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FIRST BANK OF NIGERIA LIMITED VS MR ABIODUN OLADIPO OLATUNJI

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

 

DATE:  WEDNESDAY JUNE 20TH 2018

SUIT NO. NICN/LA/57/2017

 

BETWEEN:

FIRST BANK OF NIGERIA LIMITED

 

CLAIMANT

AND

MR ABIODUN OLADIPO OLATUNJI

DEFENDANT

Representation:

O Onamade, with Nwiyiwa and Miss Akinwande appears for Claimant

Kabiru Bello, with Babatunde Adepoju appears for the Defendant.

 

 

JUDGMENT

On 6th February 2017, the Claimant commenced this suit via the General Form of Complaint and statement of facts (accompanied by list of witnesses, witness statement on oath, list of documents and copies of the documents) and claimed the following reliefs against the Defendant:

  1. The sum of N30,436,935.85 (Thirty Million Four Hundred and Thirty Six Thousand, Nine Hundred and Thirty Naira Eighty Five Kobo) being the outstanding and unpaid balance of the various loans and advances given to the Defendant by the Claimant during his employment with the Claimant.
  2. Interest on the said sum of N30,436,935.85 (Thirty Million Four Hundred and Thirty Six Thousand, Nine Hundred and Thirty Naira Eighty Five Kobo) at the rate of 21%  from 1st October, 2016 until judgment and thereafter at the rate of 6% per annum until the entire sum is paid.
  3. The cost of this action assessed at N500,000.00 (Five Hundred Thousand Naira).

In reaction, the Defendant entered formal appearance vide the Memorandum of Appearance of 15th February 2017.  He at the time filed a Notice of Preliminary Objection challenging the jurisdiction of this Court over the subject matter of the suit.  In a considered Ruling of 11th July 2017 this Court held that it had jurisdiction over the subject matter of this suit.  The matter thereby proceeded.  By a Motion on Notice dated 27th August 2017, the Claimant sought leave to amend the Statement of Facts and other processes.  Leave was granted on the 10th of January 2018.  The Defendant filed his Statement of Defence, list of witnesses, defendant’s witness oath, list of documents and copies of the documents on 23rd January 2018.  The Defendant counter-claimed against the Claimant as follows:

  1. A DECLARATION OF THIS HONOURABLE COURT that the Net-Book Value of the Defendant’s Status Car is not a loan and cannot attract interest.
  2. AN ORDER OF THIS HONOURABLE COURT directing the Claimant pay and set-off the N8,000,000.00 (Eight Million Naira) exit incentive due to the Defendant against the net book value of his status car.
  3. AN ORDER OF THIS HONOURABLE COURT directing the Claimant to pay the sum of N1,425,890.79 (One Million Four Hundred and Twenty Five Thousand Eight Hundred and Ninety Naira Seventy Nine Kobo) to the Defendant being three (3) months’ salary in lieu of notice.
  4. AN ORDER OF THIS HONOURABLE COURT directing the Claimant to pay the sum of N1,000,735.66k (One Million Seven Hundred and Thirty Five Naira Sixty-Six Kobo) being up-front allowances earned by the Defendant up till 31st January, 2016.
  5. AN ORDER OF THIS HONOURABLE COURT directing payment of the Building loan due to the Claimant in Quarterly instalments of N364,000.00 (Three Hundred and Sixty Four Thousand Naira) until the indebtedness is fully liquidated.

The Claimant consequently filed a Reply to Statement of Defence and Defence to Counter-Claim on 12th February 2018.

At the trial, the Claimant testified via Mr. Cyril Irabor, Officer of the Remedial and Classified Assets Management Department of the Claimant; while the Defendant Mr. Abiodu Oladipo Olatunji testified on his own behalf. Claimant tendered 6 exhibits which were admitted and marked exhibits C1 to C6.  The Defendant tendered one exhibit through the Claimant and it was admitted and marked exhibit C7.   At the close of trial on 13th February 2018, the Court ordered parties to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s final written address is dated 17th April 2018 and filed 18th April 2018, while the claimant’s is dated 2nd May 2018 and filed on same date. The Final Written Addresses were adopted on 28th May 2018 and the Court adjourned for judgment.

CASE OF THE CLAIMANT

The case of the Claimant is that the Defendant, a former employee of the Claimant, during the course of his employment applied for and received several loans and advances from the Claimant as per his entitlement as a senior staff.  By a letter dated 18th November, 2011, the Defendant applied for and was granted a housing loan of N22, 000,000.00 (Twenty Two Million Naira). As at October, 2016 when the Defendant was disengaged from the employment of the Claimant, his total indebtedness stood at N29, 791,434.34 made up as follows:

  1. Net Book Value of Status Car                        –           N12,499,237.00
  2. Unearned Clothing Allowance           –               N227,968.19
  3. Unearned Education Allowance         –               N263.997.36
  4. Unearned Furniture Allowance          –               N808,123.43
  5. Unearned Housing Allowance            –              N1,606,66.90
  6. Unearned Location Allowance           –               N455,138.90
  7. Building Loan                                      –          N17,508,333.33

TOTAL INDEBTEDNESS                                                 N33, 112,454.34

Less Staff Operating Account                                      N3, 321,000.00

NET INDEBTEDNESS                                           N29, 791,454.34

The sum of N29, 791,454.34 (Twenty Nine Million, Seven Hundred and Ninety One Thousand Four Hundred and Fifty Four Naira Thirty Four Kobo) has continued to accrue interest and the total sum due as at 31st December, 2016 is N30, 436,935.85 (Thirty Million Four Hundred and Thirty Six Thousand, Nine Hundred and Thirty Naira Eighty Five Kobo) and which sum the Defendant has failed and refused to pay despite repeated demands.

It is the Claimant’s case that it is the industry practice that all unearned allowances and the Net Book Value of the Status Car are refunded or are deducted from the entitlements of the disengaging staff. The Claimant contends that the Defendant was dismissed and not terminated from the Claimant’s employment in October, 2016 and he was credited his up-front allowances on 4th January 2016 and was not denied access to his accounts. The unearned portions of his allowances were recouped in defraying his indebtedness to the Claimant. Claimant contends that upon the dismissal of the Defendant, the Defendant had the option of either buying the status car or returning it but the Defendant elected to buy the status car and he was given time within which to pay for the car or risk being charged with interest at the prevailing commercial rate. In Response to the Defendant’s Statement of Defence and Counter-claim, Claimant asserts that the Defendant was not entitled to the sum of 8 million or any other sum of money as exit incentive as the exit incentive is only available to cases of termination and not cases of dismissal; and also that whatever entitlements due to him at the time of his dismissal have been used to offset part of his indebtedness. Claimant further states that the Defendant was not entitled to any notice or payment in lieu of notice as it is only applicable to termination of employment and not dismissal as in this case. That the sums admitted by the Defendant were the outstanding sums as at January 2016 when the Defendant was dismissed and the sums have continued to accrue interest.

CASE OF THE DEFENDANT

The case of the Defendant is that his employment was terminated on the 31st January 2016 by the Claimant and he was denied access to his Staff Account.  That his allowances were not paid to him as he never had access to the funds credited to his account. Claimant admits that he was provided with a status car as an Assistant General Manager on 13th October, 2015 in accordance with the Claimant’s staff policy. The cost of the Status vehicle at the time of purchase was N15, 750,000.00 (Fifteen Million Seven Hundred and Fifty Thousand Naira) out of which sum he contributed N1, 800,000.00 (One Million Eight Hundred Thousand Naira). The net book value of the status car as at the time of purchase by reason of the above was N13,550,000.00 (Thirteen Million Five Hundred and Fifty Thousand Naira).   He states that the value of his Status Car is not a loan and the net book value cannot attract interest as it is a depreciating asset charged against the Profit and Loss Account of the Claimant over a period of four (4) years.  Claimant admits that the net-book value of his status car as at the time of the termination of his employment was N12,499,237.00k (Twelve Million Four Hundred and Ninety-Nine Thousand Two Hundred and Thirty Seven Naira).  He admits that as at the time of the termination of his employment, the sum of N17, 508,333.33 (Seventeen Million Five Hundred and Eight Thousand Three Hundred and Thirty Three Naira Thirty Three Kobo) was outstanding on the Building loan. He notes that the Building Loan was repayable over a period of 192 months on quarterly basis and was disbursed on 23rd February, 2012 at an interest rate of 5 per annum.  It is his case that as at the date of termination of his employment he was entitled to an incentive package of N8,000,000.00 (Eight Million Naira) which sum is yet to be paid despite the assurance of the Claimant that same would be paid and the fact that other employees whose employment were terminated and who were on the same grade as himself were paid the exit incentive. He states that his up-front allowances for January 2016 which he earned totalling N1,000,735.66k (One Million Seven Hundred and Thirty Five Naira Sixty­ Six Kobo) was not paid to him.   That he was entitled to three (3) month’s salary in lieu of notice totalling N1,425,890.79 (One Million Four Hundred and Twenty Five Thousand Eight Hundred and Ninety Naira Seventy Nine Kobo) which was also not paid to him. He asks for a set-off of his entitlements against his indebtedness to the Claimant and to pay the balance in quarterly instalments of N364, 000.00 until the indebtedness is fully liquidated.  Claimant notes that his inability to service the loan was as a result of the termination of his employment.

THE DEFENDANT’S SUBMISSIONS

The Defendant in his Final Written Address raised the following issues for determination:

  1. Whether the Defendant was dismissed from employment or his employment simply terminated.
  2. Whether the Defendant is entitled to the reliefs claimed in the Counter-Claim and entitled to set off same against his indebtedness to the Claimant.

With respect to Issue 1, Defendant noted that both parties are in agreement that the Defendant’s employment ceased on the 31st January, 2016. Claimant summits that with reference to the agreed date of cessation of employment the operative document in this regard is Exhibit C7 which is the letter dated 29th January, 2016 addressed to the Defendant by the Claimant AND NOT Exhibit C4 which is a letter dated 25th October, 2016 written more than eight (8) months after the Defendant had ceased to be in the employment of the claimant.  Claimant contends that C7 simply terminated the Defendant’s employment.

With respect to Issue 2, Claimant notes that the entitlement of the Defendant to the reliefs claimed in the Counter-Claim is predicated on a finding that Defendant’s employment was terminated and not a case of dismissal. Defendant urged then that the value of the status car be separated from the total indebtedness of the Defendant on his building loan.

 

 

THE CLAIMANT’S SUBMISSIONS

The Claimant in its Final Written Address raised the following issues for determination:

  1.  Is the Defendant indebted to the Claimant?
  2. Is the Claimant not entitled to its claims?
  3. Has the Defendant proved his entitlement to exit incentive and the payment of

N1, 425,890.79 as payment in lieu of notice?

  1. Has the Defendant proved his entitlement to his counter-claim?

On Issues 1 & 2 – whether the Defendant is indebted to the Claimant; and if Claimant is entitled to its claims, Claimant submits that Defendant has admitted owing the sum of N30, 097, 570.33 and as such no proof is further required – IMB v. Comrade Cycle Co. (1998) 11 NWLR (Pt. 574) 460 and that no issues are joined with respect to this sum of money.  Claimant argues that what is left is the contention on the unearned allowances which they said they have paid on 4th January 2016.

On Issue 3 – whether the Defendant proved his entitlement to exit incentive and the payment of N1, 425,890.79 as payment in lieu of notice, Claimant argues that Defendants contention that by virtue of his employment grade he was entitled to an exit incentive of N8 million upon his disengagement was denied by the Claimant; and that the burden is on the Defendant to prove his entitlement to this exit incentive.

On issue 4 – Whether the Defendant has proved his entitlement to his counter-claim, Claimant contends that Defendant has been unable to prove his entitlement to his counter-claim; and that the repayment schedule proposed by Defendant is not reasonable and is far from being equitable as it will take 20 years to liquidate the said sum.

Responding to Defendant’s issue whether the Defendant was dismissed from employment or terminated, Claimant argues that the only document explaining the circumstances of the cession of the Defendant’s employment is not Exhibit C7 alone.  They argue that Exhibit C4 is also germane and throws more light on the cessation of employment.

 

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following issues down for determination:

  1. How and when the Defendant’s employment was brought to an end;
  2. Whether the Claimant is entitled to its claim; and
  3. Whether the Defendant is entitled to his counter-claim.

On Issue 1, which is how and when Defendant’s employment was determined.  Claimant contends that it dismissed the Defendant by Exhibit C4 dated October 25, 2016 with the title ‘Re: Disengagement’.  The document (C4) refereed to Claimant’s letter of January 29, 2019 titled ‘Disengagement’.  The said letter is exhibit C7 upon which the Defendant relies to assert that he was terminated, and not dismissed.  Both documents purport to disengage the Defendant from the employment of the Claimant.  The question that needs to be resolved is which document brought the employment relationship to an end.

Both termination and dismissal have the effect of ending the relationship of employment; however, their legal effect are not the same.  In  Olatunbosun v. NISER Council (1988) NWLR (Pt.80) 25, the Supreme Court held that, “Legally both termination and dismissal all imply removal from a particular employment. The consequences may vary. Dismissal may entail loss of benefits while termination may not.”.  In Keystone Bank v. Afolabi (2017) LPELR-42390(CA), the Court of Appeal stated that:

Dismissal is a consequence of an action that had taken place and is not predicated upon the happening of a futuristic action neither can termination be subjected to the occurrence of a future event. Termination implies in itself the element of immediacy and cannot be predicated upon a future event. It is so predicated; it loses its inherent immediacy and is no longer a valid termination.” Per OKORONKWO, J.C.A. (Pp. 16-17, Paras. F-A)

As suggested by Counsel for Claimant, I have considered both exhibits C4 and C7 in order to determine what effect they have on the employment of Defendant.  Exhibit C7 is reproduced below.  It states in part:

Dear Mr. Olatunji,

DISENGAGEMENT

We write to advise you that your services are no longer required with effect from January 31, 2016.

Your separation computation will be forwarded to you as soon as possible.  Please note however that 100% of your commitment will be deducted from your terminal benefits (staff welfare loans), credit card balances, consumer finance loans, all unearned payments etc.).  Where you have a status car, you will be required to purchase same at Net Book Value.

Kindly approach your Pension Fund Administrator on the payment of your pensions in line with the Pension Act 2004.

Please note to surrender the Bank’s identity card, name tag, lapel pin and any other property in your possession to your supervisor, after a proper handing over of your duties

The tone and tenor of this letter clearly shows an intention to bring Mr. Olatunji’s employment to an end.  It does not refer to any disciplinary reason for terminating the+ employment of the Claimant; neither did it refer to a futuristic act like the outcome of a disciplinary procedure before it can become effective.  I therefore find that exhibit C7 adequately brought to the mind of the recipient that his services had come to an end by the stated date.

By October 25, 2016 when exhibit C4 was written, Claimant’s employment had ceased to exist, and therefore could not be subject of dismissal.  Exhibit C4 referred to a letter of August 3, 2016, which letter is not in evidence and so the Court cannot tell the import of the letter.  Exhibit C4 could not reverse the status of Defendant’s disengagement from termination to dismissal.

I therefore find that the determination of Defendant’s employment was a termination and not a dismissal; and I so hold.  Defendant is therefore entitled to benefits that accrue to terminated staffs in his cadre; I so hold.

Issue 2 – Whether Claimant is entitled to his Claim? 

In Relief 1, the Claimant claims for The sum of N30,436,935.85 (Thirty Million Four Hundred and Thirty Six Thousand, Nine Hundred and Thirty Naira Eighty Five Kobo) being the outstanding and unpaid balance of the various loans and advances given to the Defendant by the Claimant during his employment with the Claimant.

The Defendant in clear terms admitted that at the point of the termination of his employment, the sum of N 17, 508, 333.33 was outstanding with respect to the building loan; and the sum of N12, 499,237.00 as the outstanding Net-Book value of his status car.  The total comes to N 30, 007,570,33. The amount not admitted from Relief 1 is N 429,365.52 only.  The Claimant in his submission notes that the only sum in contention is the unearned allowances which Claimant claimed were paid into the Defendant’s account on the 4th day of January 2016.  Claimant alleges that the evidence of the payment of this sum was unchallenged.  He also referred to the attachment to C4 which shows that his total earned allowances of N 256,789.37 were not computed with the other outstandings.  I note that in paragraph 4 of the Statement of Defence and in his evidence-in-chief, Claimants stated that the allowances listed in paragraph 8 of the Claimants Amended Statement of Facts were not paid to him.  Under cross examination, he also stated that he did not challenge the computation attached to exhibit C4 because the parties were in Court.   I therefore find that Defendant has not admitted the payment of the unearned allowances as alleged.  I have also scrutinised the Defendant’s Statement of Account (Exhibit C5) tendered by the Claimant in proof of its case.  I do not find any entry for the payment of the alleged unearned allowances.  The statement actually starts from February 2012 and ends at 5th April 2012.  I therefore do not find evidence of the payment of the unearned allowance.  Based on the available evidence and the admission of Defendant, I find that the Defendant is indebted to the Claimant to the tune of N 30, 007,570,33. being  the outstanding and unpaid balance of the building loan and net book value of his status car.

Relief 2 – Interest on the said sum of N30,436,935.85 (Thirty Million Four Hundred and Thirty Six Thousand, Nine Hundred and Thirty Naira Eighty Five Kobo) at the rate of 21%  from 1st October, 2016 until judgment and thereafter at the rate of 6% per annum until the entire sum is paid.

I have perused the documents relating to the grant of the building loan and the status car and the conditions under which they were given.  Exhibit C1 is the application for the staff loan dated 18th November 2011.  Exhibit C2 is the Memo conveying the approval of the loan dated 9th February 2012.  It also presents the terms and conditions for the grant of the loan, which includes, among others:

The staff welfare loan of N 22, 000,000.00 will be repaid over a period of 192 months at the rate of N 114,583.33 per month and 5% interest rate per annum or outstanding balance to be liquidated on leaving the service of the bank.

The Defendant by Memo dated 17th February 2012 accepted the offer of the loan and appeared to fulfil the requirements for the grant of the staff loan whereupon the funds were released as shown in exhibit C5.  It was in C4, 9 months after Defendant’s employment had ended, that Defendant was informed that his welfare loan would be reclassified as a commercial loan if he does not forward his cheque in settlement of his indebtedness within 30 days of receipt of the letter (D4).   I find that inasmuch as it was not part of the terms of the staff loan that upon leaving the service of the Claimant that the staff loan will be reclassified, the Claimant cannot unilaterally reclassify the staff loan to a commercial loan.  Parties are bound by the contract they make – Oforishe v. Nigerian Gas CO. LTD (2017) LPELR-42766(SC).

The equity of the case will not allow that a staff who while in employment is given 192 months to pay off a loan, will be required to liquidate it at once, after being compelled to leave the services of the bank.  Again, to hold otherwise would be to input what is not expressed in the staff loan contract into it.

In the same vein, I do not find evidence that the Net Book Value of the Status car was a loan and subject to accrual of interest.  It is not for this Court to re-write the conditions for the status car or write one in the absence of any, for that matter.  See the case of BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR-9339(SC) where the Supreme Court held:

It has been stated and restated in a number of decided authorities that in the interpretation of contracts or documents, the basic principle of law, is that, it is not the duty of any court or Tribunal to make contract for parties. See; Fakorede & Ors. v. Attorney General of Western State (1972) 1 All NLR 178 at 189. Contract as a rule are made by the parties thereto who are bound by the terms thereof and the courts are always reluctant to read meaning into a contract terms on which there is no agreement. See Alhaji Baba v. Nigeria Civil Aviation Training Centre & Anor (1995) 5 NWLR (Pt.192) 388 at 413; (1991) 7 SCNJ 1. In other words, a court or Tribunal cannot write a new contract for the parties.” Per ARIWOOLA, J.S.C

I therefore find that in compliance with the contract between the parties, the Claimant is not entitled to the 2nd Relief as presently constituted and I so hold.  I however hold that interest shall accrue on the balance of the Housing Loan, N 17, 508, 333.33 at the rate of 5%  per annum from 1st October, 2016 until the entire sum is paid. There shall be no interest on the Net Book Value of the status car.

 

Issue 3 –  Whether the Defendant is entitled to his counter-claim.

The third issue for determination is whether the Defendant has proved his counterclaim to be entitled to same. What then is counter claim? The Supreme Court in Maobison Inter-Link Associated Limited v. UTC Nigeria Plc (2013) LPELR-20335(SC) said thus –

 

… A counter claim is a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim. See Black’s Law Dictionary. Tenth Edition page 427. In other words, a counter claim is a claim by the defendant against the plaintiff in the same proceedings. It is regarded as an independent and separate             action in which the defendant/counter claimant is in the opposition of the plaintiff             and therefore has the burden of proving the counter claim to be entitled to judgment thereon.

 

A counterclaim is a separate and distinct action and a counterclaimant like all other claims, must prove his claim against the person being counterclaimed before he can obtain judgment on the counterclaim. There is no need citing any authority in support of this well known principle of law because there is a rain of authorities. See however Ogbonna v. A – G Imo (1992) 1 NWLR (Pt.229) 647, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Obmiami Brick & Stone (Nig) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260. See also Ogiren v. Olufunmilayo & Ors (2015) LPELR-24295(CA). Thus, the Counterclaimant must adduce sufficiently cogent and admissible evidence in proof of his counterclaims without which he will not be entitled to the relief sought.

 

Relief 1 – The first Relief sought in the Counter-claim is a Declaration of this Honourable Court that the Net-Book Value of the Defendant’s Status Car is not a loan and cannot attract interest.

I have gone through the evidence of parties to this suit, and do not find any statement suggesting that the Net-Book Value of the Defendants Status Car is a loan intended to attract interest; nor did the Claimant make any assertion in that regard.  The Claimant did not counter Defendant’s contention that the Net-Book Value of the status car is not a loan; nor did they put in evidence any material indicating that they had informed the Defendant that upon his retention of the status car, that it was to be converted to a loan.  There is no evidence supporting Claimant’s assertion that upon leaving the Claimant that Defendant was given time within which to pay for the car or risk being charged with interest.  Rather, what is in evidence is the demand for the value of a summation of the amounts comprising the balance of the housing loan and the Net Book Value of the status car.  This is found in the demand made in Exhibit C4 being the letter purporting to dismiss the Defendant and exhibit C6 which is the letter from Claimant’s Counsel demanding the Defendant to forward his cheque for the total debt within 14 days.

I therefore find that the Net-Book Value of the Defendant’s Status car was not a loan nor was it intended to be a loan.  I hereby declare that the Net-Book Value of the Defendant’s Status Car is not a loan and cannot attract interest.  That explains the deduction of the Net-Book value of the Defendants status car from the admitted debt that will accrue interest to the Claimant.

Relief 2 – AN Order of this Honourable Court directing the Claimant pay and set-off the N8, 000,000.00 (Eight Million Naira) exit incentive due to the Defendant against the net book value of his status car.

By this Relief, Defendant asserts that he is entitled to exit incentive of N8,000,000.00.  The onus of proving that he is so entitled rests on him.    Defendant did not exhibit any document, either in the form of the contract of employment, or any Rule of the Claimant showing this entitlement nor did he lead evidence to show that he was so entitled.  Defendant also stated that other employees whose employment were terminated around the same period and who were on the same cadre as he is, were paid the sum of N8,000.000.00 as exit allowance.  There is again no evidence to prove this.  However, The Claimant in exhibit D4 informed Defendant that by virtue of their decision to convert his termination to dismissal, he is not entitled to exit incentive.  This confirms that Defendant would ordinarily be entitled to exit allowance, if not for the purported dismissal.  In the absence of proof of the amount due to Defendant as exit allowance, but in line with the finding that Defendant is entitled to his benefits, Claimant is ordered to pay to the Defendant his exit allowance commensurate with his cadre.

Relief 3 – An Order of This Honourable Court directing the Claimant to pay the sum of N1,425,890.79 (One Million Four Hundred and Twenty Five Thousand Eight Hundred and Ninety Naira Seventy Nine Kobo) to the Defendant being three (3) months’ salary in lieu of notice.

Having held that the Defendant’s employment was terminated, the Defendant would ordinarily be entitled to notice or payment in lieu in line with the terms of his employment. Again, the Defendant has not furnished this Court with the terms of his contract of employment, from where the Court can determine the length of notice due to him.  The Defendant gave evidence that by his employment grade as at date of termination (Assistant General Manager) he was entitled to three (3) months’ notice or the payment of Three (3) months’ salary in lieu of notice of termination; but there is no proof of it.  Under cross examination, Claimant’s Witness stated that he did not know the length of notice an AGM is supposed to give on resigning but that he knows a Manager gives 30 days, and does not know if it is possible for that of an AGM to be longer.    It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both the case law and the statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer.

As held in Adegbite v. State, (2017) LPELR-42585(SC)

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

Also in the case of Okesoto v. Total Nigeria Plc, (2010) LPELR-4716(CA), the Court of Appeal held that:

It is quite elementary that no court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all courts are to consider only evidence and issues canvassed before it in trying to reach its judgment.

It is expected of the Defendant to assist this Court with evidence of length of notice due to him.  Defendant had argued that he gave Claimant Notice to Produce the Claimant’s Staff Handbook and details of the Defendant’s salary and other allowances and that Claimant did not comply with it.  I need to note that Notice to Produce does not mean that evidence in the instrument sought to be produced is dispensed with; it only allows the party giving notice, to utilise secondary evidence.  See section 89 and 91 of the Evidence Act 2011.

In University of Benin v. Andrew Erinmwionren (2001) 17 NWLR (Pt. 743) 548 @ 563 it was held that “it is well settled that where there is a contract of service, there is an implied term that the contract of employment can be terminated by notice”.    Having held that Defendant was terminated and hence entitled to notice, I can either apply reasonable notice or defer to the provision of statute to determine the notice accruable to the Defendant.  Section 11 of the Labour Act provides that:

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

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

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

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

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

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

 

In the absence of any proof of what the terms of the contract of employment of the Defendant is, with respect to length on notice, I find the statutory provision reproduced above reasonable in the circumstance.  I therefore apply section 11 of the Labour Act and hold that the Defendant is entitled to one month notice; or salary in lieu of notice.  Defendant in his evidence stated his salary per month to be N475,296.93 which was not contradicted by the Claimant.  I take that to be an admission that that is the salary of Defendant per month.  I therefore award the sum of N475, 296.93 as Defendant’s one month salary in lieu of notice.

Relief 4 – An Order of this Honourable Court directing the Claimant to pay the sum of N1,000,735.66k (One Million Seven Hundred and Thirty Five Naira Sixty-Six Kobo) being up-front allowances earned by the Defendant up till 31st January, 2016.

In its claim, the Claimant stated that it had paid the Defendant certain allowances which had not been earned by the Claimant.  It listed them to include clothing, education, furniture and housing allowances.

The sums stated represent annual allowances of the various heads, and were alleged to have already been paid in as unearned allowances.  I have already found elsewhere in this judgment that there is no proof of the payment of the allowances before this Court.  The statement of account of Defendant tendered by the Claimant did not show any entry in favour of the Defendant on the date the Claimant said it paid the allowance.  The Claimant admits in its evidence that the Defendant was entitled to these allowances and that they are usually paid up-front.  Having been disengaged on the 31st of January,   2016, Claimant has therefore earned and is entitled to January allowance, in the least.  Claimant did not challenge Defendant’s computation of his unpaid but earned allowances.  I therefore find that Defendant as at the date of the termination of his employment had earned and is therefore entitled to N1, 000,735.66 as claimed; and I so hold.

Defendant has asked for a set off on his indebtedness.   This is the thrust of part of reliefs 2, 3 and 4 of his Counter-claim.  Already I awarded N475, 296.93 as one month’s salary in lieu of notice. I also awarded N1, 000,735.66 as unpaid earned allowance for the month of January.  I have also ordered that Defendant be paid his exit allowance commensurate to his status.  All these are to be added and set-off on the value of the Net Book Value of the status car.  Not being a loan, as already adjudged, and the car being in the possession of the Defendant, the Defendant is to pay off the balance within 30 days of this judgment or interest will begin to accrue at the rate of 10%.

Relief 5 – An Order of this Honourable Court directing payment of the Building loan due to the Claimant in Quarterly instalments of N364,000.00 (Three Hundred and Sixty Four Thousand Naira) until the indebtedness is fully liquidated.

The Claimant had claimed for N30,436,935.85 whereupon this Court has found it is entitled to N 30, 007,570,33.being the outstanding for the housing loan and the net book value of the status car.  I have already determined how this sum is to be paid off.    In arriving at the rate the building loan is to be paid off, I referred to the loan agreement which is in evidence as exhibit C2.  It provides that “the staff welfare loan of N22, 000,000.00 will be repaid over a period of 192 months at the rate of N114,583.33 per month and 5% interest rate per annum or outstanding balance to be liquidated on leaving the service of the bank.”  It did not provide for any other rates upon being terminated and compelled to leave the bank.   As held by the Court of Appeal, Calabar Division, in Intels Nig. Ltd and 2 Others v. William E. Bassey (2011) LPELR-4326(CA)

A Court in the invocation of its interpretative jurisdiction will only pronounce on the clear wordings contained in any document See Kurubo v. Zach-Motison (Nig) Ltd. (1992) 5 NWLR (Pt. 239) 102.  Thus, in construing a written agreement which binds and governs the relationship between parties to a contract, the court must confine itself to the plain words and ordinary meaning derivable from the provisions containing the rights, obligations and entitlements of the parties as provided therein.  See Adegbite v. College of Medicine of Univeristy of Lagos (1973) 5 SC 149; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17

The condition when an employee leaves an employment cannot be the same as when an employee is compelled to leave his employment, as in this case.  Claimant in their Defence to the Counter-Claim states that the entire loan became due and payable when the employment ceased.  I do not find any evidence as to the position when the employee is terminated and made to leave.  As held in Eju Investment and Property co. Ltd v. Subair, (2016) LPELR-40087(CA),

The Court will also not permit to be read into such contract, terms on which there is no agreement. A Court of law must always respect the sanctity of the agreement of the parties. The role of the Court is to pronounce on the wishes of the parties and not to make a contract for them or to re-write the one they have already made for themselves. The express intention of the parties as contained in the Deed of Lease, Exhibit C10, must be maintained. Where parties have used clear and unambiguous words, such words must be given their plain interpretation. See: Baliol Nig. Ltd v. Navcon Nig. Ltd (2010) LPELR-717(SC) 1 at 18; Alade v. Alic (2010) LPELR-399(SC) 1 at 38; JFS Investment Ltd v. Brawal Line Ltd (2010) LPELR-1610(SC) 1 at 38; Isheno v. Julius Berger Nig. Plc (2008) LPELR-154(SC) 1 at 35; SE Co. Ltd v. NBC (2006) 17 NWLR (Pt.978) 201; Sona Breweries Plc v Peters (2005) 1 NWLR (Pt.908) 478; Owoniboys Technical Services Ltd v. UBN Ltd (2003) 15 NWLR (Pt.844) 545; Chime V Ude (1996) 7 NWLR (Pt.461) 379; & Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117).” Per SANKEY, J.C.A. (Pp. 17-18, Paras. A-A)

See also Baker Marine Nig Ltd v. Chevron Nig Ltd (2006) 13 NWLR (Pt.997) 276 where the Supreme Court stated that

It has been stated and restated in a number of decided authorities that in the interpretation of contracts or documents; the basic principle of law, is that, it is not the duty of any court or tribunal, to make contracts for the parties. See Fakorede & Ors. v. Attorney-General of Western State (1972) 1 ALL NLR 178 at 189. Contracts, as a rule, are made by the parties thereto who are bound by the terms thereof and the court are always reluctant, to read into a contract, terms on which there is no agreement. See Alhaji Baba v. Nigerian Civil Aviation Training Centres & Anor. (1991) 4 LRCN 1236. In other words, a court or tribunal, cannot write a new contract for the parties. See Aouad v. Kessrawani (1956) SCNLR 83; (1956) 1 FSC 35; (1956) NSCC 33.” Per Ogbuagu, JSC.I

Assuming it is the case that the staff loan agreement expressly stated that the loan will become due for liquidation upon the employee leaving the Claimant under any circumstance, and the situation in this case is presented, this Court might consider Claimant’s case.  Yet, without any such provision, this employee who was given a loan to pay from his salary over a period of 192 months; has his employment terminated and is called up to forward his cheque in settlement of the indebtedness within 30days.  This situation begs both the law and equity in the transaction.

Based on the above reasoning, I find that by the terms of the staff loan agreement, the Defendant is to pay off the staff loan via a monthly payment of N114,583.33 for a period of 192 months.   The Defendant proposed a quarterly payment of N364,000.00 which the Claimant argues is unfair without suggesting what would be fair. I find that the only consensus, as ever and yet reached, on the repayment is that contained in the memo of Offer of the Housing Loan dated 9th February 2012 (Exhibit C2) and accepted via memo dated 17th February 2012 (exhibit C3) which provides for repayment period of “192 months at the rate of N114,583.33 per month and 5% interest rate per annum”.  I hold that the outstanding sum is to be offset by the monthly payment of N114,583.33 as provided in the loan agreement.  The Claimant had argued that the length of time was long and that it ties down depositors’ money.  I do not see any difference in the implication for Depositors’ money being that this is the original term agreed by the parties as found in C2.   However, upon this judgment, the Claimant is to pay at once what is outstanding up to the date, and subsequently pay at the rate already determined.

I dare to refer to the judgment of this Court in Uchanma Ndukwe v. Diamond Bank Plc Suit No. NICN/LA/427/2015 judgment of which was delivered on April 26th 2018, where this Court per Justice JD Peters restrained the Defendant “from demanding the mortgage loan till after the 18 years tenor has elapsed as contained in the letter of offer dated 17/6/14”.  The Court had opined:

A practice where an employee, as in the instant case, is paid some allowances upfront and is obliged some loans with an understanding that the repayment of the loan would be through monthly deductions from the salary of the employee and for the employee to suddenly be laid off for no reason at all is both disheartening and inhuman. Such a face of corporate practice takes on the guise of a monster when the repayment of the loans are demanded from the employee forthwith notwithstanding the fact that the employee has now joined the bandwagon of the ever increasing unemployed lots of the society. This Court is both a Court of law as well as that of Equity. Jurisprudence teaches that Equity follows the Law; that the harshness of the Law led to the emergence of the doctrines of Equity and that Equity is applied to ameliorate the harshness, rigidity and inflexibility of the Common Law. See Karibi-Whyte, JSC in Akilu v. Fawehinmi (No.2) (1989) LPELR-339(SC). To grant the counterclaims of the Defendant may be acceptable within the confines of the Law but certainly it is not supported by Equity.

On the whole, for the reasons already given, and for the avoidance of doubt, the claimant’s case partly succeeds and the defendant’s counterclaim also party succeeds but both only in terms of the following orders:

  1. It is hereby declared that the determination of Claimant’s employment was a termination and not a dismissal;
  2. It is hereby declared that the Defendant is indebted to the Claimant to the tune of N 30, 007,570,33 being  the outstanding and unpaid balance of the building loan and net book value of his status car.
  3. Relief 2 as claimed is refused.  Rather, interest shall accrue on the balance of the Housing Loan, which is, N 17, 508, 333.33 at the rate of 5%  per annum from 1st October, 2016 until the entire sum is paid. However, upon this judgment and within 30 days, the Claimant is to pay what is outstanding to date, and subsequently at the rate already determined.
  4. The balance on the Net book value of the Status car shall be paid at once, after the set off, within 30 days from this judgment or interest will accrue at the rate of 10%.

WITH RESPECT TO THE COUNTER-CLAIM:

  1. I declare that the Net-Book Value of the Defendant’s Status Car is not a loan and cannot attract interest.
  2. The Claimant is to pay to the Defendant his exit allowance in accordance with his cadre.  The exit allowance is to be used to set off on the net book value of the status car.
  3. The Defendant is entitled to N475, 296.93 as one month salary in lieu of notice of termination.  The said amount is to be used to set off on the net book value of the status car.
  4. The Defendant is entitled to the sum of N1,000,735.66k (One Million Seven Hundred and Thirty Five Naira Sixty-Six Kobo) being up-front allowances earned by the Defendant up till 31st January, 2016.  The said sum is to be used to set off on the net book value of the status car.
  5. The outstanding amount on the housing loan is to be offset by the monthly payment of N114, 583.33 until the loan is liquidated.  The loan is to attract interest of 5% as agreed by the parties.  However, within 30 days of this judgment, the Claimant is to pay at once, what is outstanding to date, and subsequently at the rate already determined.
  6. After deductions of the entitlements of the Defendant, the balance on the Net Book Value of the status car is to be paid off at once within 30 days of this judgment.  Subsequently, it shall attract 10% interest until fully liquidated.

Judgement is entered accordingly.  I make no order as to cost.

 

…………………………………….

Hon. Justice Elizabeth A. Oji PhD

 

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