MILLICENT MAKILOLO -VS- ECOBANK NIGERIA LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 18^th day of September, 2019 SUIT NO: NICN/PHC/42/2018

BETWEEN:

MILLICENT MAKILILO………………..……………………………….…………………………………..CLAIMANT

AND

ECOBANK NIGERIA LIMITED…………………..…………………………….…………………….DEFENDANT

Representations:

I.E. Chioma for the Claimant.

Elumeze with B.C. Ugwu and M.J. Micah for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 29^th of March, 2018 along with affidavit of verification, statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

Claimant however amended the compliant and all accompanying process and filed the said amended copies on the 13^th of February, 2019

Arising from the amended complaint and statement of fact, the Claimant claims against the Defendant as follows:

A Declaration that the purported termination letter served on the Claimant by the Defendant dated the 3^rdday of May 2017 is null and avoid.
A Declaration that the claimant is entitled to be paid the sum of N9,053,317.72 (Nine Million, Fifty-three Thousand, Three Hundred and Seventy naira, Seventy kobo) (sic) as gratuity having worked for the Defendant for a period of ten (10) years.
AN ORDER of Court directing and/or mandating the Defendant to pay to the Claimant the sum of N 173, 926, 00 being the remaining salary in lieu of notice to be paid by the defendant out of the N 343, 926, 00 basic salary of the Claimant at the period of the purported termination.
AN ORDER of court directing the Defendant to issue a Certificate of Service to the Claimant as part of the standard eventual termination procedure of the Defendant.

In reaction to the Claims, the Defendant entered appearance on the 27^th of June, 2018 and filed a statement of Defence accompanied by a list of witnesses, witness statement on oath and list of documents. The Defendant also amended all the foregoing processes and filed the amended copies on the 3^rd of May, 2019 along with copies of documents to be relied upon.

Upon the amendment of the statement of defence, the Claimant filed a consequentially amended reply to the statement of defence on the 7/5/20 19

Trial of the suit commenced on the 29^th of October, 2018 with the Claimant opening her case. The Claimant herself was called as sole witnesses as CW1 and she adopted her witness statements on oath which were marked as C1(a) and C1(b) respectively. Through the said CW1, 9 documents were tendered and admitted in evidence as C2 – C10. Exhibit C7 was however admitted under protest.

Arising from the amended statement of fact and witness statements on oath, the case of the Claimant is that she is a trained career banker and was employed by the defendant on June 17, 2008 as an Executive Assistant band K and placed on a salary of N2,634,984.00 per annum. Her employment was also confirmed on 2^nd June, 2009 and was later promoted to Band L, Senior Executive Assistant with remuneration package increased to N 4,761,733.13 per annum on December 31, 2013 and later restructured to N4, 926,205.24 per annum on January 20, 2016.

Claimant averred that she served the Defendant meritoriously and in good faith and was diligent in discharging her official responsibility in the Defendant company but to her greatest surprise, the Defendant terminated her employment in a letter dated 3^rd day of May 2017 without any reason whatsoever contrary to natural justice and Ecobank policy. She averred that the Defendant was dodging from Claimant clocking 10 years’ service with Ecobank, a situation the Defendant do not want the Claimant to achieve by their own gimmick and calculations.

She also averred that the termination was made in gross bad faith, breach of natural justice and contrary to the philosophy guiding cessation of employment of Ecobank Human Resources Policies and Procedure of January 2015 particularly at page 213. Claimant added that out of the sum of N343.926.04 which is her basic salary per month, the Defendant in paying her one month’s salary in lieu of notice, paid only the sum of N 169,954.52. She demanded for the benefits and entitlements through her lawyer but the Defendant failed to reply. Upon being sent a reminder, the Defendant replied that the request is receiving attention but since then the Defendant are yet to pay her hence the suit.

Upon cross examination, CW1 admitted that exhibit C2 provides that either party may terminate the employment by one month notice and that her employment was regulated by Rules and Policies of the Bank. She posited that she disagrees that her employment with the Defendant lasted less than 10 years. She also stated that the Handbook in force during the termination of her employment was that of 2015 and she disagrees that her gratuity was not paid because she was not entitled to it.

Upon the discharge of CW1, the Claimant closed her case and the Defendant opened theirs by calling one witness in person of Anyebe Anebi as DW1 who adopted his witness statement on oath which was marked as D1. Through the said DW1, one document was tendered and admitted in evidence as D2.

Arising from the amended statement of defence of the Defendant and witness statement oath, the case for the Defendant is that the Claimant’s employment by the Defendant was a contractual one regulated by the Claimant’s letter of appointment dated 17/8/2008 which set out the terms of the contract. The Defendant averred that the Claimant and the Defendant were bound by the written terms of the contract of employment between the parties and same gave either party the right to terminate by one month notice or payment of one month’s salary in lieu after confirmation of employment. The Defendant averred that the same letter did not make provision for gratuity or long service entitlement.

The Defendant also averred that though there is a gratuity scheme, it is for employees who had worked for 10 years at the time of leaving the employment and the Claimant did not work up-to 10years. The Defendant denies that the termination was aimed at stopping the Claimant from working up to 10 years and posited that the Claimant’s gross annual pay was N4,926,205.24 which included basic salary, housing, meal, passage, utility, transport, entertainment, leave, furniture, bank car fueling and 13^th month and the Claimant upon termination was paid N169,954.52which covered one month basic salary and accrued pro rata 13^th month salary.

The Defendant concluded that the Claimant is not entitled to any other terminal benefits other than her one month salary in lieu of notice.

Upon the cross examination of DW1, he posited that he is familiar with Exhibits C2 and D2 and that where there is a conflict between the two, D2 will prevail. He admitted that the Claimant’s appointment was terminated by the Defendant and same is called involuntary termination. He also posited that the Claimant was issued a service no longer required. He also admitted that C6 made no disclosure of what led to the termination. He stated that the termination letter states that the Claimant may be entitled to other benefits apart from the one month salary in lieu of notice and gratuity was not paid to her. He denied that monies were deducted monthly for gratuity by the Defendant and admitted that but for Exhibit C6, the Claimant would have been more than 10 years in service.

Upon re-examination, DW1 posited that Ecobank HR Policy and Procedure Dec, 2016 was operational at the time the Claimant was relieved of her job.

Upon the discharge of DW1, the Defendant closed their case and the matter was adjourned for adoption of final address.

The Defendant filed its final written address on the 3^rd of June, 2019 and arising therefrom, counsel to the Defendant, J. Elumeze Esq. formulated four issues for determination to wit:

whether the termination letter dated 3/5/2017 given by the Defendant to the Claimant is null and void
whether the Claimant qualified for and therefore is entitled to gratuity upon the termination of her employment

iii. whether the Claimant’s monthly basic salary at the date of the termination of her employment was N343,926

whether the Claimant is entitled to a certificate of service from the Defendant.

In arguing issue one, counsel cited the case of Western Steel Works Ltd. & Anor. v. I.S.W.U. of Nig. & Anor (1987) LPELR3480(SC) to posit that a declaration is no more than a judicial statement of the state of facts or law between parties. He added that there is no pleading or evidence before the Honourable Court to support a declaration that the termination letter dated 3/5/20 17 served on the Claimant by the Defendant is null and void.

Counsel contended that exhibit C2 makes provision for termination and posited that the Claimant’s employment was terminated by the Defendant’s letter dated 3/5/2017 which was pleaded by both parties, tendered as Exhibit C6 by CW1 and identified by DW1. He added that in Exhibit C6, the Claimant was not given one month notice of termination but was offered one month salary in lieu of notice and same was duly paid by the Defendant to the Claimant on the 15/6/2017 as shown in the bank statement tendered by the Claimant as Exhibit C7. Counsel consequently submits that contrary to the declaration sought, the evidence before the Court clearly and unequivocally shows that the Claimant’s employment was duly terminated in line with the terms of her contract of employment.

Counsel also added that at the time of the termination of the employment of the Claimant, the applicable HR Policy and Procedure of the Defendant was exhibit D2, consequently, the pleading that the termination of the Claimant’s employment was made in gross bad faith, breach of natural justice and contrary to the philosophy of the Claimant’s conditions of service is not supported by the evidence before the court, including Exhibit C10 on which reliance is placed.

Counsel also added that in any case, Exhibit C10 cannot override the provisions of the letter of appointment. He cited the case of Baba v Nigerian Civil Aviation Training Centre (1986) LPELR-21095 CA.

With regards to issue two, counsel contended that gratuity payment under Exhibit D2 is not automatic for exiting employees but subject to qualification. He referred to clause 10.8.3 at page 210 and submitted that it is incontrovertible that for an existing employee of the Defendant to be eligible for gratuity, he must inter alia have served for not less than 10 unbroken years in the services of the Defendant.

Counsel contended that the period of employment of the Claimant was 15/1/2009 when she was confirmed to 4/5/2017 when her employment was terminated. He added that even if the period of probation was used in the computation i.e. 17/8/2008 to 4/5/2017, by simple arithmetic, the period of employment still fall short of 10 years. Hence, the Claimant is not entitled to gratuity.

Counsel posited that the court does not re-write contracts for parties and cited the case of Agbareh v Mimra (2008) 2 NWLR (Part 1071) 378 at P. 414 – 415.

With regards to issue three, counsel contended that both parties in their pleadings are in agreement that what the Claimant is entitled to is one month basic pay in lieu of notice and not one month gross pay. Counsel referred to clause 11.2.3 (2) at page 214 of Exhibit D2.

Counsel argued further that Claimant pleaded her salary restructure mail dated 20/01/20 16 and tendered it as Exhibit C5 and by virtue of the said Exhibit C5, the Claimant’s gross annual pay effective January 2016 was N4, 926, 205.24, but her annual basic salary as stated in Exhibit C5 was N1, 644, 721.14.

Counsel submitted that the court can take judicial notice that there are 12 months in a year and that the Claimant’s basic monthly pay can be determined by dividing her annual basic pay of N1,644,721.14 by 12 as N1,644,721 divided by 12 =N137, 060.095. counsel concluded by urging the court to find that the Claimant’s monthly basic pay was not N343,926.00 as sought by the Claimant in relief 3 of her amended statement of facts, but N 137, 060.095.

With regards to issue four, counsel posited that it is trite law that civil matters are determined by pleading. He cited the cases of Nwokorobia v. Nwogu (2009) 10 NWLR (Part 1150) 553 and Olaniyi v. Elero (2007) 8 NWLR (Part 1037) 517 and contended that there is no iota of pleading of the certificate of service in the amended statement of fact and no iota of evidence in the Claimant’s 2 written statements on oath about the certificate of service and urged the Court to refuse the relief on this ground.

Counsel concluded the address by urging the court to dismiss the suit as wholly lacking in merit.

In reaction to the Defendant’s final address, the Claimant filed her final address on the 24^th of June, 2019 and arising therefrom, counsel to the Claimant I.E. Chioma Esq, formulated four issues for determination to wit:

Whether from the circumstances of this suit, the determination of the employment of the Claimant is wrongful and consequently null and void.
Whether from the circumstances of the case, the Claimant is entitled to gratuity upon the termination of her employment.

iii. Whether by Exhibits C2 and C9 the Claimant is entitled to one month salary in lieu of notice.

Whether the Claimant is entitled to certificate of service from the Defendant.

In arguing issue one, counsel contended that it is trite law that the standard of proof required in civil cases is on the preponderance of evidence and not proof beyond reasonable doubt. Counsel cited the case of Odofin V. Oni (2001) 3 NWLR (Pt. 701) Pae 488 at Page 505 para. F.

Counsel thereon submitted that Exhibit C2 and C3 shows a contract of employment between the Claimant and the Defendant which terms binds the parties in this suit. He cited the case of Okobi V. Sterling Bank Plc (2013) 30 N.L.L.R (Pt. 86) Page 241 Ratio 1 on the significance of terms of employment.

Counsel reckoned that by Exhibit C6, Claimant’s employment was terminated with effect from May 4, 2017 and referred the court to Exhibit C9 at page 215 particularly at 11.2.3 and submitted that it is clear and unambiguous that the parties in this case contracted for one month notice or one month salary in lieu of notice wherein in the circumstance of this case the Defendant is bound to comply with as court cannot look outside the terms between an employer and employee.

Counsel added that by Exhibit C5 (Salary Restructuring) the last one month’s salary of the Claimant is the sum of N343,926.04 which was paid through the Claimant’s account while the Defendant in purporting to comply with the terms in Exhibit C2 paid the Claimant a paltry sum of N169,954.52 contrary to the terms in Exhibit C2 and C9. He then added that the surreptitious act of the Defendant amounted to a wrongful termination of employment of the Claimant with the Defendant and cited the case of Ovoh v. Reliance Telecommunication Ltd. (2013) 32 N.L.L.R, page 123 at pages 149-150, paras. H-B.

Counsel contended that from Exhibits C2, C6 and C9 respectively which are the contractual documents, there is no provision for one month’s basic salary in lieu of Notice. Rather, what the parties contracted for in terms of termination of contract of employment is one month Notice or one month salary in lieu of Notice.

Counsel added that Exhibit D2 is not applicable to the Claimant as there is no evidence to show the sudden change from what the parties earlier contracted. He added that no Memo or any information was given to the Claimant or any staff of the Defendant in that regard and the mere fact that Exhibit C2 provides for staff to familiarize themselves with Exhibit C9 and that same is subject to changes is not an avenue to shortchange the Claimant.

Counsel cited the case of Ovoh v. Telecommunication Ltd (supra) at page 150-151 and submitted that the use of clause 4 of 10.8.3 of page 210 of Exhibit D2 by the Defendant against employees like the Claimant who was not dismissed from service amounts to use of technicalities in commission of fraud and impurity which a court of law and equity will resist

In arguing issue two, counsel cited the case of Bulet Int’l Nig. Ltd and Anor v. Olaniyi & Anor (supra) Vol. 269 LRCN page 21 at 59A to posit that the use of clause 4 of 10.8.3 page 210 of Exhibit D2 against the Claimant who was not dismissed from her employment but rather worked meritoriously with the Defendant amounts to fraud, impunity and technicalities. Counsel urged the court to resist same and resolve issue (ii) in favour of the claimant.

Counsel adopted the foregoing argument for issues three and four and added particularly in respect of issue three that exhibit C7 proves that the last salary paid to the Claimant before Exhibit C6 was made was the sum of N343,926.00 while what the Defendant paid the Claimant after purporting to have terminated her employment was a paltry of N169,954.52 which left a remainder of N173,926.00.

Counsel concluded by urging the court to grant the reliefs sought by the Claimant in this suit and discountenance Defendant’s Defence.

In view of the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination of this suit by this court are to wit:

Whether or not the employment of the Claimant was wrongfully terminated by the Defendant.
Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.

Before resolving the foregoing issues, I must state that Exhibit C7 tendered through CW1 was admitted under protest with the ground of the objection to be addressed in the Final written address and the status of the said exhibit to be determined thereon. However, Counsel to the Defendant failed to address same and the objection is considered abandoned.

Consequently, exhibit C7 is admitted in evidence.

I then turn to issue one. In addressing the said issue, I must state clearly that the different types of employment bears different consequences when terminated. The court in Ujam v. I.M.T. (2007) 2 NWLR (Pt. 1019) 470 at 489 – 490 Paras.F – B,497 Paras.D – H (CA) held that:

“There are three types of employer/employee relationships with different consequences, viz; (a) Under the Common law where, in the absence of a written contract, each party could abrogate the contract on a week’s or month’s notice or whatever the agreed period for payment of wages. (b) Where there is a written contract of employment between an employer and employee, in such a case the court has a duty to determine the rights of the parties under the written contract. (c) (i) Public servants – where their employment is provided for in a statute and/or conditions of service or agreement. (ii) Public servants – as in the civil service. See Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40. ” Per. Galadima JCA.

To further expose on the type of employment which the termination can be declared void, the court in BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:

“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F)

In addition to the forgoing, the court in ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408 held that:

“Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for wrongful dismissal… for this wrongful act, he is only liable in damages and nothing more”.

In view of the foregoing authorities, it is clear to all and sundry that the type of employment in the instant suit is not one regulated by statute but by contract of employment which in other words is reckoned as Master-servant employment. In essence, what the foregoing authorities suggests is that it is the position of the law that the court cannot in the instant case declare the termination of the Claimant’s employment as being null and void if indeed there is an infraction in the process of termination. Rather, the court can only declare same to be wrongful. Hence, the formulation of issue one on the need to determine whether or not the termination of the Claimant’s employment was wrongful.

In carrying out the determination, it is incumbent upon the Claimant to establish that he is an employee of the Defendant and to state and establish how the termination was wrongful and in breach of the contract of employment. The position of the law was reiterated in the case of U.T.C. NIGERIA LTD. v. PETERS (2009) LPELR-8426(CA) where the court held that:

“It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus-

(i) To place before the trial court the terms of the contract of employment;

(ii) To prove the manner in which the said terms were breached by the employer thereof.

See GARUBA V. KIC LTD (2005) s aft e17) 160; JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.” Per SAULAWA, J.C.A (P. 41, paras. A-D).

In attempt to discharge the foregoing onus placed on him by the law, Claimant tendered exhibit C2 as her letter of employment and stated that arising from the letter of employment which was confirmed by Exhibit C3, she was to be entitled to one month salary in lieu of notice which was at the time of her last salary restructure, the sum of N343,926.00. She also contended that the termination of her employment was done to prevent her from attaining ten years in service and therefore contrary to section 11, page 213 of exhibit C9 which is the Ecobank Human Resources Policies and Procedures, January 2015.

Claimant tendered in evidence exhibit C7, the statement of account to prove that the monthly salary last paid to her was N343,926.00 while the Defendant paid only N169,954.52 as the salary in lieu of notice.

Reacting to the foregoing, the Defendant contended that the termination of the Claimant’s employment was in accordance with the provision of Exhibit C2 as the Defendant terminated the employment and issued the Claimant salary in lieu of notice. The Defendant admitted that the sum paid as salary in lieu of notice was N169,954.52 being the basic salary and that was all the Claimant was entitled to. Counsel further posited that the sum being demanded by the Claimant was gross salary and not the basic.

In view of the foregoing contention, I find it apposite to state that the determination of whether the termination of the Claimant’s employment was wrongful as regards the payment of salary in lieu of notice shall be within the provision of the terms of the employment and any other related document. The court in this wise held in the case of ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) that:

“Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356”. Per NDUKWE-ANYANWU, J.C.A. (Pp. 20-25, paras. B-G).

With regards to exhibit C9 which the Claimant referred to with respect to the termination of her employment, the court in JOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA) posited that:

“It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of parties thereto.” Per GUMEL. J.C.A (P. 10, para. C).

Having said that, I have taken a look at exhibit C2 which is the letter of employment of the Claimant dated the 17^th of June 2008 and find that paragraph vi states that:

“The appointment may thereafter be terminated by either party by one month written notice or payment of one month’s salary in lieu of notice”

In choosing to terminate the employment of the Claimant, the Defendant issued the Claimant with exhibit C6 which is dated the 3^rd of May, 2017 . Therein she was informed that:

We write to advise you that in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its right to determine the contract, effective May 4, 2017.

Accordingly, you are entitled to one month’s salary in lieu of notice upon completion of exit clearance. In this regard, the computation of this entitlement together with any others, which you may be entitled to shall be prepared vis-à-vis any indebtedness you may have to the Bank and shall be communicated to you very shortly.

By so doing, the Claimant had her employment terminated and in view of the foregoing, it is clear that the Defendant merely exercised its right to terminate the employment. The courts have repeatedly stated that the employer has the right to terminate an employment at any time as long as he complies with the terms of the contract of employment. In the case of Fakuade v. O.A.U.T.H (1993) 5 NWLR (Pt.291) 47 the Supreme court held that:

“But generally speaking a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the court will have no business with such motive but only to give effect to the contract of service between the parties”. PER KUTIGI, J.S.C. (Pp. 14-15, Paras. G-B).

In view of the foregoing, I must state that I am not oblivious of the provision of section 11 of Exhibit C9, the Human Resource Policy and Procedure which the Claimant tendered in evidence and contended that the Defendant breached same in the termination of her employment. For the sake of clarity, I find it apposite to reproduce the content of the said provision which states thus:

“In every case of cessation of employment, it shall be the company’s objective to make the separation as amicable as possible for both the employee and the company.

It is best for the departing employee to take with him/her a feeling of goodwill toward the company.

The decision to terminate an employee is not one that should be taken without consideration.

A poorly planned or executed termination can lead to months or years of costly litigation. It may also trigger a violent reaction on the part of a desperate employee”

In view of the compliance with the contract of employment in the termination of an employee’s appointment, it is immaterial that section 11 of exhibit C9 provides a philosophy that will guide the termination of employment. The provision did not in any way state that the Defendant will not terminate an employment and neither did it impose an obligation on the Defendant to state why an employment is terminated.

Consequent upon the foregoing, it is apparent that the Defendant in terminating the employment of the Claimant took cognizance of the terms of employment and offered to pay salary in lieu of notice and also made the said payment, however, there is a question surrounding the sum paid to the Claimant as salary in lieu of notice.

In that regard, I have taken a further look at the provision of paragraph vi of exhibit C2 which is the contract of employment and find that the Defendant was to pay ‘one month’s salary in lieu of notice’. There was no use of the word ‘basic’ or ‘gross’ to qualify the said salary.

While Exhibit C5 which is the last salary restructuring of the Claimant outlines the Claimant’s annual salary with a total of N4,926,205.24 and itemizes same to include Basic Salary as an item put at N1,644,721.14, the Claimant proved by exhibit C7 that what she last earned based on the last restructuring was N343,926.00.

Although a division of the sum by 12 months will amount to N410,517.10 however, I have taken a look at the said Exhibit C7 and find rightly so that the last salary paid to the Claimant on the 21/4/2017 was the sum of N343,926.04.

In view of the foregoing finding, the phrase ‘One Month’s salary’ in the context of this case, must be given its practical meaning as what was regularly paid to the Claimant as salary as at the last month of her employment. The court is in no position to input the word ‘basic’ or ‘gross’ to the phrase ‘One Month’s salary’ in the absence of such express provision in the contract of employment that what will be paid as salary in lieu of notice is ‘basic’ salary. What the court can posit is that the Claimant must be paid her full salary as regularly paid before her employment was terminated. In other words, the sum the Claimant is entitled to as salary in lieu of notice is N343,926.04. as against the sum of N169,954.52 paid by the Defendant.

Consequent upon the foregoing, it is the finding of this court that the termination of the Claimant’s employment was wrongful only to the extent that the Claimant was not paid her complete salary in lieu of notice of termination of her employment and to that extent, issue one is resolved in favour of the Claimant.

I then turn to issue two which is ‘whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought’. The resolution of the said issue touches on the reliefs sought and it is consequently apposite to address each of the reliefs seriatim.

Relief one and two are declaratory reliefs and the court in this regard has held in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) that:

”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See: AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).

In view of the foregoing, relief one is for ‘A Declaration that the purported termination letter served on the Claimant by the Defendant dated the 3^rd day of May 2017 is null and void’. With regards to the said relief one, I have stated the position of the law to the effect that an employment of master-servant relationship that is terminated cannot be declared null and void. Same can only be declared wrongful with an attendant remedy by way of damages. Consequently, relief one has no legal basis for consideration and same is accordingly, dismissed.

Relief two seeks the court to make ‘A Declaration that the claimant is entitled to be paid the sum of N9,053,317.72 (Nine Million, Fifty-three Thousand, Three Hundred and Seventeen naira, Seventy two kobo) as gratuity having worked for the Defendant for a period of ten (10) years’.

To be entitled to the said relief, the Claimant bears the burden of proving:

that there exist a term between herself and the Defendant for the payment of the stated sum as gratuity and
that she has earned the said gratuity by working for the Defendant for 10 years.

In attempt to discharge the burden, the Claimant tendered Exhibit C2 as her contract of employment with the Defendant. The Claimant also tendered exhibit C9 which is the Defendant’s Human Resources Policies and Procedures. The Claimant tendered the said documents without specifically stating under which of the two documents her entitlement to gratuity accrued from. Neither is there a pleading as to how the gratuity amounted to the sum of N9,053,317.72.

Worse still, counsel to the Claimant made no specific address in relation to the claim as arising from any of the exhibits before the court to establish how the claim came about. He only contended that Clause 4, 10.8.2 of exhibit D2 is used as a means of fraud against employees like the Claimant who were not dismissed from employment.

In consideration of the denial of the claim by the Defendant however, counsel to the Defendant posited that the claim for gratuity can only be found in exhibit D2, the revised edition of Exhibit C9 which the Claimant contended is not applicable to her since she was not informed of the revision. Counsel to the Defendant referred to Clause 10.8.3 at page 210. Consequently, I have taken a look at the said clause and find rightly so that it provides inter alia that:

Only permanent employees are eligible for gratuity payment”
only payable on separation of employment for whatever cause except as a result of disciplinary action
years of service must be continuous without any break in employment excluding other breaks such as annual leave, sick leave etc.
To be eligible for gratuity payment, staff must have served for not less than 10 unbroken years of services in the Bank without dismissal…

Upon the foregoing, Claimant on the one hand contends that the said exhibit D2 does not apply to her and on the other hand contends that she had served for 10 years period and therefore entitled to the gratuity.

Whichever the case, I find it apposite to consider first whether or not the Claimant served in the employment of the Claimant for 10 years since she had herself through her claims placed herself on a the benchmark of qualification for gratuity on the basis of having served for ten years.

To determine the years of service of the Claimant, I have considered the date of employment via exhibit C2 which is the 17^th of June, 2008. Ten years from that date by applying the rule of computation of time must exclude the stated date. With regards to computation of time, Section 15 (2) (a) of the Interpretation Act states :

“where the period is reckoned from a particular event, as excluding the day on which the event occurs”

Consequently, to count 10 years from the 17^th of June, 2008, the first year will be 16^th of June, 2009 and the tenth year will be on the 16^th of June, 2018. Bearing that in mind, I have taken a look at the notice of termination of the Claimant’s employment and find that the employment was terminated with effect from 4^th of May, 2017. That makes it short of one year, one month and 13 days for the Claimant to be in the service of the Defendant before she can be entitled to gratuity.

In view of the foregoing, the Claimant has woefully failed to prove that she has worked for the Defendant for a period of 10 years and therefore is not entitled to gratuity. Consequently, relief two fails and is accordingly dismissed.

Relief three is for AN ORDER of Court directing and/or mandating the Defendant to pay to the Claimant the sum of N173, 926, 00 being the remaining salary in lieu of notice to be paid by the defendant out of the N343, 926, 00 basic salary of the Claimant at the period of the purported termination.

The grant of the foregoing claim is dependent on the exposition made in the resolution of issue one where this court found and resolved that the termination of the Claimant’s employment was merely wrongful to the extent that the Defendant failed to pay the full salary regularly paid to the Claimant as salary in lieu of notice.

In view of that finding and resolution, I must state that the Defendant also admitted that the sum paid to the Claimant as salary in lieu of notice is the sum of N169,954.52. in this regard, it is trite that facts admitted need no further proof. See ATANDA v. ILIASU (2012) LPELR-19662(SC).

Although there is no such need for further proof, nevertheless, I find from exhibit C7 that the Defendant paid into the Claimant’s account the sum of N169,954.52 as salary in lieu of notice.

Consequent upon the foregoing, I have made a subtraction of the sum of N169,954.52 being what was paid to the Claimant by the Defendant from the sum of N343, 926, 04 being the last salary paid to the Claimant and find that the outstanding sum to be paid is the sum of 173,971.52.

Having found that, I also observe that the sum which this court comes to as outstanding balance is slightly higher than that claimed by the Claimant. Therefore, I am constrained to grant that which the Claimant has herself sought for as the outstanding balance i.e. the sum of N173, 926, 00. This is because the court cannot grant more than that which is claimed before it, although it may grant less. In NITEL LTD. V. IKPI (2007) 8 NWLR (Pt.1035) 96 C.A., the court held that:

“It is settled law that a Court must on no account grant a party a relief which is more than he has sought. The Court can grant a lesser sum than what is claimed, but never more than what is claimed. See MAKANJUOLA v BALOGUN (1989) 3 NWLR (Pt. 348) p.4, ENIGBOKAN v A.I.I. CO. NIG LTD (1994) 6 NWLR (Pt. 348) P. 4; NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD v MUMURI (1977) 2 SC p. 81.” Per RHODES-VIVOUR, J.C.A. (P. 18, paras. E-G) –

Consequent upon the foregoing finding and authority, relief three is granted in favour of the Claimant. In effect, this court makes: an order directing and mandating the Defendant to pay to the Claimant the sum of N173, 926, 00 being the outstanding balance of N343, 926, 04 to be paid as salary in lieu of notice of termination.

Relief four is for an ORDER of court directing the Defendant to issue a Certificate of Service to the Claimant as part of the standard eventual termination procedure of the Defendant.

With regards to this claim, counsel to the Defendant contended that the Claimant made no averment relating to same in the pleadings before this court and therefore there is no pleading or evidence to support the claim.

Counsel to the Claimant who was served the Defendant’s final address and must have read same simply adopted the arguments for other issues in respect of the said claim.

Consequent upon the foregoing, I have taken a further evaluation of all the processes and evidence before the court and I cannot find any fact or evidence in relation the claim made in relief four. In view of the foregoing, I must state that the counsel to the Defendant is right in the sense that the claim cannot be entertained in view of absence of pleadings or evidence relating to the said claim. The Supreme Court in Igbinokpogie v. Ogedegbe (2001) 18 NWLR (Pt.745) 412 held that:

“It is well established now that parties to any action in court are bound by their pleadings and anything outside the pleadings cannot be considered”. Per KALGO, J.S.C.(P.18, paras. C-D).

In addition to the foregoing, the court in the case of Kano v. Oyelakin (1993) 3 NWLR (Pt.282)399 held that:

“It is trite law that where trial is by pleadings, the judgment of the court must be based on the pleadings and not on speculations”. PER OGUNDARE, J.S.C. (P.30, Para.D).

Relying on the foregoing authorities, and in view of the absence of averments in relation to the claim made in relief four, any action or any decision made in respect to relief four by this court will be nothing more than a conjecture and speculation which the courts are forbidden from engaging in.

Consequently, relief four has no factual nor legal basis for consideration and same is accordingly dismissed.

Having considered all the reliefs sought, issue two is therefore resolved largely against the Claimant to the effect that in view of the evidence before the court, the Claimant is found only to be entitled to relief three.

In the final analysis, the claims of the Claimant is found to be meritorious only to the extent at which relief three has been granted. In other respect, the claims are lacking in merit and are accordingly dismissed. I must add that the order made in respect of money to be paid to the Claimant by the Defendant must be paid with 10 days of the entry of this judgment, failure of which same shall attract interest at 20% per annum.

Judgment is accordingly entered.

I make no order as to cost as parties are to bear their respective cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE