit C5 is the Bank Quarterly Review (QPR) for the period January – June 2011. It is signed at the bottom of the first page by the defendant’s CSO, Nnachi Felix Amah and dated 29/6/11. Exhibit C6 is the Performance Appraisal Remarks for December 2011. The reviewers, Nnachi Felix Amah and Onwuka Chimaobi are the defendant’s Chief Security Officer (CSO) and Head, Corporate Services respectively and they feature prominently in other email communication between the claimant and the bank such as Exhibits C3, C7 and C8. Exhibit C7 is an internal memo attached to Exhibit C8 in the email communication of March 12, 2012 between the claimant and Olabimpe Afolabi, Human Resources Officer of the bank. The email communication centred on a familiar subject, the REDEPLOYMENT of the claimant. It bears the bank usual email address and is between the usual bank officials.
62. That the guidelines for authentication of emails as laid down in United States v. Savavian 435F Supp. 2nd 36 at 40 are:
i. That a witness or entity received the email;
ii. That the email bore the customary information in the email;
iii. That the address of the recipient was consistent with the email address on other mails sent by the same sender;
iv. That the email contains the electronic signature of the sender;
v. That the email contained matters known only to the alleged sender;
vi. That the email was in fact sent as a reply to the sender;
vii. That following the receipt of the email, the recipient communicated with the alleged sender and the conversation reflected the sender’s knowledge of the contents of the email.
63. To the claimant, Exhibits C3, C5, C6, C7, C8, and C16 are well authenticated. They are not unsigned as the documents contain the defendant’s unique electronic signature. They are not strange and the contents of the electronic communication are known to, and admitted, by the defendant. Nor did the defendant deny their authenticity or object to their admissibility at the trial. With respect to certification, the claimant referred to Order 5 Rule 6(2)(a) and (b) and Order 1 Rule 9(3) of the NICN Rules 2017 and submitted that this Court has the power to: regulate its procedure and proceedings as it may think fit in the interest of justice and fair play, and in appropriate circumstances, to depart from the Evidence Act as provided in section 12(2)(b) of the National Industrial (NIC) Act 2006 in the interest of justice, fairness, equity and fair-play. That the certification of computer documents is a rule of evidence introduced by section 84 of the Evidence Act 2011. That without any question, this Court has the power to depart from the aforesaid rule of evidence to admit a computer document that is not certified in the interest of justice and fair-play.
64. In any event, that the defendant’s objection is belated, without merit and procedurally wrong. That the objection was not raised within 14 days as stipulated under Order 2 Rule 11(2) and(3) of the NICN Rules. The defendant must thus be taken to have waived its right to object to the admissibility of the documents.
65. As to the proper person to tender the documents, the claimant submitted that the documents are relevant; and relevancy is the key to admissibility. Furthermore, that the evidence shows that the claimant is a party to the documents and was in proper custody of the documents. He could, therefore, tender the documents in evidence himself without the need to call the makers, citing Udo v. Eshiet [1994] 8 NWLR (Pt. 363) 483. That the proviso to section 83(1)(b) and (2)(a) of the Evidence Act 2011 allows documents to be tendered by persons other than their makers, citing Udo v. Eshiet (supra) and Obembe v. Ekele [2001] 10 NWLR (Pt. 722) 677 at 693 – 694.
66. As to whether there are contradictions in the claimant’s evidence, the claimant submitted that the defendant failed to point out where the alleged contradictions lied or the manner in which the evidence contradicted each other; and that even if there are contradictions, they are minor and do not affect the fundamental issues in the suit, citing Oladipo v. Moba LGA [2010] 5 NWLR (Pt. 1186) 117.
67. The claimant went on that the defendant did not cross-examine him with regard to his claim of entitlement to the refund of his withheld N850,000.00 relocation allowance, N908,000.00 and other sums deducted from his salaries, his Pension Fund and National Housing Contributions, his unpaid March 2012 salary of N281,531.2k and his N47,000 hotel accommodation and feeding bills and so it cannot discredit his testimony by adducing parallel evidence through its witnesses. Furthermore, and contrary to the defendant’s argument, that what the claimant consistently said in his evidence is that the defendant terminated his appointment without notice, withheld his relocation allowances, made deductions from his salary and allowances and placed a lien on his bank account – facts which DW1 admitted under cross-examination.
68. On the length of notice to which the claimant is entitled for the purpose of measuring the quantum of damages, the claimant submitted that the stipulated length of notice in a contract of employment is a species of a limiting clause. That it has been said that limiting clauses are legislative codes or bye-laws, not contractual terms and should be viewed with great caution, referring to Devlin, P. – The Enforcement of Morals (Oxford University Press), 1965 at page 50. That since employees or a group of them rarely make input into these employment contracts, the effect of upholding this limiting clause is to hoist employers above the common law. That where an employer terminates an employee’s contract in an unfair manner, he should not be allowed to rely on the contractually stipulated length of notice. If an employer has been dishonest or dishonourable in his treatment of an employee, the Court should turn him away from relying on the limiting clause. That the Court should apply the broadly stated dictum of Scutton, LJ in Gibaud v. Great Eastern Ry [1921] 2 KB 510 at 535:
The principle is well known…that if you undertake to do a thing in a certain way…with certain conditions protecting it, and have broken the contract by not doing the thing contracted for in the way contracted for…you cannot rely on the conditions which were only intended to protect you if you carried out the contract in the way in which you had contracted to do it.
That Olagunju, JCA echoed the foregoing view in International Messengers (Nigeria) Ltd v. Pegofor Industries Ltd [2000] 4 NWLR (Pt. 651) 242 at 249 when he stated that:
Self-limiting of liability in a contractual obligation implied by exclusion is an arrangement of uberrima fides that can only thrive on good faith where the appellant is shown to have discharge her duty by exercising utmost care to execute the contract but failure of which equity may interpose to correct inequalities and adjust matters according to the plain intention of the parties.
69. The claimant then urged the Court apply Shobowale v. United Bank of Nigeria Ltd [1976] 5 CCHCJ 1409 where the plaintiff who had worked for seventeen years had a mild stroke from which he recovered and resumed duty after sick leave. He challenged the retirement and Agoro, J awarded him a year’s salary even though the contract of employment stipulated two weeks’ salary in lieu of notice. And British Airways v. Makanjuola [1992] 8 NWLR (Pt. 311) 276, where the contract provided that the employee was entitled to two months’ salary in lieu of notice. Rather than give notice, the employer paid the employee two months salary in lieu of notice. The Court of Appeal held that the contract must be construed strictly against the employer and proceeded to award two years salary as general damages.
70. Concluding, the claimant submitted that the above submission applies with equal force to qualification for gratuity/severance package. That the claimant is able and willing to work and would have continued beyond the stipulated number of years required if not for the unfair termination. As such, the defendant should not be allowed to rely on its breach to disentitle the claimant of gratuity/severance package.
71. Like I pointed out earlier, the defendant did not file any reply on points of law.
COURT’S DECISION
72. I carefully considered the processes filed and the submissions of the parties. I must point out that especially the claimant’s final written address was littered with unreported cases, the certified true copies of which were not sent to the Court contrary to Order 45 Rule 3(1) of the NICN Rules 2017. Counsel must note that by Order 45 Rule 3(2) of the NICN Rules 2017, failure to comply with Rules 2 and 3(1) of Order 45 may render the written address incompetent. And by Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor unreported Suit No. SC.622/2015, the judgment of which was delivered on 18th January 2019, per Augie, JSC:
It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon – see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)…
73. The defendant had urged the Court to expunge from the entire records of this Court the claimant’s reply to statement of defence and defence to counterclaim, and the claimant’s 2nd witness statement on oath sworn to on 4th February 2015 on the ground that they are not properly before the Court. The argument of the defendant is that these processes were filed out of time (in fact 5 months out of time) without the claimant regularizing them. The defendant relied on a number of case law authorities as well as Order 15 Rule 2(4) and (5), Order 30 Rule 2(2) and Order 33 Rule 2, all of the National Industrial Court of Nigeria Rules 2017 (NICN Rules 2017), and then submitted that since the reply processes are invalid, the defendant’s counterclaim must taken not to have been controverted, and so should be granted. I agree with the submission of the claimant that the NICN Rules 2017 cannot be relied on by the defendant as it did given that the said reply was filed on 4th February 2015, long before the NICN Rules 2017 came in to effect.
74. But even looking through the Rules of Court that the defendant referred to, in none of them is the penalty for non-compliance provided for. The rule is that where a rule or law makes a provision as to the doing of a thing but does not provide sanction for not doing that thing, then the doing of the thing id directory, not mandatory. See the Supreme Court decision in Bode Thomas v. FJSC unreported Appeal No. SC.228/2013, the judgment of which was delivered on 16th February 2018. The defendant did not show to this Court anything in the Rules indicating that non-compliance of the Rules by the claimant would vitiate the reply processes. Since the Rules did not provide any sanction for non-compliance, the period stated for the claimant to file his reply processes is directory and not mandatory. I so find and hold. The defendant, I am sure for lack of what to say, is making a mountain out of nothing when it raised objection to the claimant’s reply to statement of defence and defence to counterclaim. The argument of the defendant in that regard goes to nothing and so is discountenanced. I so hold.
75. The defendant cannot, therefore, complain of injustice for not filing its reply to the claimant’s defence to the counterclaim as it seems to be doing in paragraph 4.8 of its final written address. If the defendant failed to file its reaction, then it has only itself to blame. It is not for the defendant to determine the validity or otherwise of a process. That duty is the Court’s. The claimant filed his reply processes. Whether they are valid or not is not for the defendant to say. All the defendant needed to do was to file its reaction under protest i.e. by reserving the right to contest the validity of the claimant’s reply. The defendant did not. It thus took the risk of an adverse holding in terms of its stance that the reply process of the claimant is invalid; which is what this Court just did. It is thus my holding that the reply process filed by the claimant on 4th February 2015 is valid, and would be used as such in this judgment.
76. The defendant had urged that a number of exhibits should not be relied on by the Court. In particular that Exhibits C3, C10, C11, C13, C14 and C15 cannot be relied upon by the Court as the claimant did not disclose the identity or call the makers/signatories of these exhibits which he is heavily relying upon. Additional, that Exhibit C3 (Memo for Notch Increment dated 20th June 2011), Exhibit C6 (Performance Appraisal remark), Exhibit C7 (Redeployment Memo of 29/2/2012), Exhibits C10, C13, C14 and C15 (the claimant’s statement of account), and Exhibit C16, (Telephone sms alerts) are all worthless pieces of documentary evidence as they are unsigned documents generated from a computer or electronic devices which makes their origin doubtful in terms of its maker. In addition, that the unsigned documents, generated from a computer, did not comply with section 84 of the Evidence Act. In answer, the claimant submitted that Exhibits C3, C5, C6, C7, C8, and C16 are well authenticated; they are not unsigned as the documents contain the defendant’s unique electronic signature; they are not strange; and the contents of the electronic communication are known to, and admitted, by the defendant. Nor did the defendant deny their authenticity or object to their admissibility at the trial.
77. Exhibit C3 dated 20th June 2011 is headed “Notch Increment”; and though not signed, is an email from HR Development of the defendant to the claimant with an attachment titled “image003.jpg: ET NOTCH 3.doc”. The attachment is a breakdown of the claimant’s salary in terms of basic salary, 13th month, leave allowance, cash allowance, and benefits-in-kind (variable and performance benefit), all totaling N3,378,375.00. Exhibit C5 is the claimant’s Quarterly Performance Review. Exhibit C6 is 2011 Performance Appraisal Remark of the claimant culled from the internet on 1/25/2012. Exhibit C7 is a memo dated 29th February 2012 from Human Resources to the claimant redeploying from being Regional Security Supervisor, South South to South East I; and asking him to report to the Chief Security Officer (Felix Nnachi) for further directives. Exhibit C7 is not signed. Exhibit C8 consists of two emails dated March 12, 2012 dealing with the claimant’s redeployment. Exhibit C10 is a Transaction Inquiry on the claimant’s account on 10/17/2012 but does not disclose the bank the inquiry was made from. Exhibit C11 consists of copies of three Numac Hotels Limited receipts of payment for accommodation by the claimant on 10/03/12 (N4,000), 11/03/12 (N4,000) and 12-3-12 (N9,600). Exhibits C13, C14 and C15 are the claimant’s statements of account from the defendant bank. Exhibit C16 consists of “Alerts”, the source of which is unknown.
78. To the extent that Exhibit C7 is an unsigned document, it is worthless and void. His Lordship Rhodes-Vivour, JCA (as he then was) in Fasehun & ors v. AG, Federation [2006] LPELR-5567(CA); [2006] 6 NWLR (Pt. 975) 141 and Her Ladyship Nimpar, JCA in Brewtech Nig. Ltd v. Akinnawo & anor [2016] LPELR-40094(CA) held that an unsigned document is worthless and void. Exhibit C7 cannot accordingly be used in this judgment. I so find and hold.
79. Exhibits C10 and C16 do not disclose their respective sources. To this extent, no weight can be accorded them in this judgment. They shall accordingly be discountenanced. See paragraph 44 of this Court’s decision in Mr Eluyoye Joseph Oyewole v. Lagos State Government & anor unreported Suit No. NICN/LA/288/2013, the judgment of which was delivered on 20th March 2019 where a document that did not disclose the source was discountenanced.
80. Exhibits C3, C6 and C8 are emails or culled from the internet. This Court in virtue of section 12 of the National Industrial Court (NIC) Act 2006 accepts emails in evidence without the necessity of traditional signatures on them. But such on face value must be discernible as emails. See Mrs Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which delivered on 7th April 2016, Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017, Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018 and Mr Akindele Adedipe v. Oracle Software Nigeria Limited unreported Suit No. NICN/LA/214/2016, the judgment of which was delivered on 15th May 2019. Accordingly, Exhibits C3, C6 and C8 will be accepted and used in this judgment as such.
81. As for rest of the exhibits, and the argument of the defendant as to the claimant not disclosing the identity or calling the makers/signatories of exhibits to come and testify, as well as argument as to non-certification of exhibits in terms of section 84 of the Evidence Act, once again in virtue of section 12 of the NIC Act, I shall accept the documents as admitted. The only issue left is what weight to attach to them. This I will do as I consider them in the light of the merits of the case of the claimant and the defendant. Similar arguments were raised in Mr Sunday Nwokeukwu v. Stanbic IBTC Bank Plc unreported Suit No. NICN/ABJ/171/2018, the judgment of which was delivered on 19th November 2019. This is what this Court said in paragraph 75:
…I see this as a clear case for the application of section 12 of the National Industrial Court (NIC) Act 2006, which permits this Court, in the interest of justice, to depart from the Evidence Act. Though not cited by the defendant, I am not unaware of SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013, the judgment of which was delivered on 21st December 2016, a case in dealing with the issue of admissibility of public documents held that section 12(2) of the NIC Act cannot operate to encumber the provisions of the Evidence Act 2011 since the Evidence Act 2011 is a later Act to the NIC Act 2006. However, SEC v. Abilo Uboboso is distinguishable on a number of grounds chief amongst which is section 4(2)(b) of the Interpretation Act Cap I23 LFN 2004, to the effect that where an enactment is repealed and another enactment is substituted for it, any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. This provision was not brought to the attention of the Court of Appeal in SEC v. Abilo Uboboso. Also not pointed out to the Court of Appeal is the fact that section 12(2) of the NIC Act 2006 is not delimited by time or date; it uses the phrase “Evidence Act”, not “Evidence Act 1990 or 2004”. In any event, section 3 of the Evidence Act 2011 provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”. A fortiori, if another legislation makes any evidence inadmissible, the intention of the legislature in that regard must be respected. In other words, section 3 must be read to mean nothing in this Act shall prejudice the admissibility or otherwise i.e. inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria. The NIC Act 2006 is an Act validly in force in Nigeria. Section 12 is thus a provision validly in force…
82. The claimant on his part urged the Court not place any probative value on Exhibits D2, D3, D4, D10, D11 and D12 tendered by the defendant. Exhibit D2 is the pay-slip of the claimant for the month of February 2012. Exhibit D3 is the end of service statement as at exit day of the claimant. It indicates that the claimant is indebted to the claimant to the tune of N310,646.10. There is a column in this exhibit requiring the claimant to agree with the said N310,646.10 as his final indebtedness. The claimant did not, however, sign the column. This means that the claimant contests the said indebtedness. Exhibit D4 is a statement of transactions on the account of the claimant from 1st January 2010 through 31st March 2012. Exhibit D5 is the Personnel Policies and Procedure Guide (PPPG) of the defendant. Exhibit D6 is the Staff handbook. Exhibit D10 is the NHF Monthly Contribution for the claimant. It shows contribution from May 2008 to February 2012. Exhibit D11 is a copy of the claimant’s National Housing Fund passbook showing the monthly contribution. Exhibit D12 is the certification in terms of section 84 of the Evidence Act 2011 for the claimant’s Retirement Savings Account No. PEN100428336333 i.e. Exhibits D13 and D14. The argument of the claimant that the Court must not ascribe probative value to Exhibits D2, D3, D4, D10, D11 and D12 because they are documents procured during the pendency, and for the purpose, of this action is untenable as they relate to facts that predated the filing of this case. The fact that they were culled and printed from the computer after the filing of this case does not make them documents procured during the pendency of this action as to make come within the meaning of section 83(3) of the Evidence Act, which provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”. The statements in the documents were statements actually made long before the institution of this suit. I so find and hold.
83. As for the argument of the claimant that Exhibits D2, D3, D4, D10, D11 and D12 were tendered for the purpose of establishing that the claimant is not entitled to any further benefits, and not in support of the claim of indebtedness against the claimant, and so cannot be used for such purpose, this can only be remarked on by this Court in terms of the pleadings and hence merit of the case at hand. I so hold.
84. The claimant had specific reservation regarding Exhibit D5. To him, it is not applicable to him. That on the face of the document, it came into effect in December 2015 long after the termination of the claimant’s employment. That it is axiomatic that employees are only bound by the staff standard terms in operation at the time of the contract of employment. The terms do not have retrospective application. I agree with the claimant. On the face of Exhibit D5, it is indicated that it was created in June 2010 but reviewed in December 2015. The claimant’s employment was terminated on 16th March 2012. As such, Exhibit D5 has no application to this case whatsoever. It will accordingly be discountenanced. I so find and hold.
85. I now turn to the merits of the case at hand. The Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 was quite emphatic when it stated thus:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
And by Lord Steyn in R v. Secretary of State For The Home Department, Ex Parte Daly [2001] 3 All ER 433; [2001] 1 AC 532; [2001] 2 WLR 1622; [2001] UKHL 26, “In law, context is everything”. Accordingly, a look at the reliefs of the claimant will show that the claimant’s complaint is that he wants this Court to declare that the termination of his appointment vide the defendant’s letter dated March 16, 2012 (Exhibit C9) is “wrongful, invalid, null and void and of no effect whatsoever”.
86. Exhibit C9 titled “SEPERATION” is the letter through which the claimant was disengaged by the defendant. It reads:
We write to inform you that your services are no longer required.
Consequently, you are disengaged from the employment of the Bank effective March 16, 2012.
Your severance entitlement will be credited into your account within the next 30days.
Kindly hand over all the Bank’s property in your possession (including your Identity Card) to Human Resources.
87. By Exhibit C9 dated 16th March 2012, the claimant’s disengagement took effect from same 16th March 2012. This means that the claimant’s disengagement was with immediate effect. This Court has consistently held that termination or dismissal made to take effect on the the date of the letter of termination or dismissal is one without notice and with immediate effect. In the recent case of Yunus Adewale Adefowope v. MTN Nigerian Communications Ltd unreported Suit No. NICN/LA/492/2016, the judgment of which was delivered on 15th May 2019, this is what this Court held in paragraphs 31 and 32:
31. …in terminating the claimant’s appointment with effect from 16th June 2016, Exhibit C16 of same date terminated the claimant’s appointment with immediate effect. This means that the termination was without notice. In Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018, this Court at paragraph 59 held that it is commonsensical that “a dismissal with immediate effect can never be a dismissal with notice”. This means that Exhibit C16 offended clause 7 of Exhibit C1 contrary to the argument of the defendant; and in not giving the 30 days’ notice, the termination becomes wrongful by that fact. I so find and hold.
32. This leads to the second point. The statement in Exhibit C16 that “adequate payment in lieu of the applicable notice of this termination shall be paid to you” does not meet the legal requirement of payment in lieu of notice, which is that payment must be made contemporaneously with the termination. See Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512, paragraphs 61 and 62 of Madam Oyesola Ogunleye v. Sterling Bank Plc unreported Suit No. NICN/LA/430/2014, the judgment of which was delivered on 24th May 2018 and paragraph 47 of Mr Dawodu Azeez v. 3 Peat Investment Limited unreported Suit No. NICN/LA/628/2014, the judgment of which was delivered on 16th July 2018. Exhibit D1 through which exit payment including the payment of N1,227,850.59 as “amount in lieu earning”, which I took to be payment in lieu of notice, is dated 19th July 2016. The attention of the claimant was drawn to the fact of payment on 21st July 2016 through Exhibit C17. The claimant’s termination was made vide Exhibit C16 dated 16th June 2016 and took effect from same date. In other words, the claimant was paid N1,227,850.59 as “amount in lieu earning” one month three days after his employment was terminated, not contemporaneously with the termination. For this additional reason, the termination is wrongful. I so find and hold.
88. In the instant case, Exhibit C9 says nothing about payment of salary in lieu of notice. Instead it talks of crediting into the claimant’s account (an account the claimant alleges he was denied access to) within the next 30 days his severance entitlement. Going thus by the authorities of Mr Dawodu Azeez v. 3 Peat Investment Limited and Yunus Adewale Adefowope v. MTN Nigerian Communications Ltd, the termination of the claimant’s appointment by the defendant is wrongful for two reasons: it was done without notice; and whatever the defendant said it paid to the claimant as payment in lieu of notice was not so paid contemporaneously with the termination. Accordingly, the argument of the defendant that it fulfilled its obligations to the defendant by payment of the claimant’s salary in lieu of notice by way of set off from the claimant’s indebtedness to the defendant, referring to Exhibit D3, is untenable and so is hereby rejected. This being so, relief (1) claimed by the claimant succeeds but only in terms of the termination being wrongful, since termination cannot be both “wrongful” and at the same time “invalid, null and void and of no effect whatsoever”. BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC, cited several times by the claimant, makes the distinction between mere wrongful dismissal/termination and an invalid or null dismissal/termination. This is because. where the Court makes a finding of wrongful dismissal/termination, a payment in lieu of notice will apply; but where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination as what the employer did was a nullity before the law.
89. But is the claimant’s employment subsisting as to enable him to be entitled to either reinstatement or payment of his salaries up to the date of judgment or time of reinstatement as he claims as per reliefs (2), (3), (4) and (5)? The answer is NO. The Court of Appeal decisions in Batelitwin Global Services Limited v. Mr. John Muir unreported Appeal No. CA/L/566/2013, the judgment of which was delivered on 3rd November 2016, Coca-Cola Nigeria Limited & 2 Ors v. Mrs. Titilayo Akisanya unreported Appeal No. CA/L/661/2016, the judgment of which was delivered on 17th November 2017 and Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85 at 123 all say that I cannot reinstate the claimant or pay him his salaries up to the date of judgment or time of reinstatement as he claims as per reliefs (2), (3), (4) and (5). This means that reliefs (2), (3), (4) and (5) all fail and so are hereby dismissed.
90. I must remark here that the claimant generally argued on the assumption that termination and dismissal are one and the same. Hence, the foreign cases he cited to justify his plea for reinstatement were dismissal cases. The complaint of the claimant in the instant case is that of termination. Contrary to the practice in other jurisdictions of the world, our labour jurisprudence makes a distinction between termination and dismissal. As was held by His Lordship Ogbuinya, JCA in Alhaji M. K. v. First Bank of Nigeria Plc & anor [2011] LPELR-8971(CA):
“Termination” or “Dismissal” of an employee by the employer translates into bringing the employment to an end. Under a termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate or bring [an] employment to an end is mutual in that either may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee.
See also CBN & anor v. Mrs Agness M. Igwillo [2007] LPELR-835(SC); [2007] 14 NWLR (Pt. 1054) 393; [2007] 4-5 SC 158 at 200.
91. The claimant had argued that a duty is cast on the defendant to give a reason why it terminated his employment even when he was a faithful employee who had just been recommended for promotion in virtue of Exhibit C6 and who had just resumed duty in the new place of transfer. The claimant based his argument on international best practice, which this Court is enjoined to enforce by virtue of section 7(6) of the National Industrial Court (NIC) Act 2006 and section 254C(1)(f) and (h) of the 1999 Constitution. To the claimant, the position clearly is that in cases of dismissal or termination of appointment of workers in circumstances such as in the instant case, a reason or justification for the termination must be given, citing Afolayan Aderonke v. Skye Bank unreported Suit No. NICN/IB/08/2015, the judgement of which was delivered on 17 May 2017, Mr Ebere Onyekachi Aloysius v. Diamond Bank Plc [2015] 58 NLLR 92, and and the Termination of Employment Convention 1982 (No. 158) and Recommendation No. 166 of the International Labour Organisation (ILO). Section 7(6) of the NIC Act 2006 enjoins that what is international best practice in labour relations is a question of fact, which must be pleaded and proved. The claimant did not plead international best practice; neither did he plead ILO Convention 158 and Recommendation 166 as best practice. The above cases cited by the claimant appear to have been whittled down by especially the Court of Appeal decision in Oak Pensions Ltd v. Olayinka (supra).
92. But I must reiterate the point I made in paragraph 44 of Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018. This is what I said:
44. In truth, taking the circumstances in which section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution were passed, circumstances that did not just bring this Court fully within the structure of the Nigerian Judiciary but introduced a new labour jurisprudence in the country, we can understand Oak Pensions Ltd v. Olayinka as not being against the spirit and letter of these provisions as well as the intendment of same, which is that the provisions operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. This is because international best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom, if ever, the subject of consideration in this regard. This point was made by the claimant’s counsel which this Court agreed with in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016. It was Arturo Bronstein in International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pp. 1 – 2 who said:
…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.
Of course, the concept of decent pay and decent compensation are all embedded in that of decent work.
93. I now turn to what is left of the claimant’s claims: reliefs (6), (7) and (8). Relief (6) is an alternatively relief wherein the claimant claims from the defendant the sum of N21,827,093.50 being special damages for his wrongful termination from the service of the defendant. The particulars of special damages in terms of relief (6) are:
a) Entitlements and allowances unpaid as at March, 2012 – N3,378,375.00
b) Health Insurance Scheme contribution of N100,000.00 per annum from 2008 to 2012 – N400,000.00
c) 7.5% of annual basic salary, transport and housing allowances contributed by the claimant to the Pension Scheme Fund from 2008 to 2012 – N700,000.00
d) 7.5% of annual basic salary, transport and housing allowances contributed by the defendant to the Pension Scheme Fund from 2008 to 2012 – N700,000.00
e) 2.5% of the claimant’s annual basic salary contributed for the National Housing Fund from 2008 to 2012 – N240,000.00
f) Unpaid salary of N281,531.25 for the month of March 2012 – N281,531.25
g) 6 months salary in lieu of notice unpaid to the claimant before his appointment was wrongly terminated – N1,689,187.50
h) Relocation Allowance of N850,000.00 – N850,000.00
i) Hotel Bill of N9,400.00 per day for 5 days – N47,000.00
j) N58,000.00 unlawfully withdrawn from the claimant’s account by the defendant – N58,000
k) Rent for accommodation at Awka, Anambra State – N600,000.00
l) Severance Package of annual salary multiplied by the number of years worked – N13,513,500.00
94. In earlier holding that the termination of the claimant’s appointment was wrongful, is the claimant thereby entitled to all these heads of special damages? This remains the question. The law, by Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC, is that in a claim for wrongful termination of appointment, an employee can also claim for salaries, leave allowances, etc, earned by the employee but not paid by the employer at the time of the termination. So, the new dispensation is that whether termination or dismissal is wrong or not, all earnings of an employee prior to the termination or dismissal must be paid by the employer to such an employee. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC, Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016 and Adebayo Boye v. FBN Mortgages Limited unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7th April 2016.
95. Relief (6) is a claim for special damages, which must be particularized and proved strictly by competing evidence. An admission is not even enough as proof. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). Accordingly, the argument of claimant his deposition in terms of the particulars of the special damages he claims is unchallenged and he must be taken to have proved his claims to the sums therein indicated is not sufficient proof of his claim for special damages as per relief (6). To succeed, the claimant must first show an entitlement to them and then show how he came by the quantum of sums he claims. See Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, where this Court held thus:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions the reliance on an oral contract as proof of such entitlement.
96. To determine whether the claimant is entitled to relief (6), we may need to look at each of the particulars he gave. Particular a) is: “Entitlements and allowances unpaid as at March, 2012 – N3,378,375.00”. And particular f) is: unpaid salary of N281,531.25 for the month of March 2012 – N281,531.25. I take these two particulars together given that the pleadings of the claimant did not show a clear demarcation between the two. In paragraph 24 of his statement of facts, the claimant indicated that at the time of his purported termination, his entitlements included the following: basic salary, 13th month, leave allowance at 15% of annual basic salary, cash allowances (as to housing, transport, furniture, utility, clothing, education, entertainment, meal/lunch, incentive and “reimbursible”), benefits-in-kind, passage/travel, club membership, prof. membership, cooking gas/utilities, variable and performance benefit, all totaling N3,378,375.00. The documentary proof for this is Exhibit C3. Exhibit C1 (letter of employment dated 7th April 2008) denominated the claimant’s salary in terms of annual salary, which it put as “N2,720,000.00 gross per annum”. Exhibit C3 is a “NOTCH INCREMENT”, which moved the claimant from Notch 2 to Notch 3 with the total increment being N3,378,375.00 with effect from 1st June 2011. Exhibit C3 is silent whether this sum is per annum or per month. Since Exhibit C1 denominated the claimant’s salary as annual salary, it follows that the increment per Exhibit C3 is also annual. I so find and hold. This being so, the claimant cannot claim N3,378,375.00 as monthly salary as he seemed to have done in his pleadings and deposition. Particular f) actually puts his salary for the month of March 2012 as N281,531.25.
97. In paragraph 18 of his statement of facts, the claimant stated that he “worked till March 16, 2012 the day his appointment was purportedly terminated but was not paid a kobo for the said month by the defendant”. And in paragraph 28 of his deposition of 18th June 2014, the claimant stated that he “worked till the 16th of March 2012 before his appointment was purportedly terminated but was not paid a kobo for the said month of March by the defendant”. By this, the claimant is calming the salary for only the month of March 2012. So, it is wrong for the claimant to claim N3,378,375.00 as entitlements and allowances for the month of March 2012. In paragraph 28 of his deposition, the claimant asserted that he was not paid for the month of March 2012. He did not assert that he was not paid for other months before March 2012. This means that the claimant, having worked only till 16th of March 2012, can claim only for the 16 days in March he worked for since the month of March has 31 days. Honika Sawmill (Nig.) Ltd v. Hoff [1992] 4 NWLR (Pt. 238) 673 CA at 679 held that as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. I am satisfied that the claimant proved the burden placed on him to prove that he worked till 16th March 2012 and that he was not paid for the said period by the defendant. But what the claimant is claiming as salary for March 2012 is way out of what he is entitled to. Now, if N3,378,375.00 is divided by 12 months of the year, what we get as monthly salary is N281,531.25, which if divided by the 31 days of March will give us N9,081.65 per day. This sum if multiplied by the 16 days of March 2012 that the claimant worked, what we get is N145,306.45. This is the sum (N145,306.45) that the claimant is entitled to as his pay for March 2012 in terms of both particulars a) and f) . I so find and hold.
98. Particular b) is: Health Insurance Scheme contribution of N100,000.00 per annum from 2008 to 2012 – N400,000.00. Particulars c) and d) are repetitive; and they are: 7.5% of annual basic salary, transport and housing allowances contributed by the claimant to the Pension Scheme Fund from 2008 to 2012 – N700,000.00. Particular e) is: 2.5% of the claimant’s annual basic salary contributed for the National Housing Fund from 2008 to 2012 – N240,000.00. The supporting pleading for these heads of claim is paragraph 22 of the statement of facts, where the claimant stated that he “contributed to the Health Insurance Scheme, Pension Scheme Fund and National Housing Fund and is entitled to their benefits”. Also that he “entitled to defendant’s contribution of 7.5% of his annual salary to the Pension Scheme Fund and severance package”. And in paragraph 31 of his deposition, the claimant averred that he “contributed to the Pension Scheme Fund, Health Insurance Scheme and National Housing Fund and I am entitled to the benefits”. Other than these averments, there is nothing brought before the Court to show that these contributions were actually made. Even if they were actually made by the claimant/defendant, it is not for the defendant to pay them to the claimant. The claimant ought to go after the administrators of the Funds for his said contributions. The claim for particulars b), c), d) and e) accordingly fails and so is hereby dismissed.
99. Particular g) is 6 months salary in lieu of notice unpaid to the claimant before his appointment was wrongly terminated – N1,689,187.50. Exhibit C1 puts the notice period as one month or payment of salary in lieu of notice. The claimant claims the notice period to be 6 months. But he did not tell the Court how he came by this 6 months as the notice period. I found and held earlier that the termination of the claimant’s appointment was wrongful on the twin grounds of notice not being given and payment claimed to have been made by the defendant in lieu of notice not being contemporaneous with the termination. This being so, going by case law authorities, what the claimant is entitled to in terms of both particular g) and relief (8), the claim for N100 Million as general damages for the wrongful termination, is only one month’s salary in lieu of notice i.e. N281,531.25. I so hold. See Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85, Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018, Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014 decided on 16th February 2018 and Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018. This means that particular g) and the part of relief (8) dealing with wrongful termination succeed but only in terms of the sum of N281,531.25. I so find and hold.
100. I am conscious of the submissions of the claimant here. The claimant’s reliance on cases such as the 1978 Supreme Court decision in ACB Ltd v. P. O. Ewarami [1978] 4 SC (Reprint) 71 as authority for the proposition that a dismissed worker is still in the employment of his employer and so should be awarded substantial damages is not helpful to him as the said case was considered and rejected by the Court of Appeal in Mr Emmanuel Onamini Odibo v. First Bank of Nigeria Plc unreported Appeal No. CA/L/240/2011 decided on 5th October 2018 on the ground that it cannot stand later cases of the Supreme Court such as Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018 (a case, I acknowledge whose cause of arose before the Third Alteration to the 1999 Constitution and went through a High Court). Cases like Mr Emmanuel Onamini Odibo v. First Bank of Nigeria Plc and Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85 at 123 have thrown spanners in the works regarding the arguments of the claimant as to reinstatement or the payment of substantial damages for the kind of termination of employment that befell him. See this Court’s decision in Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018 where all the just cited appellate cases were considered and applied.
101. On the quantum of damages, the claimant had urged the Court to be guided by its previous decisions in Mrs Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012 and Mr John Muir v. Batelitwin Global Services Limited unreported Suit No. NICN/LA/151/2011, where this Court awarded damages far above the period of notice stipulated in the contract of employment. Unfortunately for the claimant, these two NICN decisions were upturned by the Court of Appeal on the issue of quantum of damages. First, in Batelitwin Global Services Limited v. Mr. John Muir unreported Appeal No. CA/L/566/2013, the judgment of which was delivered on 3rd November 2016, the Court of Appeal reduced the damages which was awarded to the respondent from $193,050.00 to $24,750.00 being the sum commensurate to the respondent’s one month salary in lieu of notice. Secondly, in Coca-Cola Nigeria Limited & 2 Ors v. Mrs. Titilayo Akisanya unreported Appeal No. CA/L/661/2016, the judgment of which was delivered on 17th November 2017, the Court of Appeal again reduced the damages which was awarded to the respondent from N17,368,468.00 to N1,447,373.33 representing the respondent’s one month’s salary in lieu of notice. And in Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85 at 123, the Court of Appeal further affirmed this position.
102. But I am not unmindful of the fact that the Court of Appeal may already be reconsidering its stance. See, for instance, Promasidor (Nig.) Ltd & anor v. Asikhia [2019] LPELR-46443(CA) where the issue calling for determination was whether damages can be awarded for malicious falsehood different from the wrong arising from the termination of employment. The Court of Appeal per His Lordship Ogakwu, JCA made the distinction between the two heads and answered the question in the affirmative. Unfortunately, the claimant in the instant case has not successfully made out the case for the award of damages over and above payment in lieu of notice as to come within the Promasidor (Nig.) Ltd & anor v. Asikhia scenario.
103. Particular h) is: “Relocation Allowance of N850,000.00 – N850,000.00”. In paragraph 10 of his statement of facts, the claimant stated that it is the defendant’s policy to pay inconvenience, accommodation and relocation allowances to any staff transferred to a new location; and that the defendant initially paid him N850,000 as relocation allowance but subsequently debited his account with the entire sum (the supporting deposition is in paragraph 16 of the sworn deposition) and a further sum of N58,000, which is particular j), following the termination of his appointment. In paragraph 20 of his statement of facts, the claimant went on that he expended over N850,000 as relocation and accommodation expenses following his transfer by the defendant but has not been refunded the said amounts by the defendant. In paragraph 30 of his deposition, the claimant talked of expending N47,000 as hotel bills and over N800,000 as accommodation and relocation expenses. There is something confusing here. The claimant claims N850,000 as relocation allowance and yet is talking of refund of relocation and accommodation expenses of N850,000. Clause 3.9 of Exhibit C4, the Staff Handbook, makes provision for inconvenience allowance at 50% the staff’s annual housing allowance for a staff who is transferred or relocated. The same clause also makes provision for receipted hotel accommodation as well as cost of transportation. Exceptions are, however, made regarding staff who resign within a certain time of the transfer or relocation. The evidence before the shows that the claimant was transferred to South East I Region as Regional security Officer, which transfer was at the instance of the defendant. So, the claimant has made out an entitlement to transfer and reaction allowance, which is 50% of annual housing allowance. By Exhibit C3, the housing allowance of the claimant is put at N715,379.00. 50% of this sum is N357,689.50.
104. The defendant in paragraph 6 of its statement of defence acknowledged paying the claimant on 15th March 2012 relocation allowance of N387,110, transport allowance of N125,000, and per diem to cover hotel accommodation and meal for maximum of 90 days at N338,400, all totaling N850,510. The case of the defendant especially as per its counterclaim is that it deducted the claimant’s indebtedness to it and so the claimant is having an outstanding indebtedness of N310,646.10. To the claimant, the defendant took back the N850,000 it paid to him. I believe the claimant. See paragraph 5 of the reply to the statement of defence and defence to counterclaim. The bank account in question is with the defendant bank and so under its control. When the claimant asserted that the defendant froze his account, a bare denial by the defendant is not enough. It is for the defendant to show that the account was not frozen. This it did not do. I, therefore, find and hold that the claimant is entitled to the N850,000 he claims.
105. Particular i) is: Hotel Bill of N9,400.00 per day for 5 days – N47,000.00. Clause 3.9 of Exhibit C4 talks of receipted hotel bills. This means that what is envisaged is refund of the expenses incurred thereby. But expenses cannot be refunded except what gave rise to the expenditure was authorized in the first place. So, it is not enough for the claimant to submit hotel receipts as he did per Exhibit C11. I indicated earlier that Exhibit C11 consists of copies of three Numac Hotels Limited receipts of payment for accommodation by the claimant on 10/03/12 (N4,000), 11/03/12 (N4,000) and 12-3-12 (N9,600). In paragraph 8 of his statement of facts, the claimant stated that he was transferred to Awka on February 29, 2012. And by the email of 12th March 2012 (Exhibit C8), the claimant reported that he officially took over from his colleague all security responsibilities of South East I region and he was told same day that the defendant will process his relocation allowance. Exhibit C11 is accordingly the hotel receipts of his stay in Awka. The claimant claims as per particular i) for N9,400.00 per day for 5 days. Exhibit C11 did not show that the claimant stayed for 5 days. The sums on Exhibit C11 if added up will give us only N17,600.00, not the N47,000.00 the claimant is claiming. So as far as particular i) is concerned, the claimant is entitled to only N17,600.00. I so find and hold.
106. Particular j) is: “N58,000.00 unlawfully withdrawn from the claimant’s account by the defendant – N58,000”. In his pleadings and sworn deposition, the claimant averred that this amount was unlawfully withdrawn from his account by the defendant. This averment combines with relief (7) wherein the claimant seeks for a declaration as wrongful and injurious the fact that the defendant denied him access to his bank account and debited of his account without authorization. The defendant denies that it debited or froze the account of the claimant. But in paragraph 7 of the statement of defense, the defendant stated that the claimant exceeded his yearly medical allowance by N58,570, which was then debited to his account on 3rd April 2012 in accordance with the defendant’s staff medical policy. The Court was not directed to this staff medical policy. As such, I am satisfied that the claimant has made out a case here in terms of particular j) and relief (7). The two claims accordingly succeed. I shall, however, return shortly to reliefs (7) and (8) in terms of damages for the unauthorized debiting of the claimant’s account and the deprivation of access of the claimant to his account.
107. Particular k) is: Rent for accommodation at Awka, Anambra State – N600,000.00. I have not been shown anything by the claimant to authenticate this claim. No tenancy agreement. No receipt for the rent paid. Nothing! The claim accordingly fails and so is dismissed.
108. Particular l) is: Severance Package of annual salary multiplied by the number of years worked – N13,513,500.00. The case of the claimant here as per paragraph 29 of his statement of facts is that none of his entitlements and benefits including his March 2012 salary and the purported terminal benefits promised him in the letter of termination has been paid to him. Exhibit C9, the letter of termination, actually provided thus: “Your severance entitlement will be credited into your account within the next 30days”. By Exhibit C1 dated 7th April 2008, the defendant employed the claimant. By same exhibit, the claimant accepted the offer of employment on 16th April 2008. Exhibit C9 then terminated the claimant’s employment with effect from 16th March 2012. See also Exhibit D3, which affirms this. This means that the claimant worked for the claimant for 3 years 11 months. By the principle of arithmetical approximation, I shall round this off to 4 years. On this principle, this Court held and applied it thus in Mr Samson Iyanda v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/292/2016, the judgment of which was delivered on 28th January 2019:
…By Appendix 7, the claimant was born on 7th November 1960. When the claimant wrote Appendix 5, he was three weeks away from being 55 years old. To be specific, he was 54 years, 11 months, 9 days old. By law of arithmetical approximation (where anything from half but less than one is approximated to the next whole number), the claimant was 55 years at the time of writing Appendix 5. I so find and hold…
See also Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment for which was delivered on 20th May 2019 especially paragraph 57.
109. Clause 3.8(vi) of Exhibit C4 provides for gratuity which is a percentage of annual gross pay but for only staff that have spent up to 5 years in the Bank. Exhibit C4 says nothing about severance package. However, clause 3.8(vi) admits that the gratuity policy may change from time to time depending on management’s consideration. In Exhibit D3 (End of Service Statement as at Exit Date), the defendant calculated what the claimant had earned in terms of furniture (N134,508.00), clothing (N5,108.33), education (N5,855.00), entertainment (N5,109.08), lunch (N7,348.50), incentive (N11,351.08), transport (N5,679.50), utility (N4,279.33), reimbursible (N2,926.25), housing (N628,838.69), travelling (N64,510.43), variable (N193,978.75), performance benefits (N80,049.58), basic (N8,971.42) and leave (N4,037.00). All these sums when added together give us N1,162,550.94. The defendant added to this sum what it calculated as payment in lieu of notice (N8,971.42) and then deducted what it said was the claimant’s indebtedness to it, which then left the N310,646.10 the defendant is claiming in its counterclaim. Since clause 3.8(vi) gives the allowance that gratuity policy may change from time to time depending on management’s consideration, and it is the defendant that calculated as per Exhibit D3, I take it that the claimant’s entitlement of severance benefit is N1,162,550.94, not the N13,513,500.00 he claims on the basis of annual salary multiplied by the number of years he worked. The claimant did not actually show where he got this basis from. It is accordingly my finding and holding that particular l) succeeds but only in terms of the sum of N1,162,550.94.
110. I now turn to reliefs (7) and (8) in terms of the claim for damages for the unauthorized debiting of the claimant’s account and the deprivation of access of the claimant to his account. I must reiterate here that Promasidor (Nig.) Ltd & anor v. Asikhia [2019] LPELR-46443(CA) allowed the award of damages for malicious falsehood in addition to that for the wrong arising from the termination of employment. In paragraph 13 of the statement of facts, the claimant lamented how the defendant callously and without any lawful justification froze or placed a lien on his account for about a week preventing him from drawing on the account. That when the lien was finally lifted, it was for him to realize that the defendant had debited his account in the sum of N908,000.00 leaving him broke and stranded. This issue ties in with the defendant’s counterclaim given the argument of the defendant that it simple satisfied the indebtedness of the claimant to it; for which the claimant is still indebted to the tune of N310,646.10, the sum claimed as counterclaim. The point is that if there was no indebtedness on the part of the claimant, then the defendant was wrong in first lacing a lien on and then debiting the claimant’s account. In which event the claimant is entitled to damages in that regard in terms of reliefs (7) and (8). I shall accordingly look at the merit of the defendant’s counterclaim.
111. To refresh our memory, the defendant counterclaimed for three reliefs:
(a) the sum of N310,646.10 being the claimant’s indebtedness to the defendant comprising the amounts paid in advance to the claimant as upfront housing, leave, travel and furniture allowances for the period he rendered no services to the defendant which sum he did not earn;
(b) interest on the adjudged sum against the claimant at 21.5% from 16th March 2012 till judgment is delivered and thereafter at 10% until the judgment debt is fully and finally liquidated; and
(c) legal costs/expenses incurred in this suit as may be assessed by the Court.
The reality is that counterclaim (a) is the main counterclaim. If it succeeds, then counterclaims (b) and (c) may be considered. And if it fails, then counterclaims (b) and (c) will equally fail.
112. The basis for counterclaim (a) is indicated in the counterclaim itself i.e. the sum comprises of the amounts paid in advance to the claimant as upfront housing, leave, travel and furniture allowances for the period he rendered no services to the defendant which sum he did not earn. The chief argument of the defendant here is that the defendant’s averment that the claimant’s indebtedness arose out of advance payments made to the claimant, which payments related to a period he did not render any service to the defendant. It was the defendant of its own free will that transferred the claimant. It was the defendant of its own free will that terminated the employment of the claimant. There is nothing before the Court showing that the claimant committed any wrongdoing for which his employment was then terminated. How can the defendant now turn around and argue that the claimant was paid in advance for services he did not render? This Court has over time frowned on attitudes such as this of employers. For instance, in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016, the claim for including unamortized allowances was rejected by this Court given that the retirement of the claimant by the defendant was involuntary. This Court reasoned thus:
If the claimant had not been retired by the defendant, the question of the claimant enjoined to pay off these sums will not have arisen. The evidence before the Court is that while in service, there was no obligation on the claimant to pay any of these sums. The obligation to pay only arose as a result of the retirement of the claimant by the defendant. Is it not, therefore, a question of the defendant eating its cake and having it if allowed to benefit from its act of wrongly retiring the claimant? I think so.
113. And in Mrs Vivien Folayemi Asana v. First Bank of Nigeria Plc Suit No. NICN/LA/184/2016, a counterclaim similar to that in the instant case was considered; and this Court held that the employer could not recover the unearned allowances. James Adekunle Owulade v. Nigeria Agip Oil Company Limited (supra) was relied on. In the words of this Court at paragraph 93:
93. The defendant counterclaimed for a total of N17,388,772.09. To the defendant, the claimant admitted indebtedness to the defendant in the sum of N11,000,000.00 (Eleven Million Naira only); and that the only amount in dispute is the difference which is in the sum of N6,288,772.09 (Six Million, Two Hundred and Eighty-Eight Thousand, Seven Hundred and Seventy-Two Naira and Nine Kobo); it needs to be noted that at paragraph 33 of DW’s deposition, she put the total unearned allowance of the claimant as N5,719,908.44. The defendant went on that the N6,288,772.09 is made up of unearned allowances paid to the claimant before she resigned her appointment for the whole of year 2016 (January to December). The very fact that the defendant constructively dismissed the claimant means that it can lay no claim to any unearned allowances it paid to the claimant. The defendant cannot eat its cake and have it.
114. In like manner, the defendant in the instant case cannot eat its cake and have it. The counterclaims accordingly fails in their entirety. They are accordingly dismissed.
115. The counterclaims of the defendant failing and being dismissed means that the claimant is entitled to damages in terms of reliefs (7) and (8) i.e. the claim for damages for the unauthorized debiting of the claimant’s account and the deprivation of access of the claimant to his account. UMTHMB v. Dawa [2001] 16 NWLR (Pt. 739) 424 CA cautioned that every employer, including every public body, must be careful not to abdicate or abuse its powers. That employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. That the law does not permit employers to act arbitrarily. What the defendant did in the instant case is to act arbitrarily. This being so, the claimant is entitled to recompense. The claimant claimed for N100 Million as general damages. The pleading and deposition of the claimant is that he has not been able to secure alternative employment despite all efforts.
116. I need to make the point that while British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276 held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice (awarding two years salary in the process for an unproven malpractice), Promasidor (Nig.) Ltd & anor v. Asikhia (supra) has now made a total distinction between damages for wrongful termination where no notice is given, and damages for an alleged malpractice such as injurious falsehood, relying heavily on the maxim, ubi jus, ibi remedium (where there is right there is a remedy) and affirming the award of N2.5 Million as damages. Exhibit C3 puts the claimant’s annual salary at N3,378,375.00. I am inclined to granting two years’ salary to the claimant as damages in terms of reliefs (7) and (8) i.e. the claim for damages for the unauthorized debiting of the claimant’s account and the deprivation of access of the claimant to his account in addition to all that has so far been awarded against the defendant. In consequence, I hereby award against the defendant in favor of the claimant as general damages the sum of N6,756,750.00.
117. On the whole, and for the avoidance of doubt, while the defendant’s counterclaim fails in its totality and so is hereby dismissed, the claimant’s case succeeds in part and only on terms of the following:
(1) It is declared that the termination of the claimant’s appointment by the defendant as contained in the defendant’s letter dated March 16, 2012, is wrongful.
(2) The defendant shall pay to the claimant the sum of N145,306.45 being the claimant’s salary for the month of March 2012.
(3) The defendant shall pay to the claimant the sum of N281,531.25 being salary in lieu of notice.
(4) The defendant shall pay to the claimant the sum of N850,000 being relocation allowance.
(5) The defendant shall pay to the claimant the sum of N17,600.00 being refund of hotel bills.
(6) The defendant shall pay to the claimant the sum of N58,000.00 which was unlawfully withdrawn from the claimant’s account by the defendant.
(7) The defendant shall pay to the claimant the sum of N1,162,550.94 being severance package.
(8) The defendant shall pay to the claimant the sum of N6,756,750.00 being general damages for the unauthorized debiting of the claimant’s account and the deprivation of access of the claimant to his account.
(9) All sums payable under this judgment are to be paid within 30 days of this judgment; failing which, they shall attract simple interest of 10% until fully liquidated.
118. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
