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National Industrial Court

Madam Oyesola Ogunleye Vs. Sterling Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: MAY 24, 2018

 

 

SUIT NO. NICN/LA/430/2014

 

BETWEEN

Madam Oyesola Ogunleye-Claimant

 

AND

Sterling Bank Plc            -Defendant

 

REPRESENTATION

Bayo Omotubora, with O. J. O. Adumah, for the claimant.

Johnson Odionu, with Adisa Oluwole, for thedefendant.

 

JUDGMENT

  1. The claimant commenced thais action vide a complaint filed on 25th September 2014. By the statement of facts, the claimant is claiming against the defendant the following reliefs:
  • A declaration that in the premises of the on-going mass termination of appointments by the defendant, the appointment of the claimant was terminated on ground of redundancy under Chapter 13, paragraph 13.3.3 of the defendant employee handbook or in the alternative the contract of employment between the claimant and the defendant was wrongfully or unlawfully terminated by the defendant on the 24th October 2011.
  • An order directing the defendant to forthwith pay to the claimant the sum of N10,414,232 as outstanding separation benefits accruing in favor of the claimant from the defendant.
  • 21% interest rate per annum on the said sum of N10,414,232 from 24th October 2011 till the judgment sum is fully liquidated.
  • Cost of this action as may be assessed by this Honourable Court.

 

  1. The claimant was employed by Magnum Trust Bank (MTB) Ltd on 8th January 1998. In 2005, MTB Ltd along with other banks merged to form Sterling Bank Plc, the defendant in this suit. Following this merger, the employment of the claimant was transferred to the defendant on 1st January 2006 vide a letter of 29th December 2005. To the claimant, as part of the compensation package of the defendant for its workers, the defendant pays a performance indexed pay based on performance rating, and any rating above 60% attracts a performance indexed pay assigned to that particular grade. For the 14 years that the claimant served the defendant, that her performance rating had always been over 70%, which thus qualified her for the payment of performance pay applicable to her grade level. That the claimant was paid various sums as performance pays between 2006 to September 2008; but those between October 2008 to December 2010 amounting to N2,046,824.00 and July 2011 to October 2011 amounting to N245,964.28 (both totaling N2,292,788.28) were not paid to her at the time of her exit from the defendant. The claimant went on that consequent upon the downsizing of its workforce since 2010, the defendant over time laid off (retrenched) a number of its workers: over 200 in 2011, over 250 in 2013 and over 120 in 2014. This lay-off of staff, to the claimant, is redundancy in another name. The claimant’s appointment was, however, terminated by the defendant on 24th October 2011 vide letter of 21st October 2011 at a time she was on an annual gross salary pay of N5,616,915.36. The grouse of the claimant is that in calculating her separation benefits, the defendant wrongly excluded one year gross salary given that by the defendant’s letter of termination and the background of such termination (on-going mass sack), the defendant terminated her appointment on ground of redundancy. The claimant accordingly claims N5,616,915.36 under paragraph 13.3.3 of the staff handbook having served the defendant for about 14 years. In the alternative, it is the case of the claimant that the claim of the defendant that it terminated the claimant’s appointment outside of the handbook makes then the termination wrongful or unlawful. The claimant additionally claims un-computed payoff/gratuity in the sum of N2,504,529.05. In all, the claimant claims N10,414,232 in addition to the other reliefs claimed.

 

  1. The defendant entered appearance and then filed its statement of defence and other accompanying defence processes, to which the claimant field a reply to the statement of defence and a further witness statement on oath together with an exhibit. The defendant’s case is that the claimant started her contractual career with the defendant on 29th December 2005 and not when MTB Ltd first employed her. The defendant denied the claim for payment of performance indexed pay to any of its staff between October 2008 to December 2010 due to the economic recession in the banking industry in the world over. The defendant also states that it did not inform the claimant that her appointment was terminated on the ground of redundancy; rather her termination was purely in normal cessation exercise. To the defendant, it computed the gratuity of the claimant in accordance with its policy as per the handbook which took effect from 1st January 2006 taking into cognizance the claimant’s years of service with MTB Ltd. The defendant prayed the Court to accordingly dismiss this suit.

 

  1. At the trial, the claimant testified on behalf of herself as CW and tendered Exhibits C1, C2, C3, C3(a) – C3(d) and C4, while Mrs Adetolu Okandeji, a HR Officer of the defendant, testified for the defendant as DW and tendered Exhibits D1 to D12. At the close of trial, the defendant filed its final written address on 21st July 2017, while the claimant filed hers on 12th January 2018. The defendant’s reply on points of law was filed on 2nd February 2018.

 

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant submitted two issues for determination:
  • Whether with regard to the circumstances of this case, the claimant has established that there was a state of redundancy in the defendant so as to be entitled to redundancy benefit.
  • Whether the claimant has proved her case for the sum of N10,414,232.00 as her outstanding separation benefits from the defendant.

 

  1. On issue (1), the defendant submitted that having denied the claimant’s assertion that the defendant laid off staff because of redundancy, that the onus to actually prove redundancy reverts back to the claimant, which she did not discharge, citing sections 132 and 133 of the Evidence Act 2011. That averment of the claimant in her reply to the statement of defence that the defendant laid off over 800 staff is unsubstantiated as the claimant did not even tender any evidence of the overblown workforce of the defendant from 2010 to the time she exited the defendant on 24th October 2011, referring to chapter 6.1.7 of Exhibit C2. That pleadings not supported by evidence amounts to abandonment of that pleading, citing Adekunle v. Rockview Hotel Ltd [2004] 1 NWLR (Pt. 853) 161 CA at 178 – 179 and Yusuf v. Dornier Aviation (Nig.) Ltd [2004] 10 NWLR (Pt. 880) 1 at 14. That a careful look at paragraph 13.3.3 of Exhibit C2 relied upon by the claimant clearly reveals that the employment of the claimant can be terminated in writing or payment of salary in lieu of such notice and the basis of the termination could be disciplinary, performance or redundancy; and that given the word “may” (a word that suggests permissiveness), not “shall”, in the said paragraph, the basis of termination is not limited to disciplinary, performance or redundancy. In any event, that before the claimant can invoke paragraph 13.3.3(ii) as the basis of her termination, she must first establish that the defendant declared her redundant in line with paragraph 13.3.2 of Exhibit C2, which cannot be read in isolation of paragraph 13.3.3. The defendant accordingly submitted that the claimant is not entitled to any redundancy benefit, citing Matthew Afolabi v. Sterling Bank Plc unreported Suit No. NICN/LA/297/2013, the judgment of which was delivered on 3rd December 2015, Mr Olumide Aribiyi v. Sterling Bank Plc unreported Suit No. NICN/LA/379/2015 the judgment of which was delivered on 22nd January 2017 and Mr Ayeni Olusola v. Sterling Bank Plc unreported Suit No. NICN/LA/162/2014 (the date the decision was given is not stated). To the defendant, Exhibit D1 through which it terminated the claimant’s employment dis not state that the termination was on the ground of redundancy; instead it stated that her services was no longer needed, and she was paid one month basic salary of N61,914.36 in lieu of notice, which she admitted in paragraph 5 of her reply to the statement of defence. That the termination accordingly complied with paragraph 13.3.3(i) of Exhibit C2, urging the Court to hold that the claimant is this not entitled to redundancy benefit.

 

  1. For issue (2), whether the claimant proved the claim for N10,414,232.00 as outstanding separation benefits, the claimant had particularized her outstanding separation benefits as: one year gross salary – N5,616,915.36; un-computed payoff/gratuity – N2,504,529.05; and outstanding performance index pay – N2,292,788.28. As regards the claim for one year gross salary of N5,616,915.36, this is the claim for redundancy, which the defendant had argued the claimant is not entitled to as she was not declared redundant by the defendant.

 

  1. For the claim for uncompleted pay off/gratuity (N2,504,529.05), the defendant submitted that the claimant is entitled to be paid her full entitlements in line with three factors viz: the total number of years the claimant worked with the defendant, the staff handbook and the conditions of service. That given the merger of MTB Ltd wth other banks to form the defendant bank, and the claimant’s transfer to the defendant, her outstanding entitlements for the number of years she spent with MTB Ltd was subsequently transferred to the defendant; meaning that Exhibit D5 was the condition of service between the claimant and the defendant at the time the claimant’s employment was transferred to the defendant on 29th December 2005. That paragraph 3 of Exhibit D5 provides as follows:

Please find attached the following;

  • Employment details including grade level and gross compensation
  • Outstanding entitlements and transitional/transfer arrangement
  • Outstanding indebtedness and transitional/transfer arrangements

Paragraph 5 of the same Exhibit on the other hand states as follows:

With effect from January 1st, 2006, your employment will be subject to Sterling Bank’s employment terms and conditions of service, as documented in the HR policy manual, a copy of which will be made available to you. Any amendments or additions to the Bank’s HR policies will be communicated to you from time to time.

To the defendant, the purport of the above statements in Exhibit D5 is that as at the time the employment of the claimant was transferred there was outstanding entitlement payable to her. Also, that Exhibit D5 did not state that the claimant’s employment would take effect from 1st January 1998 when MTB Ltd employed the claimant but rather that her employment would be subject to the defendant’s employment terms and conditions of service as documented in the HR policy manual with effect from 1st January, 2006. That it is, therefore, safe to imply from Exhibit D5 that the claimant’s employment would take effect from 1st January 2006. That the settled law is that parties are bound by the terms and conditions of service or agreement they voluntarily agreed upon and it is not in the province of the court to look elsewhere in determining the relationship between the parties, citingDPMS Ltd v. Larmie [2000] 5 (Pt.655) 138 at 157-158.

 

  1. The claimant in paragraph 5 of the statement of facts (restating same in paragraph 4 of her reply to the statement of defence) had indicated that Exhibit C2 constituted the contract of service between her and the defendant and that the defendant is bound by same. To the defendant, clause 13.2.1 of Exhibit C2is the only provision on gratuity and it states thus:
  2. As a staff of Sterling Bank, you may benefit from the Bank’s non contributory Gratuity Scheme.
  3. In order to be eligible for gratuity payments, you would have spent a minimum of five years in the Bank’s employment. Your gratuity payment would be computed on the basis of your total monthly emolument for each completed year of service.

iii. You will however not be entitled to any gratuity benefit if you are dismissed from service or if you resign in order to pre-empt dismissal.

The defendant then submitted that there is nothing in Exhibit C2 which makes the claimant’s transfer of employment to take effect from the year she was first employed by MTB Ltd. In fact, that the introductory paragraph of chapter 2 of Exhibit C2 says that Exhibit C2 forms part of the contract of employment between the claimant and the defendant and so neither Exhibit D5 nor C2 made the claimant’s employment to take effect from 8th of January 1998. From the foregoing, that the claimant is not entitled to the sum of N2, 292,788.2.00 having not proved her case for this claim on the balance of probability, urging the Court to so hold. Also, that it is in evidence that by the attachment to Exhibit D3 the defendant paid the claimant her gratuity in the sum of N429,152.00 for the period of her employment with the MTB Ltd in line with the content of Exhibit D5.Moreover, that the claimant did not tell the court how she arrived at the sum of N2,504,529.05 as her un-computed payoff;she did not adduce any evidence in respect of this claim, citing Mr. Olumicle Oluyinka Ariyibi v. Sterling Bank Plc (supra).

 

  1. The claimant tendered a letter dated 9th August 2010, marked as Exhibit C4. To the defendant, Exhibit C4 offends section 37 of the Evidence Act which renders inadmissible hearsay evidence, oral or written. That the face of Exhibit C4 reveals that its addressee is one Mr. Fola Omokurolue who is not a party in this matter and was never called in evidence while the trial lasted. The content of the Exhibit C4 with its attachment is meant to establish that the defendant calculated the gratuity of Mr. Fola Omokurolue from 7th January 1998, which means that the claimant is telling the Court what Mr. Fola Omokurolue related to her about the calculation of his gratuity by the defendant and Exhibit C4 is the evidence of such calculation. Therefore, that Exhibit C4 amounts to crass hearsay evidence, urging the Court to so hold, and referring toJAMB v. Orji[2008] 2 NWLR (Pt. 1072)552. That a cursory look at Exhibit C4 will reveal that it did not state that the calculation of the addressee’s entitlements with the defendant started in 1998 or 2006. It only confirmed that the addressee’s employment started in 1998. The defendant then contended that when it comes to the calculation of entitlements inclusive of the claimant herein, regard is had to the Transfer Letter of 29th December 2005 (in this case Exhibit C1 or D5 ) which spelt out the mode or method of calculation of the entitlements of a staff member whose employment was transferred. That the claimant is only trying to mislead this Court by introducing Exhibit 4 which is hearsay and extraneous. That by virtue of Exhibit D5, the parties should be taken to have intended to be bound by the terms and conditions in the said Exhibit D5 which they have voluntarily entered into, citingIDS Ltd v. AIB[2002] NWLR (Pt.758) 660 at 682.

 

  1. Additionally, the defendant urged the Court to note that the claimant’s counsel slipped in Exhibit C4 through the backdoor. That the claimant had filed her list of documents on 25th September 2014 and Exhibit C4 was not pleaded and listed in the list of documents. That the parties did not join issue on the content of Exhibit C4 as the claimant did not plead any fact relating to Exhibit C4 in her statement of facts. Instead, in her reply to the defendant’s statement of defence, the claimant pleaded the content of Exhibit C4 for the first time in the said reply and filed another list of documents on 25th February 2015 and attached Exhibit C4 without leave of thisCourt. It is thus the contention of the defendant that the filing of Exhibit C4 is meant to spring surprise on the defendant as the defendant has no opportunity to reply to it as pleaded in her reply. Also, that filing Exhibit C4 without leave offends Order 3 Rule 8 of the Rules of this Court, which enjoins parties to file all documents they intend to rely upon during trial at the time of filing their claim or defence. We therefore urge my Lord to expunge Exhibit C4 from the record of the Court having been filed without leave of the Court and to spring surprise on the defendant.

 

  1. As per the claimant’s claim for the payment of the outstanding performance indexed pay between October 2008 and June 2010, and July- October 2011, in the sum of N2, 292,788.28, the defendant submitted that the claimant has not established her case for this claim. The claimant had averred in her statement of facts that while in the employment of the defendant, her performance rating was always 70% which made her to be entitled to the performance indexed pay and that her unpaid performance indexed pay between October 2008 and December 2010 was N2,046,824.00 and between July 2011 and October 2011 was N245,964.98 totaling the sum of N2,292,788.28. To the defendant, it joined issue with her on her performance rating when it denied the 70% performance rating of the claimant in paragraph 3 of the statement of defence. That the claimant did not tender any instrument of appraisal from the defendant in proof of her averment that her performance rating was always 70%. That the law is that a party must rely on the strength of his or her case and that averment not supported by evidence goes to no issue and should be discarded by the Court, urging the Court to so hold and discountenance paragraph 6 of the statement of facts being averment not supported by evidence.

 

  1. The claimant has also stated in paragraph 8 of the statement of facts that her performance indexed pay for October 2008- December 2010 is N2,046,824.00. To the defendant, the claimant did not show to the Court how she arrived at the above lump sum of N2,046, 824.00 as her unpaid performance index pay between October 2008 and December2010. That the claimant can only get what she claimed if both on the pleadings and evidence she proves her claim, citing Ajayi v. Texaco Nig Ltd[1987] 3 NWI.R (Pt.62) 577 at 593. That the claimant did not plead any material facts in her pleading to enable the Court determine how she arrived at the above lump sum of N2,046,824.00;she did not also plead her previous performance indexed pay paid to her by the defendant between 2008 and 2009 to enable the Court infer how much might be her performance index pay for 2008 and 2009. That it is in evidence by virtue of Exhibit C3A that the claimant was promoted to the position of Banking Officer with effect from 1st July 2010 and it is evident in the attachment of Exhibit C3A that her annual salary was increased to N4,093,646.00 and performance indexed pay (20%) was N1,023,412.00. The defendant then asked: what then were the claimant’s annual salary in 2008, 2009 up to 30th June 2010 and the percentage of it as performance indexed pay during these periods? That the claimant did not tell the Court and did not make a case in this regard. The defendant accordingly submitted that the claimant cannot place reliance on Exhibit C3A in proof of her outstanding performance indexed pay for the period October 2008 to 30th June 2010 since Exhibit C3A and its attachment took effect on 1st of July, 2010. Furthermore, that the claimant has not established her case for performance indexed pay between July 2010 and December 2010 and July 2011 to October 2011, which were the periods to which Exhibit C3A relates. That this is so because the claimant did not plead whether the performance indexed pay is paid monthly or quarterly to enable the Court determine how she arrived at the above sum. Also, there is nothing in Exhibits C3A and C2 which says that performance indexed pay is to be paid monthly or quarterly. That the attachment to Exhibit C3A simply states that 20% of the claimant’s annual salary is payable as performance indexed pay. That it is, therefore, safe to state that as far as Exhibit C3A is concerned, performance indexed pay is paid yearly. Now was there any arrangement between the parties that made performance indexed pay payable in a manner outside Exhibit C3A? The defendant then submitted that if there is, the claimant did not tell the Court and did not make a case in that regard, urging the Court to so hold. The defendant, therefore, submitted that the claimant has not proved her entitlement to what she terms as her outstanding performance indexed pay for the periods October 2008 to December 2010 and July 2011 to October, 2011 as the claimant leaves the Court guessing or speculating; and a court does not speculate as the claimant has a duty to prove her case by preponderance of evidence placed before the Court, citingREAN Plc v. Anummu[2003] 6 NWLR (Pt.815) 52 at 117-118 and section 131 of the Evidence Act. It is thus the defendant’s submission that the claimant has not established her entitlement to the performance indexed pay in the sum of N2,292,788.28 within the ambit of section 131 of the Evidence Act, urging the Court to so hold.

 

  1. The claimant is also asking for 2l% interest per annum on the said sum of N2,292,788.28 from 24th October 2011 until the judgment sum is fully liquidated. To the defendant, for a case of interest to properly exist for determination, it must be stated with particulars in the writ of summons or in the statement of facts, citing Agbabiaka v.FBN Plc[2007] NWLR (Pt. 1024)25. That the claimant set out her prayers for prejudgment interest both in the complaint and the statement of facts. That this is not enough as the material facts which will ground the said prayers for prejudgment interest must be expressly pleaded, citingUBN Plc v. Ifeoluwa (Nig) Ent. Ltd[2007] 7 (Pt. 1032)71 (incomplete citation). Furthermore, that on the authority of Order 47 Rule 7 of the Rules of this Court and Mr. Kurt Sevennsen v. Emerging Markets Telecommunication Services Limited[2012] 27 NLLR (Pt. 78) 374 NIC, this Court cannot grant prejudgment interest, urging the Court to so hold; citing also Matthew Afolabi v. Sterling Bank (supra). The defendant concluded by urging the Court to dismiss the case of the claimant with substantial cost.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant submitted the following issues for determination:
  • Whether the mass layoff of staff exercise conducted by the defendant between 2010 to 2014 was in truth redundancy carried out in another name, which would make the claimant disengagement on 24th October 2011 one done on ground of redundancy.

 

ALTERNATIVELY

 

  • Whether the termination of the claimant’s appointment on 24th October 2011 in the manner it was done was wrongful and the defendant liable in damages.
  • Whether by the facts and evidence before the Court, the claimant has made out a case to warrant the grant of her claims.

 

  1. The claimant’s argument on issue (1) is anchored on two grounds. One, that the mass staff lay-off in the defendant between 2010 and 2014 was redundancy by another name. Two, by the provision of Chapter 13 paragraph 13.3.3(ii) of Exhibit C2, the only available ground in which the claimant was disengaged was redundancy. On the issue of mass layoff, the claimant first highlighted the salient points of the defendant’s argument on its issue (1), that is:
  • That the claimant pleaded mass layoff of staff by the defendant between 2010 to 2014, which the defendant denied, and that the claimant’s rebuttal in paragraph 4 of her reply of the defendant’s denial amounts to an inference not allowed by rules of pleading.
  • That the claimant did not provide evidence of mass stafflayoff to justify her assertion of redundancy.
  • That under the provision of chapter 13:3:3 of the staff handbook (Exhibit C2) it is not mandatory for the defendant to stick to any of the three grounds therein as a basis to terminate the claimant’s appointment because of the use of the word “may”.
  • That by the community reading of the provisions of chapter 13:3:2 and 13:3:3 the claimant must first establish that the defendant declared her redundant before the claimant can claim redundancy benefit, citingMatthew Afolabi v. Sterling Bank as authority.
  • That on the strength of Ariyibi v.Sterling Bank and Ayeni Olsuhola v. Sterling Bank the claimant’s claim here ought to fail.

To the claimant, these arguments do not hold water in the face of established facts and evidence before the Court.

 

  1. As regard the averment in paragraph 4 of her reply dated 25th February 2015, that the claimant in her further written statement on oath dated 26th February 2015 at paragraph 4 gave evidence to prove her assertion and this piece of evidence was not challenged under cross-examination by the defence counsel.That the law is trite that a defendant must expressly deny a claimant’s material averment in his statement of claim, otherwise he will be taken as having admitted same, citingOruwari v. Osler[2013] All FWLR (Pt. 668) 842 at 856. That where paragraphs in a statement of claim are uncontroverted, the paragraphs ought to be deemed as having been admitted;where facts are admitted, no evidence is admissible in proof thereof, citingBayam v. Agana[2013] All FWLR (Pt. 687) 763 at 775. That a denial of a material allegation of fact must, therefore, not be general or evasive, but specific;every allegation of fact in the pleadings, if not denied specifically, shall be taken as established at the hearing, and no further proof is necessary, citingMusari v. Bisiriyu[2014] All FWLR (Pt. 735) 387 at 398. The claimant continued that at paragraph 9 of her statement of facts, shepleaded specifically the serial mass layoff of staff by the defendant and quoted specifically figures of staff laid off in each year beginning from 2010 through to 2014 when she was disengaged; and in paragraph 4 of herreply, the averment was repeated. That in paragraph 6 of the statement of defence, the defendant did not deny the mass layoff, it only put up an evasive or bare denial, which traverse runs short of the requirement of the law on proper traverse. That the law mandates the defendant to make specific frontal denial on the mass lay off of staff for each year quoted by the claimant. That the law further places on the defendant the task of stating the true position upon its bare denial of the claimant’s averment by demonstrating the staff strength of the defendant between 2010 – 2014 to prove that there was no mass lay off. But as it stands, that the defendant’s denial as contained in its paragraph 6 of its defence, smacks of a bare denial, which is not sufficient to warrant the Court to take it as putting the mass lay off in contest. That the defendant’s failure hereof is an admission, citingSongo v. Akure[2014] A FWLR (Pt. 753) 1944 at 1966.At any rate, that the claimant by dint of facts and evidence showed the mass lay off. That at paragraph 2 of the statement of facts, the claimant pleaded the merger of many banks to form the defendant in 2005 and in paragraph 2 of the statement of defence the defendant admitted the averment.

 

  1. The claimant went on that redundancy according to the Oxford Dictionary is a case of the loss of one’s job because there is no work for him. However, that it is used for all forms of dismissals and interchangeably for unemployment, lay off, retrenchment, excess manpower situation, and broadly for all types of workers separation. Thata redundancy in a workforce as an economic separation is triggered by any of the following factors: re-engineering, repositioning, merger and acquisition. That merger and acquisition is a process by which corporate entities seek to combine the resources of independent corporate entities in the expectation that synergy in their assets and other capabilities and vis-a-vis that may be unlocked by the combination will facilitate the creation of value to customers. That whenever such a fusion takes place, certain employees of the merging companies may be unneeded. That merger and acquisition does normally prompt downsizing. That in 2004, when recapitalization policy was adopted for the banking industry, it led to many mergers of which the defendant was one, and the serial disengagement of its workforce since 2010 was as a result of the fusion because of excess manpower. That section 20(3) of the Labour Act defines redundancy as an involuntary and permanent loss of employment caused by an excess manpower. That the task of the Court in any case of claim for redundancy would thus be to determine whether there is involuntary and permanent loss of job arising from surplus labour. The claimant referred the Court to Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Company Plcunreported Suit No: NlC/7/2000 delivered on 24th July 2001, which held the staff reduction (rationalization) exercise conducted by the Respondent pursuant to the recommendations of the consultants it set up to conduct a personnel audit, as redundancy in another name; andUnion of Shipping, Clearing and Forwarding Agencies Workers of Nigeria v. Management of Transatic Nigeria Limitedunreported Suit No: NIC/14/87 delivered on 25th February, 1988, which held that the termination of appointments of the fifteen workers was actuated by a move to cut down costs, and therefore carried out under redundancy conditions and should be treated as a case of redundancy.

 

  1. The defendant had argued that it was not bound to stick to the three grounds stipulated in chapter 13:3:3 of Exhibit C2. To the claimant, this is false completely. That in the whole of Exhibit C2, it is only chapter 13:3:3 that provides for termination of employment, and the section provides for three grounds under which termination of the staff by the defendant can take place, giving the defendant the option to take any of the grounds and that latitude offered by the three options is the basis of the use of the word “May” in the section. That the defendant is bound by the provision of this section, and not at liberty to operate outside it given that the express mention of one person or thing is the exclusion of another or the inclusion of one is the exclusion of another, citing Att. Gen. Federation v. Abubakar[2007] All FWLR (Pt. 375) 405 at 553 and SEC v. Kasunmu[2009] All FWLR (Pt. 475) 1684 at 1706. That by the defendant’s own voluntary act, it stated the three grounds upon which it could terminate its staff appointment; as such, it is bound to stick to those grounds, and all other grounds are excluded, and by the content of Exhibit C3(c), the defendant terminated the claimant’s appointment on ground of redundancy; and this gives rise to the defendant’s obligation stated in paragraph 13:3:2 of Exhibit C2 in favour of the claimant – one more reason the defendant is liable to pay redundancy claim to the claimant.

 

  1. The claimant went on that thedefence counsel’s assertion that the claimant must first be declared redundant by the defendant before the claimant’s claim of redundancy can stand runs against the letter and spirit of section 20 of the Labour Act; and citing Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Company Plc (supra), where this Court held thus:

Section 20 does not require a formal declaration of redundancy, as the Respondent would want the court to believe, before it can be termed as such. Neither does Section 20 decrees reinstatement as the remedy where the rules on redundancy are flouted. All the section does is to lay down the procedural rules governing a state of redundancy in an employment, namely, that the employer shall inform the workers’ representatives concerned of the reasons for and the extent of the anticipated redundancy; the principle of “last in, first out” shall apply in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability, and the employer shall use his best endeavours to negotiate redundancy payment to any discharged workers.

That in the whole gamut of section 20 of the Labour Act, there is no provision prescribing a declaration of redundancy, and since that is the only law in Nigeria governing redundancy, it takes precedent over any provision of a contract of service, Exhibit C2 inclusive. That the law is trite that where the provisions of the contract of service are inconsistent with a guiding statute, the statute or its relevant provisions prevail, citingEmcon (Nig) Plc v. Bello[2012] All FWLR (Pt. 619) 1149 at 1170, Manya v. Idris[2001] 8 NWLR (Pt. 716) 627 andAjaokuta Steel Co. Ltd v. Corporate Insurance Ltd [2004] 16 NWLR (Pt. 899) 369.

 

  1. To the claimant, a community reading of sections 6.1.7 and 13:3:2 and 13:3:3 does not make the declaration of a redundancy mandatory; so, there is nothing in those sections compelling the defendant to do so before a redundancy can occur.But that if the defendant insists on a declaration as a pre-condition, it means those sections of the Exhibit C2 are inconsistent with section 20 of the Labour Act.That the intention of section 20(1) is to make sure that an employer does not abuse or wantonly use his managerial prerogative to deny the worker his job security and right to his work. That this is particularly important bearing in mind the need for the protection of the worker’s proprietary interest in the job represented in terms of the skill and experience of the worker. That this procedure was flouted by the defendant in this case in a bid to repudiate the financial obligation of the redundancy. That the case of Matthew Afolabi v. Sterling Bank cited by the defence counsel was decided on the facts and evidence available to the Court therein, and even from the pronouncement, that position is obvious; so it cannot be an authority in this case where facts and evidence of redundancy have been provided. That even section 20 of Labour Act was not mentioned.

 

  1. Finally on this issue, that the defence counsel quoted extensively pronouncements of this Court in Ariyibi v. Sterling Bank and Olushola v. Sterling Bank and relied heavily on these cases to urge this Court to hold that the claimant was not disengaged on ground of redundancy. To the claimant, those authorities are only persuasive, and not binding on this Court. Two, the Court pronouncement that there was no evidence of excess manpower in the defendant and that the defendant can jump out of Exhibit C2 to disengage the claimant runs contrary to settled legal principles. That once a fact is admitted, there is no need for further proof. That it is not the business of the Court to make a contract between the parties, citingJoseph v. Kwara State Poly[2014] All FWLR (Pt. 750) 1215 at 1236. That parties to contract of service are bound by it, citingUnity Bank Plc v. Abiola[2009] All FWLR (Pt. 453) 1082 at 1098 andMichelin (Nig) Ltd v. Alaribe[2010] All FWLR (Pt. 543) 1998 at 2012. That on ground of these settled legal principles, the defendant reliance on the two authorities is misplaced.

 

  1. Issue (2) is whether the termination of the claimant’s appointment on 24th October 2011 in the manner it was done was wrongful and the defendant liable in damages.The defendant had asserted that it terminated the claimant’s appointment under a normal cessation exercise with the payment of one month basic salary in the sum of N61,914.36. This to the claimant is a clear admission of the wrongful termination of the claimant’s employment, referring tosection 13:3:3 of Exhibit C2 at page 49, which provides as follows:

Termination of Employment

(i)In event of a termination of employment, you will be given notice in writing of the termination or payment of salary in lieu of such notice.

(ii)The basis for termination of your appointment may be any of the following reasons:

(a) Disciplinary

(b) Performance (consistent unsatisfactory performance over two performance appraisal periods)

(c) Redundancy.

That by Exhibit C3(c), the defendant disengaged the claimant without one month’s notice or one month salary in lieu of such a notice;it stated that the termination was “with immediate effect”, which means it came into effect on 24th October 2011. That in an attempt to show that it paid the claimant a basic salary in lieu of notice, the defendant tendered Exhibit D3 which is the same as Exhibit C3(d) dated 1st November 2011, that is, it was issued 9 days after the termination of the claimant’s appointment. The claimant referred to Chukwumah v. Shell Petroleum[1993] 4 NWLR (Pt. 289) 512 at 536 – 537 and NEPA v. Isieveore [1997] 135 at 155, which enjoin that salary in lieu of notice must be paid at the time the letter of termination is delivered to the employee; it is not to be deferred until sometime later. or paid at the pleasure of the employer.

 

  1. The claimant went on that in paragraph 17 of the statement of facts, she pleaded facts of wrongful termination of her appointment and stated further that her gross monthly pay was N468,076.28, and at paragraphs 15(d) and 20(d) of the statement of defence, the defendant admitted expressly that the monthly emolument of the claimant was N407,022,852 (though this is not correct going by the annual pay of N5,616,915.36 ) as at the time of her exit. That apart from not paying the one month salary at the date of termination, the amount paid 9 days after was N61,914.36. That the defence witness under cross-examination admitted payment after termination, when she said “the claimant was disengaged in 2011. By Exhibit D1, the date is October 24, 2011. The claimant’s terminal benefits were computed on November 1, 2011”. The claimant then referred to Ariyibi v. Sterlingand Onakoya v. Sterling Bankunreported Suit No. NICN/LA/365/2014, which held the non-payment of salary in lieu of notice at the time of termination and the quantum ultimately paid to be wrong.

 

  1. The defendant had asserted that it terminated the claimant’s employment in a pure normal cessation exercise.This again, to the claimant, was a breach of the contract of employment.That Exhibit C2 only provided for termination on any of the three grounds stated at section 13:3:3, and normal cessation exercise was not one of them, which means the defendant acted outside Exhibit C2 to disengage the claimant.

 

  1. That the foregoing have clearly shown that the claimant has discharged the burden of proof of wrongful termination of her employment contrary to the false assertion of the defence counsel, citingGateway Bank of Nig Plc v. Abosede[2001] FWLR (Pt. 79) 1316 at 1333 – 1334. That under the common law, in a claim for wrongful termination of employment, where there is a written provision for terminating the contract of employment, and there is a breach of the written provision, what the employee would be entitled to would be the salary for the period of the notice which the employer would have to give as notice to terminate the employment of the employee, citingGateway Bank of Nig Plc v. Abosede (supra) at 1337.That the inequity of the common law position made the law to make an appropriate response by recognizing other sources of additional rights and duties of the parties outside the employment contract. That such sources include collective agreements, work rules, custom, international conventions, and of paramount importance, legislation;legislation is particularly important and helpful where it prescribes minimum rules and obligations. That in a book titled,Nigerian Employment and Labour Relations Law and Practice, Concept Publications Ltd, 1st edition, written by Professor Chioma Kanu Agomo, a leading scholar in industrial relations, at page 193, she has this to say about the trail-blazing efforts of the National Industrial Court to break away from the insensitive common law principles.

The National Industrial Court and Termination of Employment

 

What is the attitude of the National Industrial Court (NIC) on remedies for wrongful termination of employment? The approach of the NIC towards termination of employment and remedies for a wrongful exercise of that right is different from the approach of regular courts. The court has declared its willingness to chart a new path from what the common law would normally allow as compensation or remedy for wrongful exercise of right to terminate a contract of employment. In Industrial Cartons Ltd v. National Union of Paper and Paper Converters Workers, the Court awarded such compensation as would take account of all the circumstances, including the fact that the contents of the letter had prejudiced the worker’s prospects of securing alternative employment. This is clearly contrary to established common law principle of excluding compensation for emotional or other form of damage. Thus, whereas the contract provided for one month’s salary in lieu of notice, the NIC awarded six months’ salary in lieu of notice. In Michelin (Nigeria) Ltd v. Footwear, Leather and Rubber Products Senior Staff Association, the Court introduced the concept of severance pay. This mode of compensation is tied to the period of service rendered by the employee. Here, it was one month’s pay for each completed year of service, in addition to whatever monetary compensation already paid to the employee before his death.

 

  1. To the claimant, from the evidence before the court, she worked for the defendant for 14 years before she was pushed out. Accordingly, she urged the Court in the exercise of its powers to grant an award of compensation or damages as provided by section 19(d) of the National Industrial Court Act 2006 to grant her a compensation of N5,616,915.36 representing her monthly emolument of N468,076.28 for each completed year of service for 12 years (N468,07628 x 12 years = N5,616,915.36) for wrongful termination.

 

  1. Issue (3) is whether by the facts and evidence before the Court, the claimant has made out a case to warrant the grant of her claims.The claimant made certain specific money claims against the defendant and particularized those claims in both her pleadings and written statements on oath. That a claim for special damages must be specifically pleaded and strictly proved. The strict proof required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading;strict proof does not mean unusual proof, citingUBA Plc v. Eye Gymineral Resources Ltd[2009] All FWLR (Pt. 486) 1951 at 1970. The claimant then proceeded to treat each claim after the other.

 

  1. The claim for N5,616,915.36 as one year gross pay or 12 years compensation. That Exhibit C3(d) shows clearly the claimant’s one year gross pay of N5,616,915.36, and Exhibit C2 section 13:3:2 at page 49 shows that once the claimant was 10 years and above, she was entitled to one year gross pay on ground of redundancy. Relying on all the arguments canvassed in favour of issue (1) above relating to redundancy, the claimant contended that she has made out a case of redundancy and, therefore, entitled to the gross pay. Alternatively, that the claimant has made a case for a wrongful termination of her appointment as canvassed under issue (2) as well, and seek a compensation of N5,616,915.36 for the wrongful termination, andthat wrongful termination of the claimant’s appointment as proved above entitled her to such a compensation and the Court is empowered as stated above to grant the compensation and the defendant has not disputed this. Accordingly, she urged the Court to accede to the relief.

 

  1. The claim for N2,503,529.05 as shortfall of payoff/gratuity. The gist of the claimant’s claim here is that she served the defendant for an unbroken period of 14 years (8th January 1998 to 24th October 2011) factoring in her years in both the legacy bank (Magnum Bank) and the defendant. She contended that her crossover from the legacy bank to the defendant in 2005 was just a transfer of employment as Exhibit C1 is titled. On account of the 14 years, the claimant multiplied her total monthly emolument of N468,076.28, which both parties agreed on, by 14 years to arrive at N6,553,067.92. This formula is found in section 13:2:1 at page 48 of Exhibit C2. N6,553,067.92 less the sum of N3,159,596.97 (wrongly calculated and paid by the defendant) comes to N2,503,529.05, which is what the claimant is claiming here. The claimant relied on both Exhibits C1 and C2 for her position. The claimant relied onOnakoya v. Sterling Bank (supra), which interpreted the same scenario and ole that there was no break in the service period and then applied the formula provided by clause 13.2.1 of Exhibit C2 as presently canvassed by the claimant in the instant case. The claimant continued that on the page of Exhibit C3(d) prepared by the defendant and signed by its sole witness in this case, the length of service of the claimant was put at “l3years & 10 months”.

 

  1. Continuing, the claimant submitted that the defendant itself again much earlier had paid some earlier disengaged staff in line withOnakoya v. Sterling Bank (supra) and ExhibitC2; and in support, the claimant tendered Exhibit C4. However, the defendant’s counsel in his final written address raised a lot of dust on this Exhibit. One of his arguments is that the claimant smuggled the exhibit through the back door vie the claimant’s reply. To the claimant, this argument is false. That the defendant filed its statement of defence out of time, and consequently filed a motion on notice dated 5th December 2014 to regularize it, and the motion was granted by this Court on 3rd March 2015. That the claimant’s reply, which brought in Exhibit C4, filed earlier on 26th February 2015 was deemed regularly filed, urging the Court to discountenance the defence counsel’s argument that Exhibit C4 is hearsay evidence. That this exhibit was issued by the defendant and its sole witness was a co-signatory to the letter. The claimant then asked: which hearsay evidence is the defence counsel talking about? That this shows that the exhibit is critical of the defendant’s inequitable position. The exhibit shows that the claimant’s colleague, Fola Omokurolue, who came from the same Magnum Trust Bank, one of the legacy banks, who was disengaged on 30th June 2010, his years in the legacy bank and the defendant were calculated together to arrive at 12½ years and pay-off of N11,210,692. The claimant went on that both parties agreed that it was the merger of the legacy banks in 2005 that brought about the defendant in 2006. Exhibit C1 was categorical on that. So, if the staff in Exhibit C4 left on 30th June 2010 when the defendant was just 5 years old, and 12½years were calculated for him, it then means that the staff years in legacy bank were calculated with his years in the defendant to arrive at 12½years without the dichotomy of legacy bank and the defendant.To buttress this further, that from Exhibit C4 at page 2, the annual pay off of Mr. Omokurolue was N10,762,265.00 and when divided by 12 months will give us N896,855 as his total monthly emolument, and when N896,855 is multiplied by12½years the staff gratuity came down to N11,210,692, which was what was paid to him. So, the defence counsel’s argument that Exhibit C4 will reveal that they did not state that the calculation of the addressee’s entitlements with the defendant started in 1998 is illogical. The claimant referred to Kunle Makinde Dada v. Sterling Bank, and submitted that it was decided in error as Exhibits C1, C2 and C3(d) were tendered and admitted in that case, yet the Court’s position was that there was no evidence before the Court. The claimant urged the Court not rely on it but to prefer Onakoya v. Sterling Bank, which was in line with earlier decision of the defendant itself.

 

  1. The claim for N2,292,788.28 outstanding performance pay. On this claim, the defendant had argued that the claimant did not tender any instrument of appraisal to show she scored 70% and above, she did not plead her previous performance pay before 2008 to enable the Court know her performance pay for 2008, 2009, 2010 and 2011, and she did not plead whether performance pay was monthly or quarterly or yearly and what percentage on her salary. To the claimant, a look at the defendant’s averments in paragraphs 3 to 5 of its defense will show the defendant’s prevarication and ambivalence, which are very obvious. That the defendant’s first excuse was that the performance pay falls within the discretion of the Bank. The second excuse was that the claimant “did not raise this issue prior to her exit from the Bank”. The third excuse was that no staff was paid performance pay in the period. The fourth excuse was economic meltdown. The fifth excuse was that the claimant’s performance was not up to 70%. To the claimant, this fifth excuse is not in the defendant’s pleading or written statements on oath; it is raised by the defence counsel in the defendant’s final written address. To the claimant, the conflicting excuses simply show that the defendant is not telling the truth. That in all the excuses, it was never the case of the defendant that there was no appraisal or assessment carried out in the period in issue. That it was in Kunle Dada v. Sterling Bank that the Court raised that new defence for the defendant without hearing the claimant in that case, and that is one of the reasons the judgement has been appealed against. That the appraisal rating of the claimant is not in contest in this case, so it is established. It is not a sure bet for the defendant here.

 

  1. To the claimant, under cross-examination by the defence counsel, she testified as follows:

Performance index pay is my right – in-fact the right of all employees that have appraisal above 60 percent. It is not an incentive. It is a part of salary. It is true that between 2008 and 2010 there was a global meltdown and recession. Yes, so many banks were affected but the defendant bank was not affected. I do not agree that between 2008 and 2010 nobody was paid performance index pay in the defendant bank.

 

The defendant did not fail. It made profit and paid dividends even in the midst of recession. Yes I was paid performance index pay between January and June 2011. It is not true that I was not paid performance index pay from July 2011 because my performance was not satisfactory. Assessment/rating is posted on the internet but I have no access to the internet. However, I know that my performance rating was 73 percent.

That the defendant’s arguments are against the run of facts and evidence before this Court. That the claimant stated her performance rating was 70% above and gave evidence to that effect in her written statement, and under cross-examination; and she tendered Exhibit C2. That at page 34, paragraph9.2.1 of the exhibit, it was the defendant that conducted performance appraisal four times in a financial year; so the record was with the defendant locked in its internet network. That the defendant that claimed the claimant appraisal rating was not up to 70% at address stage, had a duty to tender the record, but concealed it. That the law is trite that by virtue of section167(d) of the Evidence Act 2011, it is presumed that evidence which could be and is not produced, would, if produced, be unfavorable to the person who withholds it, citingAdike v. Obarevi[2002] FWLR (Pt. 131) 1907 at 1924.

 

  1. The claimant continued that at paragraph 7 of her statement of facts she pleaded that she was paid the performance pays between 2006 to September 2008, and January to June 2011. That what was outstanding was between October 2008 to December 2010 and July to October 2011. In order to prove the previous payment and the percentage applicable, she tendered Exhibit C3a. That Exhibit shows that performance pay is part of the total annual compensation of the Claimant . This particular compensation became effective from 1st July, 2010 and the annual sum approved was Ni, 023,412.00 and that amount was segmented into quarterly payment , and each quarterly payment was about N255,853.00 and that was why the Claimant claims N245, 964.28 for the quarter of July to October 2011. This regime also governed the second half of 2010, which is two quarters. The previous payment was in that range, hence the Claimant claim of N2, 046,824.00 for three years. At any rate , the total sum claimed by the Claimant here is not in contest here, as the Defendant never joined issue on the amount in its defence. From Exhibit C3a., the performance pay was an annual thing and this Exhibit shows the Claimant annual gross pays and performance pay percentages.

 

  1. On the defendant’s assertion that the performance pay was not paid to any staff in the period under review, that the claimant in paragraph 3 of her reply pleaded that certain category of staff was paid and she led evidence to that effect in her further written statement on oath. And under cross-examination as quoted above she said that the economic meltdown cited as an excuse not to pay by defendant did not affect the defendant because the defendant’s assets grew and its shareholders were paid dividends, citingAriyibi v. Sterling Bank, which held thus:

It is without any shred of doubt that the defendant by the above captured letter increased claimant’s gross emolument, effective from 25th of July, 2011. The attachment to it is the details of the increment and that includes 15% performance index pay. It is equally plain on this letter that the increment commences from 25th July, 2011. The payment of the amount stated in exhibit 002 is not contingent upon any condition. In fact the word “guaranteed” gives credence to the fact that the sum of N11,271,706.79 is without peradventure, claimant’s annual salary from 25th of July, 2011. The onus of proving otherwise rests on the defendant. DW in its testimony, stated that claimant’s performance appraisal was not up to 80%, however he failed to produce the appraisal report before the court in support of his assertion despite the fact that a notice to produce same was served on it. It is the law that facts not supported with credible evidence must be deemed abandoned and by Section 167(d) of the Evidence Act, 2011, I am convinced that the defendant did not produce this document because if it does it will be unfavorable to its case. Now, can this argument without more be sufficient to controvert claimant’s case, which also constitutes terms of his employment? The answer is in the negative, this is so because the defendant failed to show by any shred of evidence or document that it did fail to pay its staff because the bank did not make profit. It is actually out of place for the defendant to argue in that regard in that such excuse is not a ground for which the defendant may withhold payment of performance pay. It is plain on the attached document to exhibit 002, that claimant is entitled to annual performance index pay 15% in the sum of N1,690,750.02. I find and hold that claimant is entitled to the sum of N7,000,000.00 as his unpaid performance pay from October 2008 to December 2010. I so hold.

 

  1. On the issue of pre and post judgment interest, the claimant submitted that the law is trite that a party who claims interest on a sum of money has an obligation to support his claim. That a court has the power to award interest in two distinct circumstances: as of right; and where there is power conferred by statute to do so, in exercise of the court’s discretion. That interest may be claimed as of right where it is contemplated by the agreement between parties or under a mercantile custom, or under a principle of equity, such as where there is a breach of a fiduciary relationship. That where interest is being claimed as of right, the proper practice is to claim entitlement to it in the writ of summons and plead facts which show such an entitlement in the statement of claim, citingMaster Holding (Nig) Ltd v. Okefiena[2012] All FWLR (Pt. 648) 921 at 932. That this is what the claimant has done in this case;in paragraphs 23, 24 and 25 of her statement of facts, facts were pleaded and evidence adduced to prove same through her statements on oath.That the basis for award of interest could be the fact that the claimant has been kept out of her money for a period and the defendant who had use of the money for itself ought to compensate the claimant for the deprivation, citingInternational Offshore Construction Ltd v. SLN Ltd[2003] 16 NWLR (Pt. 845) 137,Kano Textile Printers Plc v. Tukur[1999] 2 NWLR (Pt. 589) 78 and Sani Abacha Foundation For Peace and Unity v. UBA Plc[2010] All FWLR (Pt. 522) 1668 at 1674. That where the power to award interest is from a statute, it is not obligatory that same must be claimed or pleaded, citingMTN (Nig) Comm. Ltd v. Wigatap Trade & Inv. Ltd[2013] All FWLR (Pt. 684) 123 at 143 – 144. That section 254C(1)(k) of 1999 Constitution confers powers on this Court in a dispute arising from payment or non-payment of gratuities, allowances, benefits and other entitlements of any employee and matters incidental thereto. That a claim of interest is always an incidental matter to a denial of a sum of money, citingDiamond Bank Ltd v. PIC Ltd[2010] All FWLR (Pt. 512) 1098. That is a statutory authority for this Court to grant a pre-judgment interest claim. Furthermore, that the High Court (whose status this Court now has) has an inherent power to make orders, even if not sought where such orders are incidental to the prayers sought. In other words, a claimant may be given such an equitable relief as he may be entitled to even though he has not specifically asked for one, citingDiamond Bank Ltd v. PIC Ltd.That it is also settled that it is not in every case that evidence has to be adduced in respect of interest claimed before interest is awarded. That in certain cases even failure to claim interest in the writ of summons or statement of claim will not preclude a successful claimant from praying for and being awarded interest, citingDiamond Bank Ltd v. PIC Ltd(supra). That as a rule, a monetary judgment attracts appropriate interest even where none is claimed, citingAugustine F. I. lbama v. Shell Petroleum Dev. Co. (Nig) Ltd[1998[] 3 NWLR (Pt. 542) 493.Finally, that Order 27 Rule 7 of the Rules of this Court does not preclude the award of pre-judgment interest. In conclusion, the claimant urged the Court to accede to her claims in their entirety

 

THE DEFENDANT’S REPLY ON POINTS OF LAW

  1. The defendant replied on points of law. On the issue of the defendant making an evasive or bare denial in terms of the mass layoff pleaded by the claimant as per paragraph 9 of her statement of facts, the defendant relied on Edozien v.Edozien[1998] 13 NWLR (Pt.580)133 at 148, where it was held thus:

It may well be that each of the appellant’s said paragraphs 8 and 9 which deal with nomination, selection and presentation of the 1st defendant as the next Asagba of Asaba with sub and sub-paragraphs are not answered one by one by the Respondent. They need not so answer them. All that a Defendant needs to do to constitute a traverse of the Plaintiff’s pleadings is to set up a case opposed to that set up by the Plaintiff in his Statement of Claim.

To the defendant, it expressly denied paragraphs 9 and 10 of the statement of facts in its paragraphs 6 and 7 of the statement of defence. That by this denial, the defendant expressly joined issue with the claimant on whether there was a state of redundancy in the defendant at the time of the exit of the claimant or whether the defendant massively laid off its staff. Also, that the claimant’s averment in paragraph 11 of the statement of facts to the effect that “the Defendant mass staff lay off is redundancy in another name” signifies that to the claimant, mass lay off is redundancy in another name which the defendant has expressly denied in paragraphs 6 and 7 of its statement of defence, urging the Court to so hold.

 

  1. The claimant had contended that recapitalization policy of 2004 brought mergers of Banks in banking industry and that the defendant was one of these banks. To the defendant, section 134 of the Evidence Act provides that the burden of proof shall be discharged on the balance of probabilities in all civil proceedings. That the claimant has not told the Court how an exercise of merger carried out in the year 2005 caused the defendant to declare her redundant in 2011, which was six years after the said merger. The defendant, therefore, submitted that the claimant has not discharged the burden placed on her by sections 131 to 134 of the Evidence Act.

 

  1. That assuming without conceding that the defendant made an evasive or bare denial of the mass staff lay off (which the claimant pleaded in paragraph 9 of the statement of facts and repeated in paragraph 4 of her reply) which the Court may deem as an admission, that the law is that a declaratory relief cannot be granted on the basis of admission as the claimant must rely on the strength of her own case, citingEdozien v.Edozien (supra) at 147. That the first relief of the claimant as constituted both in her complaint and the statement of facts is a declaratory one, which must be proved not on the basis of admission but on the preponderance of evidence as made out in the claimant’s case, urging the Court to so hold.That Chemical & Non-Metallic Products Senior Staff Association vs. Benue Cement Company Plc (supra) cited by the claimant does not apply to this case given thatin Chemical & Non-Metallic Products Senior Staff Association, there was evidence of excess of manpower in the defendant therein whereas there is none here. The defendant also submitted that section 20 of Labour Act simply talks about procedure which an employer must follow where it declares redundancy; in other words where the employer says it has excess of manpower as the basis for terminating the employment of the employee.The defendant went on that theclaimant under cross-examination told the Court that she was not specifically written that she was declared redundant. That the implication of this assertion of the claimant under cross-examination is that she inferred redundancy as the ground for the termination of her employment. That there is no evidence of excess of manpower in the defendant before the Court at the time of the exit of the claimant from the defendant and so chapter 13.3.2 Exhibit of Exhibit C2 is not inconsistent with the section 20 of the Labour Act, urging the Court to so hold.

 

  1. The claimant had raised the issue of the wrongful termination of her contract of employment. First, she contended that the basic salary in lieu of notice which the defendant paid to her was not contemporaneous to the date of the exit of the claimant from the defendant and citedChukwumah v. Shell Petroleum[1993] 4 NWLR (Pt.289)512 to support her contention. To the defendant, the law is that a party must rely on the strength of her own case. Citingsections 131 and 133 of the Evidence Act, the defendant submitted that theclaimant has not established the issue of non-contemporary of the salary in lieu of notice with the date of her exit from the defendant. She did not tender the account statement of her salary account to enable the Court determine whether the defendant paid her the salary in lieu of notice the same day she exited the defendant or afterwards. To the defendant, Exhibit D3 with its attachment does not constitute account statement of the salary account of the claimant;it is only a computation carried out on the 01/11/11 showing both the entitlement and indebtedness of the claimant. That the computation did not in any way reveal that the defendant paid the basic salary in lieu of notice on the 01/11/11. That the settled law is that no amount of oral evidence, however cogent, can change the content of documentary evidence. In other words, extrinsic evidence is basically inadmissible to add or alter the content of document as the claimant is trying to do in respect of the Exhibit D3 and its attachment, citingRean Ltd v. Aswani Textiles Ind. Ltd[1991] 2 NWLR (Pt. 176) 639 at 663. That the question of non-contemporary of salary in lieu of notice as raised by the claimant amounts to speculation and the Court of justice does not act on speculation. That from the foregoing the termination of the claimant’s employment with the defendant was not wrongful but in line with the terms and conditions of contract of employment between the parties represented by Exhibits C1 and C2.

 

  1. The claimant had cited Onakoya v. Sterling Bank Plc to the effect that the Court awarded the shortfall of the claimant’s gratuity therein. In reaction, the defendant referred to Mrs Ibilola Veronica Akinyemi v. Sterling Bank Plcunreported Suit No. NICN/LA/607/2015 delivered on 20th December 2017, Kunle Makinde Dada v. Sterling Bankunreported Suit No. NICN/LA/207/14 delivered on 28th September 2017 and Matthew Afolabi v. Sterling Bank Plcunreported Suit No. NICN/LA/297/13 delivered on 3rd December 2015, where the claims for shortfall of gratuity were rejected.

 

  1. The claimant had contended that Exhibit C4 shows that the claimant’s colleague, one Fola Omokurolue, who came from Magnum Trust Bank, was disengaged on 30th June 2010 and that the defendant calculated his entitlements from the time he was first employed by the Magnum Trust Bank. To the defendant, it had already argued on the admissibility of Exhibit C4, referring also to section 46 of the Evidence Act. To the defendant, the recipient of Exhibit C4 is not a party to the present suit and so cannot be used in this suit. That this Court cannot rely on Exhibit C4 since it offends the express provisions of sections 37 and 46 of the Evidence Act. Also, that the claimant did not tender the conditions of service of Mr. Fola Omokurolue as at the time his employment was transferred to the defendant.That the correct position of the law is that parties are bound by the terms and conditions of contract between them.

 

  1. The defendant went on that by the doctrine of pacta sunt servanda, the Court should not allow the parties to rescind or renege from agreement between them to the detriment of the other parties, citingKuruobo v. Zach Motion Nig. Ltd[1992] 5 NWLR (Pt.239) 102 at 116-117.Exhibit C1 or D5 is the letter titled,“Transfer of Employment” dated 29th December 2005 and it provides that the employment of the claimant would take effect from 1st January 2006. The defendant urged the Court to give a liberal interpretation to the wording of Exhibit C1 or D5 as its wordings are clear and unambiguous, and to discountenance the submissions of the claimant in respect of Exhibit C4 because the settled law is that the content of documentary evidence in this case Exhibit C1 or D5 can only be changed by another document in writing signed by the parties to Exhibit C1 or D5 (which in this case, there is none) and not by Exhibit C4 which the claimant slipped in through the back door.

 

  1. In paragraph 8.47 of the claimant’s final written address, the claimant’s counsel particularized the facts of the N2,292,788.28 being claimed as the outstanding performance index pay or how the claimant arrived at the amount. To the defendant, the law is that the address of a party cannot take the place of evidence, citingChabasaya v.Anwasi[2010] 10 NWLR (Pt.1201) 163 at 189. Accordingly, that paragraph 8.47 of her address is not the place where the claimant should state these material facts because address is not evidence. That the place which the claimant ought to have made the particulars stated in paragraph 8.47 of her address is her statement of facts or reply so that the defendant will have the opportunity of having notice of them and respond, urging the Court to so hold. The defendant concluded by urging the Court to uphold its argument and dismiss the claimant’s case with substantial cost.

 

COURT’S DECISION

  1. From the reliefs claimed by the claimant, the claimant’s case is just a claim for N10,414,232 as outstanding separation (terminal) benefits accruing in favor of the claimant from the defendant. The claim for this sum is particularized as followings: N5,616,915.36, being one year’s gross salary for redundancy; N2,504,529.05, being un-computed payoff/gratuity; and N2,292,788.28, being outstanding performance index pay. Before addressing these respective monetary claims, which are claims for special damages that must be specially claimed and proved strictly, as enjoined by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), I must state that Exhibit D10, a car loan agreement dated 19th May 2010, and Exhibit D10(a), a bill of sale also dated 19th May 2010, cannot be given any evidential value in this case. Exhibit D10 was not signed by the employer and the commencement part has only one party. This makes it an incomplete agreement. An agreement to be valid must have all parties indicated and who must sign it to give it the legal force needed. Exhibit D10(a) is not signed by the employer. Except for contracts under seal, where the contract is validly executed by one party, a contract presupposes an agreement between more than one party who must sign the agreement in order for the agreement to have legal force. That way, the requirement of consensus ad idem of the parties is said to have been met. See Lajibam Auto& Agric Concerns Ltd & anor v. Trade Bank Plc & anor[2014] LPELR-22779(CA). Exhibits D10 and D10(a) will accordingy be discountenanced for purposes of this judgment.

 

  1. The defendant also raised the issue of the admissibility of Exhibit C4, arguing that it offends sections 37 and 46 of the Evidence Act 2011. I shall address this issue as I address the issue of redundancy since it is this issue that gave rise to the said objection of the defendant.

 

  1. In arguing their respective positions, the parties referred severally to decisions of this Court in other similar matters brought against the defendant by its respective former employees. I must state from the outset that each case is distinct from the other and must be decided as per the evidence led in each of such a case. That a claimant failed in one does not imply that another claimant must also fail in his own case. The outcome of a case depends on whether the claimant proved his case on the strength of the evidence presented. A good deal of reliance was placed on such cases by the defendant, yet the cases were decided on their respective merits. For instance, on the issue of redundancy, this Court in Matthew Afolabi v. Sterling Bank Plc unreported Suit No. NICN/LA/297/13, the judgment of which was delivered on 3rd December 2015, held that the claimant’s case failed because he did not prove redundancy, relying instead on conjectures, assumptions and opinions of the claimant himself. What this means is that in the instant case, if the claimant proves redundancy, the Court must grant her recompense despite that a similar claim could not be proved in Matthew Afolabi.

 

  1. Before also addressing each of the monetary claims of the claimant, I must address a submission of the defendant, which is critical to the defendant’s case i.e. that the claimant started her contractual career with the defendant on 29th December 2005 and not when Magnum Trust Bank (MTB) Ltd first employed her. The defendant placed reliance on especially Exhibit C1 (same as Exhibit D5) dated 29th December 2005, the letter of employment it issued the claimant when the claimant transferred her services from MTB Ltd to the defendant. The said letter indicated that the claimant will be bound by the terms and conditions of employment of the defendant. Exhibit C3(d), same as Exhibit D3, dated 1st November 2011, is a letter titled, “Re: Termination of Employment”, issued by the defendant to the claimant after the defendant terminated the employment of the claimant. In it, the defendant put the claimant’s length of service as “13 years 10 months”; and this was “based on [the claimant’s] records with [the defendant] as at [the claimant’s] date of exit”. If the defendant itself indicated that the claimant’s length of service is 13 years 10 months, how can it now argue that the claimant started her career on 29th December 2005? Exhibit C3(d)/D3, a later document by the defendant than Exhibit C1/D5, even in its attachment, puts the date the claimant joined the defendant’s employment as 8th January 1998 and the effective date of termination as 24th October 2011. In any event, Exhibit C1/D5 acknowledged that the claimant was transferred from MTB Ltd to the defendant given the successful merger of the Sterling Bank member banks of which MTB Ltd was one. The law by Afolabi & ors v. Western Steel Works Ltd & ors [2012] LPELR-9340(SC) is that “the purchaser of a company buys its assets and liabilities”. The defendant cannot takeover MTB Ltd without taking its assets and liabilities. The argument of the defendant that the claimant started her contractual career with the defendant on 29th December 2005 and not when MTB Ltd first employed her is accordingly rejected and so is discountenanced for purposes of this judgment.

 

  1. 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.

 

  1. The claimant’s claim for N5,616,915.36 is a claim for one year’s gross salary on the basis of redundancy. It ties in with the first part of relief (1), which is: “a declaration that in the premises of the on-going mass termination of appointments by the defendant, the appointment of the claimant was terminated on ground of redundancy under Chapter 13, paragraph 13.3.3 of the defendant employee handbook…” The second part of relief (1), which is,“…in the alternative the contract of employment between the claimant and the defendant was wrongfully or unlawfully terminated by the defendant on the 24th October 2011”, comes in only if the issue of redundancy fails. I shall accordingly take the issue of redundancy first; and it is in response to it that the defendant also objected to Exhibit C4.

 

  1. The case of the claimant is that there was a redundancy by the defendant, and her employment was terminated as a result of the said redundancy. I must stress here that the case of the claimant is that the defendant veiled the redundancy not to be seen as such, hence the averment of the claimant that the mass staff layoff by the defendant is redundancy by another name. See paragraph 11 of the statement of facts and paragraph 12 of the claimant’s deposition of 25th September 2014. The defendant on its part, argues that there was no redundancy to warrant the claimant succeeding her claim for it.

 

  1. To prove her claim for redundancy, the claimant relied heavily on the state of the pleadings of both parties. The law is that pleadings determine the case a Court is called to resolve. See Aisha Jummai Alahassan & anor v. Mr Darius Dickson Ishaku & ors [2016] LPELR-40083(SC). The claimant’s evidence of mass layoff thus evidencing redundancy is her averments in paragraphs 9 to 11 of the statement of facts, paragraphs 10 to 12 of her deposition of 25th September 2014, and paragraphs 4 of both the reply to the statement of defence and further witness statement on oath of 26th February 2015. In these averments, the claimant simply asserted that the defendant mass laid-off staff, gave some figures (not names) of those laid-off and then asserted for the very first time in her reply to the statement of defence that the defendant’s act offends Article 4 of the International Labour Organisation (ILO) Convention 158 on termination of employment.

 

  1. I must right away discountenance the issue of the ILO Convention 158 raised by the claimant in her reply to the statement of defence. The claimant’s argument about the defendant’s act going contrary to ILO Convention 158 being introduced for the first time in a reply to the statement of defence cannot be allowed as it overreaches the defendant who cannot react to it. Convention 15* has not been ratified by Nigeria; as such it has no automatic application in virtue of section 254C of the 1999 Constitution. See Joshua Abiodun Babalola v. State Security Service unreported Suit No. NICN/LA/605/2015, the judgment of which was delivered on 10th July 2017. It can only apply as evidence of good international practice; in which event it must be pleaded and proved in virtue of section 7(6) of the National Industrial Court (NIC) Act 2006. Having to thus plead it in the reply to the statement of defence means that the defendant is not afforded any opportunity to react to it. This is overreaching the defendant; I so find and hold. The law is that a plaintiff is not allowed (except by way of an amendment) to introduce a new issue in the reply to a statement of defence. See Ughutevbe v. Shonowo& anor[2004] LPELR-3317(SC); [2004] 16 NWLR (Pt.899) 300; [2004] 18 NSCQR 741, APC v. PDP &ors[2015] LPELR-24587(SC),Olubodun v. Lawal[2008] 17 NWLR (Pt. 1115) 1, Egesimba v. Onuzuruike[2002] LPELR-1043(SC); [2002] 15 NWLR (Pt.791) 466; [2002] 9 – 10 SC 1, Unity Bank Plc. v. Bouari[2008] LPELR-3411(SC); [2008] 7 NWLR (Pt.1086) 372; [2008] 2-3 SC (Pt. II) 1 andIshola v. SBN[1992] 2 NWLR (Pt. 488) 405. The argument of the claimant as to the defendant’s act going contrary to ILO Convention 158 is accordingly rejected and discountenanced for purposes of this judgment.

 

  1. The claimant proceeded to assert in same paragraphs 4 of both the reply to the statement of defence and the accompanying further deposition that she challenges the defendant to prove to the Court the 800 workers employed by the defendant to replace the terminated ones. There is no where in the statement of defence that the defendant averred that it employed 800 workers to replace terminated ones. All the defendant stated in paragraph 6 of the statement of defense is that recruitment is ongoing. So the assertion that 800 workers were employed is actually an assertion of the claimant; as such, the burden of proof is on the claimant to prove same, not the defendant’s. I so find and hold. This being so, the claimant did not prove that 800 workers were employed by the defendant to replace the terminated ones. I so hold.

 

  1. In paragraph 6 of the statement of defence (as well as the accompanying paragraph 7 of the defendant’s witness statement on oath), the defendant in reaction to the claimant’s paragraphs 9 and 10 of the statement of facts averred that it is currently not facing any redundancy because recruitment is ongoing for all functions across the bank. To the claimant, this is an evasive or bare denial, which is not a denial at all. A closer look at the pleadings of the defendant is necessary here. What does the defendant mean when it pleaded that it is currently not facing any redundancy? The statement of defence was filed on 5th December 2014. This means that the pleading of the defendant must be read to be as at 5th December 2014. In other words, as at 5th December 2015, the defendant was not facing any redundancy. This does not imply that before that date the defendant did not face redundancy. In fact, it categorically implies that before 5th December 2015, the defendant faced redundancy. The claimant’s categorical pleading in paragraphs 9 and 10 of the statement of facts is that the defendant began systematic down-sizing of its workforce since June 2010; and in 2011 the defendant laid off 200 workers, in 2013, 250 were laid off, and in 2014, 120 were laid off. And that the claimant was one of those laid off in 2011. What kind of denial is expected of the defendant here? It is simply that the defendant did not commence any down-sizing in 2010, did not layoff 200 workers in 2011, did not layoff 250 workers in 2013, did not layoff 120 workers in 2014 and the claimant was not one of those laid off in 2011 as result of the redundancy. This is, however, not what the defendant did; instead it merely started that it is currently not facing any redundancy because recruitment is ongoing. In other words, it faced redundancy before it filed its statement of defence; and now that the redundancy it faced is over, it is once again recruiting. After all, by clause 13.3.2(iii) of the Staff Handbook, Exhibit C2, the defendant is permitted to re-engage staff separated from the Bank’s employment on grounds of redundancy; and such staff will not be required to refund the redundancy benefits received. This being so, the redundancy was after all a sham. This is the implication of the defendant’s averment in its pleadings as to redundancy. It must be noted that the claimant’s case is not that redundancy is ongoing to warrant the denial by the defendant in terms that it is currently not facing any redundancy. The claimant’s case is that redundancy took place in the past and she was a victim. The specific denials that the defendant can make here (but which it did not make) are that redundancy did not take place in the past and that the claimant was not a victim of the redundancy. Once again, like I pointed out, this is not what the defendant did. The averment by the defendant that it terminated the claimant’s employment in the normal course of things forgets that termination as result of redundancy is not abnormal and is as normal a reality of the workplace as other forms of disengagement.

 

  1. The law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. SeeAkande v. Adisa &anor [2012] LPELR-7807(SC),El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 ALL NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359. The defendant cited and heavily relied on Edozien v.Edozien[1998] 13 NWLR (Pt.580)133 at 148 in opposition, arguing that it does not need to answer all the averments of the claimant; instead, all that it needs to do to constitute a traverse of the claimant’s pleadings is to set up a case opposed to that set up by the claimant in herstatement of facts. I do not think the defendant’s case law authority being older in time can withstand such later authorities as Akande v. Adisa &anor [2012] LPELR-7807(SC). The defendant’s denial is accordingly no denial at all; if anything, it is an admission that it faced redundancy within the period indicated by the claimant and that the claimant was one of such who faced redundancy. I accordingly agree with the claimant that the defendant’s denial is evasive and bare and so amounts to no denial at all; instead, it amounts to an admission. I so find and hold. I need to stress a point here. The claimant’s case is that there was a redundancy by the defendant and her employment was terminated by the defendant as a result of the said redundancy. All the claimant needs to prove is the fact that there was redundancy, not the details of the redundancy itself. On the state of the pleadings, therefore, I am satisfied that the claimant discharged the burden required of her in showing that there was redundancy and her employment was terminated as a result of the said redundancy. In holding that the claimant has discharged the burden of proving redundancy on the state of the pleadings, the argument of the defendant that it must first declare the claimant redundant before the claimant’s claim of redundancy can stand is not accordingly tenable; and I so hold.

 

  1. To the defendant, Exhibit C4 offends sections 37 and 46 of the Evidence Act which renders inadmissible hearsay evidence, oral or written. I do not see how section 46 is applicable here. The section deals with the admissibility of evidence in one judicial proceeding given by a witness in another judicial proceeding. This is not the case in the instant suit regarding Exhibit C4. Section 37 disallows hearsay evidence (oral or documentary) from being admissible. The defendant’s argument is that the claimant’s counsel slipped in Exhibit C4 through the backdoor giventhat the claimant had filed her list of documents on 25th September 2014 and Exhibit C4 was not pleaded and listed in the list of documents. That the parties did not join issue on the content of Exhibit C4 as the claimant did not plead any fact relating to Exhibit C4 in her statement of facts. Instead, in her reply to the defendant’s statement of defence, the claimant pleaded the content of Exhibit C4 for the first time in the said reply and filed another list of documents on 25th February 2015 and attached Exhibit C4 without leave of thisCourt. It is thus the contention of the defendant that the filing of Exhibit C4 is meant to spring surprise on the defendant as the defendant has no opportunity to reply to it as pleaded in her reply.Also, that filing Exhibit C4 without leave offends Order 3 Rule 8 of the Rules of this Court, which enjoins parties to file all documents they intend to rely upon during trial at the time of filing their claim or defence. The defendant, therefore, urged the Court to expunge Exhibit C4 from the record having been filed without leave of the Court and to spring surprise on the defendant. It is the defendant who has argued that the claimant started her contractual career with the defendant on 29th December 2005 and not when Magnum Trust Bank (MTB) Ltd first employed her. In answer at paragraph 7 of her reply to the statement of defence, the claimant averred that the defendant had previously calculated the period of service of her colleagues from the time they spent at MTB Ltd, Mr Folaranmi Omokurolue being one of such colleagues. Exhibit C4 was then specifically pleaded by the claimant is same paragraph 7. I do not see how this is springing a surprise on the defendant. Exhibit C4 was meant to show the fallacy of the defendant’s claim that the period of service of the claimant with the defendant does not include the period served with MTB Ltd given that it previously treated other staff as the claimant desires. Exhibit C4 is accordingly admissible; and I so find and hold. The truth of the matter, however, is that with or without Exhibit C4, I have already held that the defendant itself had put the period of service of the claimant as 13 years 10 months. See Exhibit C3(d)/D3.

 

  1. In further answer, the defendant submitted that assuming without conceding that the defendant made an evasive or bare denial of the mass staff lay off (which the claimant pleaded in paragraph 9 of the statement of facts and repeated in paragraph 4 of her reply), which the Court may deem as an admission,the law is that a declaratory relief cannot be granted on the basis of admission as the claimant must rely on the strength of her own case. To the defendant, the first relief of the claimant as constituted both in her complaint and the statement of facts is a declaratory one, which must be proved not on the basis of admission but on the preponderance of evidence as made out in the claimant’s case. This statement of principle by the defendant is correct. But then defendant seems to have forgotten that the claimant’s claim for N5,616,915.36 as per relief (2) is not a claim for a declaratory relief but for an order for the payment of the said sum as one year’s gross salary though on the basis of redundancy. In other words, the claimant can abandon relief (1) and still make out her case on the basis of relief (2), and redundancy becomes only a fact to be proved, which the evasive and bare pleadings of the defendant operated to deem an admission on the part of the defendant.

 

  1. Having held that on the state of the pleadings the claimant has established that there was a redundancy and her employment was terminated as a result of the redundancy, the next issue is proof of her entitlement to the sum of N5,616,915.36 as redundancy benefit. The claimant relied on clause 13.3.2 of the Staff Handbook, Exhibit C2, which provides that if an employee is declared redundant, he/she will be entitled to a monetary compensation depending on the years of service; and such monetary compensation is exclusive of all other entitlements that may be applicable under the Separation Benefits Scheme (if the employee is eligible). For employees who put in 10 years and above, the compensation is one year’s gross salary. Exhibit C3(d)/D3, document from the defendant to the claimant, puts the length of service of the claimant to be 13 years 10 months; and in its attachment, puts the date the claimant joined the defendant’s employment as 8th January 1998 and the effective date of termination as 24th October 2011. It also puts the claimant’s annual gross compensation as N5,616,915.30. But in calculating the claimant’s entitlement as per the attachment to Exhibit C3(d)/D3, the defendant did not factor in redundancy, hence the instant claim by the claimant. From Exhibit C3(d)/D3, the claimant spent more than 10 years in the service of the defendant. Her redundancy entitlement is accordingly one year’s gross salary, which Exhibit C3(d)/D3 already puts as N5,616,915.30. This is the sum that the claimant is entitled to as redundancy; and I so find, hold and order.

 

  1. Clause 13.3.3 of Exhibit C2 provides for termination. First it provides that in the event of termination of employment, the employee will be given notice in writing or paid salary in lieu of such notice. The notice period is, however, not stated. Under common law, where notice period is not stated the court must then take a period that is reasonable. The attachment to Exhibit C3(d)/D3 took one month basic salary as the payment in lieu of notice. Clause 13.3.3(i) of Exhibit C2 talks of payment of salary in lieu of notice; and the salary it talks of is not qualified as basic salary. So, it is wrong for the defendant to have taken basic salary as the yardstick for payment in lieu of notice. Clause 13.3.3(ii) goes on to provide three reasons as the basis of the termination: disciplinary or performance or redundancy. In other words, the employer can terminate for any of these three reasons. The defendant’s argument is that it is not bound to stick to the three grounds stipulated in clause 13:3:3(ii) given the use of the word “may” in the said clause. To the claimant, this is false giventhat in the whole of Exhibit C2, it is only clause 13:3:3 that provides for termination of employment, and the section provides for three grounds under which termination can take place, giving the defendant the option to take any of the grounds and that latitude offered by the three options is the basis of the use of the word “may” in the clause. I agree with the claimant that the use of the word “may” in clause 13.3.3(ii) signifies that the defendant has the discretion to terminate an employment on any of the three listed grounds, not that it has the discretion to terminate on some other ground not listed as the defendant argued. This being the case, it is evident that the claimant had no disciplinary or performance issues with the defendant. The only conclusion must then be that the ground for the termination could only be redundancy. Exhibit C3(c) dated 21st October 2011 was silent on the ground of termination. It terminated the services of the claimant wth effect from 24th October 2011 i.e. three days from the date of the letter. The defendant agues that it terminated the claimant’s employment in the normal course of events; if this were true, the defendant would have simply given the claimant a month’s notice given that it chose to pay one month’s basis salary in lieu of notice. Secondly, under clause 13.3.3 of Exhibit C2, in the event of termination, what is enjoined is a notice of termination or payment in lieu of notice. The defendant gave only three days notice. This is abnormal. For a staff who has spent 13 years 10 months in service, the notice period cannot be 3 days.

 

  1. The defendant chose to pay one month’s basic salary in lieu of notice. This too I have shown to be wrong. Even at this, the payment in lieu of notice was not done contemporaneously with the termination as enjoined by law. See Chukwumah v. Shell Petroleum[1993] 4 NWLR (Pt.289)512. In answer, the defendant submitted that the law is that a party must rely on the strength of her own case. Citingsections 131 and 133 of the Evidence Act, the defendant submitted that theclaimant has not established the issue of non-contemporary of the salary in lieu of notice with the date of her exit from the defendant. She did not tender the account statement of her salary account to enable the Court determine whether the defendant paid her the salary in lieu of notice the same day she exited the defendant or afterwards. To the defendant, Exhibit C3(d)/D3 with its attachment does not constitute account statement of the salary account of the claimant;it is only a computation carried out on the 01/11/11 showing both the entitlement and indebtedness of the claimant. That the computation did not in any way reveal that the defendant paid the basic salary in lieu of notice on the 01/11/11. That the settled law is that no amount of oral evidence, however cogent, can change the content of documentary evidence. In other words, extrinsic evidence is basically inadmissible to add or alter the content of document as the claimant is trying to do in respect of the Exhibit D3 and its attachment. That the question of non-contemporary of salary in lieu of notice as raised by the claimant amounts to speculation and the Court of justice does not act on speculation. That from the foregoing the termination of the claimant’s employment with the defendant was not wrongful but in line with the terms and conditions of contract of employment between the parties represented by Exhibits C1 and C2. All of these submissions by the defendant are uncalled for. It is sometimes surprising the length a counsel would go just to be seen as defending his/her client’s case even when things are obvious enough. How can the defendant’s counsel argue here that Exhibit C3(d)/D3 is only a computation and shows no payment at all? How can the defendant argue that the claimant must tender her account statement just to show whether and when the salary in lieu of notice was paid?

 

  1. Let us take a simple look at Exhibit C3(d)/D3. In calculating the entitlement of the claimant in the attachment to Exhibit C3(d)/D3, the defendant indicated that the entitlement including the one month basis salary in lieu of notice (N61,914.36) to be N3,564,484.16. The defendant had put the claimant’s indebtedness to it as N2,149,132.20. This indebtedness, if deducted from the claimant’s entitlement leaves a balance of N1,415,351.96 as the amount payable to the claimant by the defendant. Note that the payment in lieu of notice is included in this final figure of N1,415,351.96. At the back of Exhibit D3 is manager’s cheque in the sum of N1,415,351.96 drawn in favor of the claimant by the defendant. In law, payment vide a cheque is as good as payment in cash. It is the defendant that tendered Exhibit D3. So how come the defendant’s counsel is saying that the claimant did not prove actual payment of salary in lieu of notice when the defendant in paragraph 32 of its statement of defence and paragraph 33 of its sworn deposition averred that all the separation benefits of the claimant have been paid and the defendant is not indebted to her? I often wonder the level at which advocacy had degenerated to especially when counsel would be prepared to peddle blatant falsehood in the name of advocacy. What other proof is counsel for the defendant looking for when the defendant had admitted paying all entitlements including salary in lieu of notice? The long and short of it is that I am satisfied that the claimant has shown that her termination was as a result of redundancy; and the defendant did not pay salary in lieu of notice contemporaneously with the termination. This is wrong of the defendant; I so find and hold. The claim for termination is, however, an alternative claim to that for redundancy. I have already granted the claim for redundancy; as such I can no longer grant the claim for termination.

 

  1. The next monetary relief claimed by the claimant is N2,504,529.05 being un-computed payoff/gratuity. Ordinarily, byPAN v. Oje [1997] 11 NWLR (Pt. 530) 625 CA, redundancy benefits do not include gratuity benefits as the conditions applicable to redundancy are quite distinct from those applicable to retirement or other conventional mode of relieving an employee from active service, such as termination, resignation or dismissal. In other words, redundancy cannot be claimed simultaneously with gratuity. However, clause 13.3.2(1) states that the payment of monetary compensation for redundancy is exclusive of all other entitlements that may be applicable under the Separation Benefits Scheme (if the employee is eligible). By clause 13.2, the defendant operates a Separation benefits Scheme that includes gratuity and pension. By clause 13.2.1(i), a staff of the defendant may benefit from the Bank’s non-contributory Gratuity Scheme. Clause 13.2.1(ii) then goes on to provide that in order to be eligible for gratuity, the employee would have spent a minimum of five years in the Bank’s employment; and the gratuity would be computed on the basis of the employee’s total monthly emolument for each completed year of service. The claimant calculated her gratuity on the basis of having served the defendant for 14 years. But Exhibit C3(d)/D3 puts her service period as 13 years 10 months. Clause 13.2.1(ii) is very specific that the gratuity would be computed on the basis of the employee’s total monthly emolument for each completed year of service. The claimant competed 13 years of service, not 14 as she puts it. The 10 months she served in 2011 is not a completed year of service. Exhibit C3(d)/D3 puts the claimant’s annual gross compensation as N5,616,914.36, which if divided by the 12 months of the year gives us a monthly gross compensation of N468,076.28. This is the sum the claimant pleaded in paragraph 17(c) of her statement of facts as her gross monthly salary. If N468,076.28 is multiplied by the 13 years’ service the claimant put in, what we have is N6,084,991.64. The defendant as per Exhibit C3(d)/D3 calculated the claimant’s entitlement and put it as N3,564,484.16 from which it deducted the claimant’s indebtedness of N2,149,132.20 leaving a balance of N1,415,351.96 which it paid to the claimant. If N3,564,484.16 is deducted from N6,084,991.64, what we have as unpaid by the defendant is N2,520,507.50. As per paragraphs 18 and 20 of the statement of facts, the claimant is, however, asking for N2,504,529.05. The law is that a court cannot grant more than a claimant asks for. As the Supreme Court puts it in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47:

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.

This being the case, I hereby find and hold that the claimant is entitled to be paid by the defendant the sum of N2,504,529.05 as un-computed payoff/gratuity. I so order.

 

  1. I must point out that the claimant in Matthew Afolabi v. Sterling Bank Plc unreported Suit No. NICN/LA/297/13, the judgment of which was delivered on 3rd December 2015 failed in his claim for the shortfall of gratuity because he“forgot to plead and prove what his total monthly emolument is”. In the words of this Court:

All we have is that in paragraph 12 of the statement of facts (the supporting paragraph in the written statement on oath is 14), the claimant stated that he calculated his severance benefits in accordance with the Staff Handbook and the shortfall in his severance benefit included N12,962,462.81 being one year’s gross salary compensation for redundancy and N336,990.78 being shortfall of one month gross salary in lieu of notice. Nothing else is said on how the claimant came about these figures since his monthly salary (gross or total) is not even pleaded. Meanwhile, in paragraph (8) of the statement of defence and counterclaim, the defence denied paragraph 12 of the claimant’s statement of facts; and even argued that it had paid the claimant all his entitlement as per their contract of employment. The claimant is duty bound to prove his total or gross monthly salary first in order to show how he came by the sum of N6,828,725.08 as shortfall of gratuity for 14 years of service; this the claimant did not do. As such the claim for N6,828,725.08 cannot succeed, and so is hereby dismissed…

 

  1. The third monetary relief claimed by the claimant is N2,292,788.28 being outstanding performance indexed pay for October 2008 to December 2010 and July to October 2011. The claimant had pleaded in paragraph 6 of her statement of facts that her performance rating was always more than 70% and so she was entitled to the payment of performance indexed pay. In denying paragraph 6 of the statement of facts, the defendant in paragraph 3 of its statement of defence merely pleaded the performance pay is at the discretion of the defendant. The defendant did not specifically deny the pleading by the claimant that her performance rating was always more than 70%. So when in its written address the defendant’s counsel asserted that the claimant’s performance was not up to 70%, I agree with the claimant that this assertion is not in the defendant’s pleading, it being raised by the defence counsel in the defendant’s final written address. This is wrong of counsel. The address of a party cannot take the place of evidence (Chabasaya v.Anwasi[2010] 10 NWLR (Pt.1201) 163 at 189). Alternatively put, a counsel cannot give evidence in his written address. The law is that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. And by Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC), a counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence.Adam v. Shaibu & ors [2016] LPELR-40179(CA) puts it that no matter how brilliant a written or oral address by Counsel may be attractive, that cannot take the place of solid evidence before the Court. I accordingly agree with the claimant that it was never the case of the defendant that there was no appraisal or assessment carried out in the period in issue.

 

  1. In making out the claimant’s case, in paragraphs 8.9 and 9.2 of his written address, counsel for the claimant had referred to Kunle Dada v. Sterling Bank decided by my learned brother Dele Peters J. In what are pretty derogatory words, counsel described the judgment of Dele Peters J as being perverse and an error in law even after asserting that what His Lordship did was to hold that there was no evidence even when according to counsel Exhibits C1, C2 and C3d were tendered. Counsel would even go on to accuse Dele Peters J of raising a new defence for the defendant in his judgment without hearing the claimant in that case. These are weighty allegations; and I do not know if counsel understands how weighty the allegations are. I do not know whether or not taking into account pieces of evidence is an error of fact or of law as counsel puts it. Secondly, counsel acknowledged that he is on appeal on the issue to the Court of Appeal. In telling this Court, a court of coordinate jurisdiction with that of Dele Peters J, is counsel expecting that I will sit on appeal over what His Lordship did or what? Thirdly, counsel says that Dele Peters raised a new defence for the defendant and that appraisal rating of the claimant is not in contest in the instant case; as such it is established. Counsel talks with a finality of take it or leave it tone. Counsel must know that in labour relations, like I pointed out earlier, 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. These are not issues that a defendant need even raise; they attach to the very fact that a claimant must prove his/her case in order to succeed.

 

  1. The claimant’s claim is for N2,292,788.28 being outstanding performance pay. The claimant must prove her entitlement to this sum; and proof of entitlement is often by reference to an instrument or document that grants it, not the oral testimony of the claimant except if corroborated by some other credible evidence. How did the claimant come by this sum as performance pay? The claimant’s counsel says that the appraisal rating of the claimant is not in contest here. But the question still remains how the claimant came by this sum. The claimant must prove how she came by this sum in order to succeed. In proof then, the claimant submitted that under cross-examination by the defence counsel, she testified as follows:

Performance index pay is my right – in-fact the right of all employees that have appraisal above 60 percent. It is not an incentive. It is a part of salary.

 

It is true that between 2008 and 2010 there was a global meltdown and recession. Yes, so many banks were affected but the defendant bank was not affected.

 

I do not agree that between 2008 and 2010 nobody was paid performance index pay in the defendant bank.

 

The defendant did not fail. It made profit and paid dividends even in the midst of recession.

 

Yes I was paid performance index pay between January and June 2011.

 

It is not true that I was not paid performance index pay from July 2011 because my performance was not satisfactory.

 

Assessment/rating is posted on the internet but I have no access to the internet. However, I know that my performance rating was 73 percent.

To the claimant, the defendant’s arguments are against the run of facts and evidence before this Court. That she stated her performance rating was above 70% and gave evidence to that effect in her written statement, and under cross-examination; and she tendered Exhibit C2. That at page 34, paragraph9.2.1 of Exhibit C2, it was the defendant that conducted performance appraisal four times in a financial year; so the record was with the defendant locked in its internet network. That the defendant that claimed the claimant appraisal rating was not up to 70% at address stage, had a duty to tender the record, but concealed it. That the law is trite that by virtue of section167(d) of the Evidence Act 2011, it is presumed that evidence which could be and is not produced, would, if produced, be unfavorable to the person who withholds it.

 

  1. The reaction of the defendant at paragraph 2.9 of the reply on points of law is that it is in paragraph 8.47 of the claimant’s final written address that the claimant’s counsel particularized the facts of the N2,292,788.28 being claimed as the outstanding performance index pay or how the claimant arrived at the amount. To the defendant, the law is that the address of a party cannot take the place of evidence. I searched through the final written address of the claimant and found no paragraph 8.47. The claimant addressed the question of N2,292,788.28 she claimed asoutstanding performance pay in paragraphs 9.0 to 9.6 of her final written address, and in no where did she for the first time particularize the facts of the said sum as claimed by the defendant. I do not know where the defendant’s counsel got his facts from.

 

  1. From the pleadings, the case of the claimant is that between October 2008 and December 2010, and from July 2011 to October 2011 she was not paid performance index pay due to her. She put the value of the said performance pay at N2,046,824.00 for October 2008 to December 2010, and that for July 2011 to October 2011 at N245,964.28; both totaling N2,292,788.28. See paragraph 7 of the statement of facts. She relied on Chapter 9 of Exhibit C2 for this claim. See paragraph 6 of the statement of facts. Clause 9.2.1(iii) of Exhibit C2 provides that a staff may be paid a performance pay, which is part of the staff’s salary, based on the staff’s performance measured against the performance targets communicated and agreed with the staff’s supervisor at the beginning of the financial year. Clause 9.2.1(iv) then provides the performance needed for the performance pay based on performance Bands Overall Score. For those who score 0 to 40.99% and 41% to 60.99%, there will be no bonus. For those who score 61% to 75.99% (the group the claimant said she belongs to) the performance indexed pay is “equivalent pay for rating”. What is “equivalent pay for rating” was not explained to this Court by the claimant. The performance targets communicated and agreed with the claimant’s supervisor at the beginning of the financial year was not disclosed to this Court by the claimant. All the claimant did was to rely on section 167(d) of the Evidence Act 2011, claiming that the appraisal rating was with the defendant. Clause 9.2.1(iii) requires that certain targets are communicated to the claimant at the beginning of the financial year. What were these targets for years 2008, 2009, 2010 and 2011, the years for which the claimant is claiming performance index pay? The Court was not told. Merely saying that her performance is more than 70% is not sufficient proof for this relief to be granted. Exhibit C3(a) dated 29th June 2010, a letter promoting the claimant, shows performance indexed pay (20%) to be N1,023,412.00; but this is for year 2010 and does not show the percentage used by the claimant to arrive at N2,292,788.28 she presently claims. As it is, I agree with the defendant that the claimant did not prove her claim for performance index pay. It fails and is accordingly dismissed.

 

  1. Regarding her claim for interest (pre and post judgment), the claimant submitted that where the power to award interest is from a statute, it is not obligatory that same must be claimed or pleaded.In specific support of her case, the claimant cited section 254C(1)(k) of 1999 Constitution, which confers powers on this Court in a dispute arising from payment or non-payment of gratuities, allowances, benefits and other entitlements of any employee and matters incidental thereto. To the claimant, a claim of interest is always an incidental matter to a denial of a sum of money; as such it is a statutory authority for this Court to grant a pre-judgment interest claim. This submission is as weird as it is surprising. How can a provision that grants jurisdiction (not power as the claimant puts it) to hear a matter be the same provision that a claimant will rely on as proof of an entitlement? I cannot fathom this. The reference to the inherent powers of the High Court, which this Court now has, the argument that interest need not be claimed, and the submission that Order 27 Rule 7 of the Rules of this Court does not preclude the award of pre-judgment interest all do not factor that this Court has severally held that it does not award pre-judgment interest. See Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC.

 

  1. In all, the claimant’s case succeeds only in part and in terms of the following declaration and orders:
  • It is hereby declared that the appointment of the claimant was terminated on ground of redundancy under Chapter 13, paragraph 13.3.3 of the defendant’s employee handbook.
  • The defendant shall pay to the claimant as redundancy entitlement one year’s gross salary, which is N5,616,915.30.
  • The defendant shall pay to the claimant the sum of N2,504,529.05 being un-computed payoff/gratuity.
  • All sums payable under orders (2) and (3) are to be paid within 30 days of this judgment, failing which they shall attract interest at 10 per annum until fully paid.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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