LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Mohammed Zubair -VS- Keystone Bank Limited

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

Date:November 19, 2018                                                        Suit No: NICN/IB/54/2016

Between:

Mohammed Zubair              ——————————————–           Claimant

And

Keystone Bank Limited       ———————————————        Defendant

Representation:

O.O. Ogungbade for the claimant; with him areKelly O. Ogbe andToyeseOwoade.

R.A.O. Adegoke for the defendant; with him are LanreBaruwa and OluwasseunShotonwa.

COURT’S JUDGMENT

  1. On May 23, 2016 the claimant filed this complaint against the defendant, and by his Amended Statement of Facts filed on July 12, 2017 at pages 546 to 558 of the record; the claimant is seeking for the following reliefs:
  2. A Declaration that the Defendant’s refusal to pay the Claimant his end of service benefits in line with the Policy and as practiced by the Defendant in her previous retrenchment exercises of employees; particularly those of July and November 2013 amongst others; is wrongful, oppressive, unfair and contrary to the Defendant’s Policy (HCP Manual Revised 2013); which envisages fair treatment and equality to all employed staff.
  3. A Declaration that the Defendant’s refusal to pay the Claimant his end of service benefits in line with the Letter of Employment and the Defendant’s Policy Manual (Handbook regulating the contract of employment between the Claimant and the Defendant); amounts to a breach of contract of employment.

iii.   A Declaration that the Claimant is entitled to be paid his end of service benefits under redundancy as contained in the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised, 2013; to wit: the payment of monetary compensation of the sum of ₦8,716, 672.57K (Eight Million, Seven Hundred and Sixteen Thousand, Six Hundred and Seventy-two Naira, Fifty-seven Kobo) being the 75% of annual salary of a Senior Manager.

  1. A Declarationthat the Claimant is entitled to be paid his end of service benefits under the Gratuity Scheme having spent a minimum of nine (9) years, two (2) months in the services of the Defendant in line with the Defendant’s Policy Manual, to wit: gratuity payment of the sum of ₦10,199, 999.97K (Ten Million, One Hundred and Ninety-nine Thousand, Nine Hundred and Ninety-nine Naira, Ninety-seven Kobo) being the 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the Defendant (7 years).
  2. A Declaration that the Claimant was entitled to the above sums of ₦8,716, 672.57K + ₦10,199,999.97K=₦18,916,672.54K from the Defendant as his final exit entitlement (severance/end of service benefit) at the time of exit from the Defendant’s employment in April 2015.

vi.An Order directing the Defendant to pay the Claimant the sum of ₦8,716, 672.57K(Eight Million, Seven Hundred and Sixteen Thousand, Six Hundred and Seventy-two Naira, Fifty-seven Kobo) being the 75% of his gross annual salary (less tax and bonus) as a Senior Manager.

 PARTICULARS

  • Gross Annual salary——————–₦14,047,055.00K
  • (less tax and bonus)——————— ₦11,622,230.10K
  • 75%  of ₦11,622, 230.10K …….…….₦8,716,672.57K

vii. An Order directing the Defendant to pay the Claimant the sum of ₦10,199,999.97K (Ten Million, One Hundred and Ninety-nine Thousand, Nine Hundred and Ninety-nine Naira, Ninety-seven Kobo) being 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the Defendant (9 years).

            PARTICULARS

  • monthly total package (less bonus) –₦1,133,333.33K
  • number of years————–9
  • total sum——————————–₦10,199,999.97K

viii. An Order directing the Defendant to pay to the Claimant compensation damages (general) of the sum of ₦2,500,000.00K (Two Million, Five Hundred Thousand Naira) for breach of contract of employment and the cost of litigation of this suit.

ix.A post judgment interest of 25% on the judgment sum from the date of judgment until final liquidation of the judgment sum.

Alternative Redundancy Claim Only

  1. A Declaration that the Defendant’s termination of the Claimant’s employment on the 16th of April, 2015 for no just cause is wrongful and thus entitles the Claimant to damages; or

xi.A Declaration that the Defendant’s termination of the Claimant’s employment via forced resignation/involuntary resignation amounts to a constructive dismissal which is wrongful and thus entitles the Claimant to damages;

xii. An Order directing the Defendant to pay compensation damages to the Claimant for wrongful termination of employment/constructive dismissal in the sum of ₦14,047,055.00 (Fourteen Million, Forty-seven Thousand, Fifty-five Naira) being Claimant’s Gross Annual Salary as a Senior Manager.

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearances through its counsel and filed their statement of defence together with its other defence processesin compliance with the Rules of this Court.

  1. CLAIMANT’S PLEADED FACTS

The case of the claimant as pleaded is that he was an employee of the defendant for a period of nine (9) years and two (2) months before his employment was determined on April 16, 2015. He continued that he was employed as a Senior Manager in February 2006 byBank PHB, which was fully operational before it was nationalized by the Nigerian Deposit Insurance Corporation (NDIC) and the Central Bank of Nigeria (CBN) in 2011 to become the Defendant.He went on that he tendered his involuntary resignation from the employment of the defendant following the advice given by the Defendant that it was struggling to cope with high cost/posting losses or undergoing restructuring, and that the Defendant’s Board/Management had approved that the Claimant and some of his colleagues and as such; the Defendant terminated his employment through redundancy. He continued that it is a standard practice of the Defendant whenever it wanted to disengage staff on the basis of redundancy to pay their entitlements in accordance with the Defendant’s HCM Policy Manual, to wit: the payment of their salary in lieu of notice, redundancy and gratuity payment; but that in the claimant’s case, he was only paid basic salary in lieu of notice by the Defendant and nothing was paid to him as redundancy and gratuity.

  1. DEFENDANT’S PLEADED FACTS

The case of the defendant, on the other hand, is that the Claimant was its former employee before his exit from the Bank. It avers that the Claimant did not join the services of the Defendant in February 2006 as a Senior Manager or at any other level at all as alleged and that the defendant was never a successor per se to the erstwhile Bank PHB but a distinct legal entity created on the 3rd day of August, 2016; which acquired the assets and certain liabilities of the said Bank PHB on the 5th of August, 2011;excluding the contract of employment between the claimant and the defunct Bank PHB. The defendant avers further that itdid no declare the Claimant’s services redundant at any and so, the Claimant is not entitled to any payment for Redundancy. The Bank again avers that for reasons best known to him, the Claimant voluntarily tendered his resignation letter to the Defendant and that if payment were made to some exited staff of the defendant by the Bank, it was founded on the defendant’s financial realities at the time in question but denies that any of the ex-staff referred to by the Claimant were paid in accordance with the HCP Manual Revised in 2013.

During hearing of the case, the claimant gave evidence as C.W.1 and tendered in evidence as exhibits, 33 documents while one Julius Oyedeji testified as DW1 on behalf of the defendant who also tendered in evidence as exhibits, 4 documents. Therefore, parties filed their final written addresses through their counsel as directed by the Court.

  1. DEFENDANT’S WRITTEN ARGUMENTS

Counsel for the defendant formulated these issues for determination in his final written address:

  1. Whether the offer of employment by the Defendant to the Claimant vide Exhibit C2 amounts to transfer, retransfer, re-employment or redeployment of the Claimant’s erstwhile services in Bank PHB to the Defendant and; therefore, binding in determining the relationship between the parties.
  2. Whether from the totality of evidence proffered by the parties, the Claimant’s resignation from the Defendant’s services vide Exhibit C4 was involuntary and amounted to termination of employment through declaration of redundancy.

  1. Arguing the first issue, counsel submitted that as provided by the Nigerian adversarial system of law, the burden of proof lies on the Claimant and that the claimant has not discharged this burden in this case, citingSections 131 and 132 of the Evidence Act, 2011 with the cases of:Orlu v. Gogo-Abite[2010] 8 NWLR (Pt. 1196) 307 @ p. 321-322, Para. H-A; Elias v. Disu[1962] All NLR (Pt. 1) 214 at 220; [1962] 1 SCNLR 361 andHamza v. Kure [2010] 10 NWLR (Pt.1203) 630 @ page 649, paras G – H.

Referring to Documents C1 and C2, counsel submitted that there is no doubt at that Exhibit C2 is the letter by which the Defendant- Keystone Bank Limited, offered appointment to the Claimant with details of the terms of the employment and entitlements thereunder. He continued that the commencement date of the employment contract is with effect from August 5, 2011 and that the court is to interpret or enforce the agreement entered into by the parties;citing Ibama v. SPDC (Nig.) Ltd [2005] 17 NWLR (Pt. 954) 364; UBN v. Soares[2012] 29 NNLR (Pt. 84) 329 @ p. 355, Para G; MTN Nigeria Communication Limited v. Corporate Communications Investment Limited [2015] 7 NWLR (Pt. 1459) 437 @ p. 464, Para C-E;Obiake v. Benue Cement Company Plc. [1997] 10 NWLR (Pt. 525) 435 @ p. 447, Paras B-E andSparkling Breweries Ltd v. Union Bank [2001] 7 S.C. (Pt.II) 146 at 166. Counsel went on that the Claimant unequivocally and unconditionally accepted the Defendant’s offer of employment with the terms and conditions attached thereto. He is; therefore, estopped from denying the terms and conditions he voluntarily signed to abide by. Counsel referred the court to the admission of the CW1 under cross examination on this.

  1. On Documents C3, C17 and C19 tendered by the claimant to buttress his claim that the employment from Bank PHB was transferred or redeployed to the Defendant, counsel argued that the purports of Document C3 as evidently demonstrated on oath (at Paragraph 11(iii) of the Defendant Witness’s Statement on Oath) was to assuage the apprehension of former staff of the defunct Bank PHB, who had been engaged by the Defendant that they would be not be required to undergo probation period of six (6) months; unlike the other employees without the requisite banking experience for the various responsibilities in the Defendant/bank. He contended that this document was neither directed to the Claimant nor was the Claimant’s name and or job designation stated therein; rather it is addressed to a class of employees of the Defendant, referring to CW1’s evidence under cross examination.

On Documents C17 and C19 counsel submitted that these documents are not the employment contract executed by the parties; therefore, the documents are extrinsic to the contractual agreement between the parties. He went on that neither document C3, C17, nor C19 can individually and/or collectively supplant and/or be implied to have varied or amended the specific terms of employment embodied in Document C2. To counsel, the only the employment letter is Document C2 and that the terms and conditions statedtherein are prima facie evidence of the existence of employment relationship between parties, citing UBN v. Ozigi[1994] 3 NWLR (Pt. 333) 38;.Morounfolu v. Kwara State College of Technology [1990] 4 NWLR (Pt. 146) 506; Yaktor v. Governor of Plateau State [1997] 4 NWLR (Pt. 498) 216 @ pp. 229-230; Calabar Cement Co. Limited v. Daniel [1991] 4 NWLR (Pt. 188) 750 @ p. 760, Para G-H. Counsel went on that it is trite law that allegations in pleadings must be supported with evidence, otherwise; such allegations will be deemed abandoned. He maintained that in the absence of any credible evidence to the contrary, the employment contract between the Claimant and the defendant commenced on the 5th day of August, 2011; citing FCDA v. Naibi[1990] 2 NSCC Vol. 21, 292 @ p. 300, lines 18-21.

  1. Arguing issue two of whetherthe Claimant’s resignation vide Document C4 was involuntary and amounts to termination of his employment by redundancy, counsel submitted that the Claimant did not adduce any evidence in proof of the alleged forced/involuntary resignation at all neither did he allege that he was declaredredundant by the Defendantso as to entitle him to redundancy benefits. Counsel submitted that it is trite that averment in pleadings upon which no evidence is adduced is deemed abandoned, referring to FCDA v. Naibi[1990] 2 NSCC Vol. 21, 292 @ p. 300, lines 18-21; and also toDocuments C4 to C16, C18, C20 to C33.

Referring to Documents C29 and C30; which are news articles in The Punch Newspaper of Tuesday, 1st October and Thursday, 26th December, 2013 respectively; counsel submitted that while the focus of Document C29 is on Enterprise Bank and not the Defendant, Document C30 reported that the Defendant reduced its staff overhead in 2013 whereas the Claimant’s alleged forceful resignation took place on August 16th 2015. Counsel argued that a chronological calculation of the dates clearly established that the alleged exercises predated and had nothing to do with the voluntary resignation of the claimant on the 16th August, 2015 at all.

Counsel further noted that none of Documents C4 to C11, C.20 to C28 belonged to or were addressed to, or made by the Claimant; therefore,the content of these documentsare documentary hearsay evidence. He submitted that he who asserts must prove, and that the onus is on the person who would fail if no evidence were given on either side, citing Sections 131 and 132 of the Evidence Act, 2011; Ibama v. SPDCN Plc. [2005] 17 NWLR (Pt. 954) 364 @ p. 378-9, Paras G-H;Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 @ p. 316, Para F.

  1. Again on Documents C5 to C11, C20, C20 (a), C21, C21 (a), C22, C22 (a), C23, C23(a), C24, C24 (a) & (b), C25, C25 (a)&(b), C26, and C26, counsel submitted that these documents are either addressed to and/or belonging to the Claimant’s ex-colleagues. None of them was addressed to the Claimant either directly or indirectly or in any other way at all; and none of them was made by the Claimant. Counsel also canvassed that the claimant did not have personal knowledge of any of themneither were the documents in question form part of the continuous record in the performance of the Claimant’s duty while he was in the employment of the defendant to enable him have access to the recorded information in these documents. Counsel went on that the claimant did not show the Court that the maker of any of those documents could not be called as a witness by reason of death, or incapable of giving evidence, or his attendance would occasion unreasonable delay or expenses.  Therefore, these documents are not admissible in evidence, referring to Sections 37, 38 and 39 of the Evidence Act, 2011;Buhari v. Obasanjo[2005] 13 NWLR (Pt. 941) 1 @ page 315 B-D andEgwonowo v. Yakubu[2017] LPELR-43355(CA).

In addition, counsel submitted these documents have not also been tendered by the proper person as specified by rules of evidence; referring to Section 83(1) of the Evidence Act, 2011. He maintained that none of the makers were called to give evidence in respect thereofand that it is settled law that a party who did not make a document is not competent to give evidence thereon citing,Ikpeazu v. Otti[2016] 8 NWLR (Pt. 1513) 93;Belgore v. Ahmed [2013] 8 NWLR (Pt. 1355) 60 @ Page 100, paras E – G; Flash Fixed Odds Ltd. v. Akatugba[2001] 9 NWLR (Pt. 717) 46 @ 63 and Gregory Okonkwo v. The State[1998] 8 NWLR (Pt. 561) 210 at 258.

 

  1. Counsel submitted that the Court is vested with the power to expunge Documents C5 to C11 and C20 to C28 from the record even though, the court had earlier admitted same in evidence; citingEbenighe v. Achi[2011] 2 NWLR (Pt. 1230) 65 @ 79, para D-E;Abolarin v. Ogundele[2012] 10 NWLR (Pt. 1308) 253. He argued furthermore that the claimant failed to lead any evidence to establish, with particularity, the link between Documents C5 to C11 as well as Documents C20 to C28 and how they relate specifically to his own claims and that this failure again extends to Documents C16, C31 and C32 relied on by the Claimant. He referred the court to Ucha v. Elechi [2012] 13 NWLR (Pt. 1317) 330 @ 360 D-H; Abi v. CBN [2012] 3 NWLR (Pt. 1286) 1 @ 28-29, Paras D;Tunji v. Bamidele[2012] 12 NWLR (Pt. 1315) 477 @ 490-492;Iniama v. Akpabio [2008] 17 NWLR (Pt. 1116) 225 @ 300, para A-B andTerab v. Lawan [1992] 3 NWLR (Pt. 231) 569 @ 590. To counsel, the claimant has a duty to establish by evidence not only that he was an employee of the Defendant; he must also prove the terms and conditions of his employment and, lastly, the manner in which the terms have been breached by the employer.
  2. On reliefs for declarative orders counsel submitted that a litigant seeking declaratory relief has the onerous duty to prove his entitlement to such declaratory orders, citing Ezeanuna v. Onyema[2011] 13 NWLR (Pt. 1263) 36 @ p. 69paras. F – H;Aji v. CBDA [2015] 16 NWLR (Pt. 1486) 557;Katto v. Central Bank of Nigeria [1999] 5 S.C. (Pt. II) 21 @ page 25, Lines 1-20;Eya v. Olopade[2011] 11 NWLR (Pt. 1259) 505 @ 525; Ibekwe v. Imo State Educational Management Board [2011] 24 NLLR (Pt. 68) 159 @ page 175. He continued that in addition to the declaratory orders, the Claimant equally sought for an award of the total sum of N18, 916,672.54k as End of Service benefits under redundancy in accordance with the Defendant’s Policy Manual against the Defendants. Counsel submitted that it is settled law that general or compensatory damages are awarded on the basis of the direct, natural or the probable consequences of the acts complained of and the burden of proof of same lies on the complainant to prove that he is entitled to them, citing Dauda v. Lagos Building Investment Company Limited [2011] 5 NWLR (Pt. 1241) 411 @ 429 para F-G;Okoko v. Dakolo[2006] 14 NWLR (Pt. 1000) 61 @ 434, Para C-D andHamza v. Kure [2010] 10 NWLR (Pt. 1203) 630 @ p. 649, paras. G-H.

Finally counsel submitted that the evidential burden of proof placed on the Claimant in this suit remains un-discharged. Accordingly, the Claimant’s claim for wrongful termination of employment must fall together with other reliefs sought.

11.CLAIMANT’S WRITTEN ARGUMENTS

Counsel to the claimant filed his final written address and formulated issues for determination as follows:

  1. Whether the Claimant’s date of joining the Defendant’s employment is February 2006 or August 5, 2011.
  2. Whether the Claimant’s employment was terminated by the Defendant through a force/involuntary resignation.

iii.            Whether the circumstances surrounding the Claimant’s exit from the Defendant’s employment amounts to redundancy as contemplated in the contract of employment and recognized globally.

Before arguing the issues as formulated, counsel to the claimant submitted in response to the defendants objection to the documents tendered by the claimant.

  1. On the admissibility of DocumentsC5 – C11 and C20 – C27 that they are documentary hearsay, counsel submitted that the defendant’s counsel misconceived the provisions of the law and the authorities cited in support of his objection. To him, it is not the intention of the law that it is only witnesses who authored a document or to whom a document is addressed that must tender it in evidence in court before same can be admissible and given a probative value. Relying on the provision of section 12(2)(b) of the NIC Act, 2006; counsel submitted that in the interest of justice, this Court may depart from the provisions of Evidence Act; he also citedNig. Advert Service Ltd vs. UBA Plc&Anor [1999]8 NWLR (Pt. 616) 546 at 555 para G andChitex Industries Ltd v. O.B.I. (Nig.) Ltd [2005] 14 NWLR (Pt. 945) 392 at 411 para G. He further submitted that the Claimant served the Defendant a ‘Notice to Admit Documents’ dated and filed on 21st October, 2016 pursuant to Order 15 of the NIC Rules, 2006; which is in parimateria with Order 34 Rule 2 of the NICN (C.P.) Rules 2017 and also section 20 of Evidence Act. He continued that this process accompanied the Claimant’s Reply to the statement of defence.

13, On the alleged failure to lead evidence on Documents C5 – C11, C20 – C28& C31 – C32;counsel submitted that the Claimant led evidence in support of aforementioned Documents and demonstrated their content in details both in the pleadings and Statement on Oath. He referred the Court to Documents C5 – C11 (pleaded in paragraphs 30 – 35 & 61 – 63 of Amended Statement of Facts and paragraphs 29 – 34 of Claimant’s Witness Statement on Oath. For Documents C20 – C28, he referred to paragraphs 4(d-n), 5 and 6 of the Reply to Statement of Defence and paragraphs 7(d-q), 8 and 9 of Claimant’s Additional Witness Statement on Oath.On Documents C31 – C32, he referred to paragraph 8(a-b) of Reply to Statement of Defence and paragraph 11(a-b)of Claimant’s Additional Witness Statement on Oath.

On what must be pleaded and proved in an Action for Wrongful Termination of Employment, counsel argued that Defendant totally misconceived the Claimant’s main reliefs before the Court. He maintained that the Claimant’s main reliefs as contained in paragraph 64 of the Amended Statement of Facts in reliefs (i) – (ix) is centered on termination benefit; forpayment of redundancy and gratuity. He contended that this is totally different from employment action founded on wrongful termination of employment.

  1. Arguing the first issue of whether the Claimant’s date of joining the Defendant’s employment was in February 2006 or on August 5, 2011; counsel referred the court to paragraphs 8 -24 of the Amended Statement of facts, paragraphs 9 &10 of the Claimant’s Written Statement on Oath and Documents C1,C3 &D4 and contended that the Defendant joined issues with the Claimant in its Defence. He continued that the Defendant’s Witness did not challenge or contradict the above evidence in his written Witness Statement on Oath; which means that the evidence was admitted by the Defendant, more so that the Bank’s Documents D1, D2, and D3 all supported the evidence of the claimant.

On Documents C12, C13, and C14; counsel submitted that the Defendant was established without any assets of its own or its own employees but was simply created for the sole purposes of carrying on and continuing the banking business of Bank PHB Plc. and to assume all the recorded deposit liabilities and other liabilities of Bank PHB Plc. including the employment agreement between Bank PHB Plc. and its staff, particularly the date of the claimant’s employment in February 2006. To counsel, the Claimant is only expected to prove his case on the balance of probability, citing L.S.B.P.C. v. Purification Tech. (Nig.) Ltd [2013] 7 NWLR (Pt. 1352) 182; Registered Trustees, L.C.N. v. Obat [2009] All FWLR (Pt. 477) 67 at pp. 88 – 89. He also referred to the Companies and Allied Matters Act (CAMA) Cap C20 Laws of Federation of Nigeria (2010). Counsel submitted that the absence of any letter expressly determining the employment of the Claimant by either Bank PHB Plc. or the NDIC before Document C2 was issued by the Defendant and with the Defendant’s explanation in Document C3 is proof that the Claimant’s employment was transferred from Bank PHB Plc. to the Defendant without any break in employment and that Document C2 was only a confirmation of the transfer.

  1. On Employer Successor Clause Contained in Document D.2 (PAA Agreement), counsel referred the court to Clause 4.3 of Document D2 at page 15, that this Document provides for the transfer of all employment contracts from the erstwhile staff of Bank PHB Plc. to the Defendant if the Defendant fails to communicate to NDIC by ‘Written Notification’ within ninety (90) days specifying whether it elects to assume or not to assume such employment contract between Bank PHB Plc. and its staff.

On Documents C1, C2 and C3; while conceded that the content of these Documents are different only as to the used of the following words ‘Transferred And Probation’ as already argued by the Defendant at paragraphs 3.6 – 3.8 of Final Written Address,  he; however,  submitted that the argument in paragraph 3.17 of the Final Written Address on the difference between “Senior Executive Associate” in C1 and “Senior Manager” in C2; the Claimant hasexplained and established that phrase “Senior Executive Associate” is the same as “Senior Manager” in paragraphs 9, 10 and 21 of his Written Statement on Oath and that after taking over the banking business of Bank PHB Plc. the Defendant changed the job title of the claimant from‘Senior Executive Associate’ to ‘Senior Manager’. That this can be further seen at paragraph 11(h) of the claimant’s additional Written Statement on Oath, which reproduced the content of pages 88 -89 of Document C15. He referred the court to paragraphs 11(iii) & (iv) of Statement of Defence and paragraphs 13(iii) & (iv) of the Defendant’s Written Statement on Oath, Document C3 and paragraphs 3.9; 3.13; 3.14; 3.15; 3.16; 3.18; 3.27 and 3.32 of the Final Written Aaddress.Counsel urged the court to note the content of Document C2, particularly its title captioned“Re: Employment;”Referring also to Mr. David E. Ukaa&Ors v. Access Bank Plc.unreported Suit No: NICN/LA/198/2011 and submitted thatDocuments C2 and C3 speak for themselves and that oral evidence cannot be used to contradict the content of the documents. He referred the court to Dina v. Northern Nigerian Newspaper Ltd. [1986] 2 NWLR (Pt. 22) 353;Lamurde Local Govt. v. Karka[2010] 10 NWLR (Pt. 1203) 574 at 590-591 CA; F.B.N. Plc. v. M.O. Nwadialu& Sons Ltd. [2016] 16 NWLR (Pt. 1543) 1 C.A at p. 48 para H;Maku v. Al-Makura[2016] 5 NWLR (Pt. 1505) 201 SC;Udo v. State [2016] 12 NWLR (Pt. 1525) 1 SC; Royal Exchange Assurance (Nig.) Ltd. & 4 Ors. v. Aswani Textile Industries Ltd. [1991] 2 NWLR (Pt. 176) 639 at 663 paras E-G andBongo v. Gov., Adamawa State [2013] (Pt. 1339) 403 at 444 para B. He also referred to sections 84 and 85 of the Evidence Act, 2011. Counsel went on that the defendant consistently represented to the claimant that his employment was transferred to the Defendant from Bank PHB Plc. taking into account his years of service with Bank PHB Plc. with effect fromFebruary 2006; and so, the defendant is estopped from asserting the contrary here, citing Oyeyemi v. Commissioner for Local Govt., Kwara State [1992] 2 NWLR (Pt. 226) 661 at 680paras D-F; Ezeonwu v Onyechi[1996] 3 NWLR (Pt. 438) 499; Documents C3, C17 and C19, maintaining that his employment was transferred to the Defendant from Bank PHB Plc. He further referred to C.B.N. v. Igwillo[2007] 14 NWLR (Pt. 1054) 393.

  1. Arguing issues two and three; which are whether the Claimant’s employment was terminated by the Defendant through force/involuntary resignation and whether the circumstances surrounding the Claimant’s exit from the Defendant’s employment amounts to redundancy as contemplated in the contract of employment, counsel contended that the Claimant has led evidence to show that he and his colleagues resigned from the Defendant’s employment on April, 16, 2015 by  Documents C4, C21, C22 & C23 without given the Defendant any notice prior to issuing the resignation letters. Evidence was also led to show that it was the Defendant that paid them salaries in lieu of notice by Documents C19, C21(a), C22(a) & C23(a). Therefore, these evidence show that his resignation was involuntary. He went on that there was also evidence of similar resignation in the past from the Defendant’s employment by Documents C6, C20 &C25(b) before the Court. Counsel submitted that the Defendant admitted making payments to the Claimant in accordance with the terms of the contract in paragraph 18 of its Defence; referring to Sylvester AzukaEgwuatu v. Diamond Bank Plc.[2015] 59 NLLR (Pt. 204) 283 NIC.He further submitted that the failure of the defendant to provide evidence in respect of Exit Appendix Form is in line with page 71 clause 4.0 of the Exit Management Process,Document C13 point to the fact that resignation of the claimant was not voluntary. He urged the court to invoke the provision of Section 167(d) of the Evidence Act, 2011 against the Defendant.

Furthermore, counsel argued that the ex-employees of the Defendant who received redundancy payment as terminal benefits from the Defendant or ex-gratia payment as the Defendant calls it, had the same employment terms with the Defendant like that of the Claimant’s employment’s terms; referring to Documents  C6, C9, C10, C11, C15, C24 (b), C25 (b), C 26, C 27 C 30 & C30 (a) and also toMbilitem v. UnityKapital Assurance Plc.[2013] 32 NLLR (Pt. 92) 196 NIC; Evans Bros. (Nig.) Ltd v.Falaiye[2003] 12 NWLR (Pt. 838) 564 at 588;Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria v. Management of Transatlantic Nigeria Limited [1988] Unreported Suit No: NIC/14/87 delivered by this Court on the 26th of February, 1988; Chemical & Non-Metallic Products Senior Staff Association vs. Benue Cement Company Plc.[2005] 2 NLLR (Pt. 6) 446; Suit No: NIC/7/2000 delivered on the 24th of July 2001; Steyer (Nig.) Ltd v. Gadzama[1995] 7 NWLR (Pt. 407) 305 and Registered Trustees of Union Bank & Another v. Union Bank & Others [2015] 56 NLLR (Pt. 190) 78 NIC.He went on that the onus rests on the Defendant to prove that its current financial position is weaker compared to its earlier financial position when it earliermadeex-gratia payments to exited staff before it can be excused from paying same to the Claimant. However, this argument will only apply where the Court finds that the said payment to the ex-staff was strictly ex-gratia and outside the terms of the contract with no legal obligationto pay same on the Defendant.

  1. On the Claimant’s Membership of Trade Union (ASSBIFI) and the Collective Agreement (Document C16), counsel argued there is no evidence before the Court from the Defendant to show the list of those employees on whose behalf it paid check-off dues for which receipt was issued in Document C32.  To counsel, the Defendant’s failure in this regards means that such list if at all it exist and was produced by the Defendant; would not have been favourable to the Defendant’s case, thus the Defendant decision to withhold it. He urged the Court to invoke the provision of section 167(d) of the Evidence Act, 2011 against the defendant.

On the claimant’s Alternative Relief of Constructive Dismissal, counsel submitted that where the Claimant’s relief for Redundancy payment fails, the Court is bound to consider its alternative claim for constructive dismissal and that as a matter of procedure, a trial Court whose decision is not final is obliged to consider and pronounce on the alternative claim even if the main claim succeeds.  He went further to contend that the law is settled that forced exit/involuntary resignation amounts to constructive dismissal of an employee and this entitles the employee to compensation damages for wrongful dismissal/termination of employment. To him, the failure of an employer to pay an employee all his terminal benefits/entitlements upon the determination of his employment as provided for in the contract of employment go to show that the employer has breached the contract of employment; referring to the cases of Sylvester AzukaEgwuatu v. Diamond Bank Plc. (supra) and Mr. Stephen IlesanmiOlorunda v. First Bank of Nigeria Plc. (supra); Julius Berger Nig. Plc. v. Nwagwu[2006] 12 NWLR (Pt. 995) 518and LUTH & M.B. v. Adewale[1998] 5 NWLR (Pt. 550) 406;Chiedu v. Subaru Motors Nig. Ltd. [2016] 66 NLLR (Pt. 237) 567 NIC; Ijebu Ode Local Government v. AdedejiBalogun& Co [1991] 1 NWLR(Pt. 166) 36;Bello v. AG Oyo State [1986] 5 NWLR (Pt. 45) 828 and UBN Ltd. v. Odusote Book Stores Ltd [1995] 9 NWLR (Pt. 421) 558.Finally, counsel submitted that issues two and three formulated for determination can be resolved on the evidence of who paid monetary compensation in lieu of notice between the parties in compliance with Document C13 and urged the Court to resolve the two issues in favour of the claimant.

  1. The defendant filed a reply address on point of law and in specific reaction to the Claimant’s submission in Paragraphs 5.5 to 5.10 of the Claimant’s Final Address on the admissibility of and/or the evidential premium to be conferred on certain documents tendered by the Claimant (Documents C5-C11 and C20-C27) and reliance on the provision of Section 83(2) of the Evidence Act, 2011 in support thereof; the Defendant submits that: Evidence of a document tendered by a person other than its maker would still amount to documentary hearsay except if the person tendering the document is permitted to so do by virtue of Section 83(1) &(2) of the Evidence Act, 2011. He continued that before a document may be tendered by a person other than the maker, the absence of the maker to tender such document himself must be explained, citing Glorylux Associated Industries Nigeria Limited v. National Provident Fund Management Board [1993] 7 NWLR (Pt. 307) 341 @ p. 349-350 paras H-A;Ayeni v. Dada [1978] NSSC 147 @ 160;ObinnaOsuoha v. The State [2010] LPELR-4669(CA) and Omega Bank Nigeria Limited v. O.B.C. Ltd [2005] 8 NWLR (Pt. 928) 547 @ p. 582, Para B-G.

Counsel further submitted that the case of Nigeria Advert Service Limited v. UBA Plc&AnorandCBN v. Igwillo(supra) are not applicable to this case.

Regarding the contention of the Claimant at Paragraph 6.32 of the Final Address that the word “Re: Employment” as stated in the title of Exhibit C2 connotes the continuation of an already existing employment, counsel submitted that it is trite law that no evidence of custom can override the express terms of a written contract as in this case; citing Leyland Nigeria Limited v. Dizengoff W. A. [1992] 2 NWLR (Pt. 134) 610 @ p. 623, Para B. and to the evidence that was obtained under cross examination; which in his position, suffices in the circumstances of this case; citing Olomosola v. Oloriawo[2002] 2 NWLR (Pt. 750) 172 @ p.123-4, Paras G-B and tosections 132 and 136(1) of the Evidence Act, 2011. Finally on withholding evidence, counsel submitted that Section 167(d)of the Evidence Act 2011 is inapplicable to the Defendant’s case as contended by the Claimant, given that the same documents had been produced at the trial by the same Claimant who pleaded and sought reliance thereon.

  1. COURT’S DECISION

I have carefully read through the facts of this case, the issues as framed and argued by counsel to the parties and their cited authorities; from all of this, I am of the considered view that the followings are issues to be resolved in this case:

  1. Whether or not the claimant’s documents objected to by the defendant are to be discarded/discountenanced and struck out in this judgment.
  2. Whether or not the defendant inherited the liability on the claimant’s employment with Bank PHB so as to make his employment with the defendant be with effect from February 15, 2006 or the employment is with effect from April 5, 2015.

iii. Whether or not the exit of the Claimant from the Defendant’s employment was on ground of redundancy as contemplated in his contract of employment or his resignation was involuntary or forced and amounts to wrongful determination of his employment.

  1. Whether or not the claimant is entitled to payment of gratuity from the terms and    conditions of his employment.

  1. On the Admissibility of the claimant’s Documents.

In all, the claimant tendered in evidence as exhibits, 33 documents; see pages 29 to 227 and 381 to 508 of the record. However, in paragraph 3. 47  of his final written address; counsel to the defendant raised Objection to the admissibility of the following documents relied on by the claimant: Documents C5 to C11, C20, C20 (a), C21, C21 (a), C22, C22 (a), C23, C23(a), C24, C24 (a) & (b, C25, C25 (a)&(b), C26, C27 and C28. One of the grounds of his objection is that many of these documents were not addressed to the Claimant either directly or indirectly; hence they are at large documentary hearsay. Another ground is that these documents ought to have been tendered in evidence through their makers/receivers or at least proper foundation laid before they were so tendered as required by the Evidence Act. Again,counsel objected to others on the ground that they were generated by computer and that the provision of section 84 of the Evidence Act was not complied with before they were so tendered in evidence as exhibits. He, therefore; urged the Court toexpunge the documents from the record, even though the court had earlier admitted same in evidence as exhibits.

These documents being objected to by the defendant are already in the record of this court as exhibits and, it is trite that the court is entitled to look into any document in its record and draw relevant inferences from it;see the case ofAgbahomore v. Eduyegbe[1999] 3 NWLR (Pt. 594) 170 at 182 paragraph E andOyewinle v. Iragbiji [2014] All FWLR (Pt. 731) CA 1536. See also the unreported judgment of this court delivered on October 09, 2018 in Suit No: NICN/IB/48/2016 Between:Darlington Eriseye v. Keystone Bank.Besides, these documents involve several people including the defendant and to insist on calling all of them as witnesses by the claimant for the sole purpose of showing that they were issued by their respective authors, mainly defendant to their respective receivers, who were the claimant’s ex-colleagues; will be cumbersome and will unnecessarily prolong the court’s proceedings.By the provisions of section 12(2)(b) of the NIC Act, 2006; this Court is allowed to depart from the provisions of Evidence Act if the interest of justice will be better served. Consequently, I find and hold that, by allowing the claimant to tender the documents in question in evidence; this Court rightly departed from the provision of the Evidence Act and avoided unnecessary prolong of the proceedings, thereby serving the interest of justice better. Therefore, the defendant’s objection is hereby overruled and dismissed. I further hold that the documents in question were rightly admitted in evidence in this case.

  1. Whether the defendant inherited the liability of the claimant’s employment with Bank PHB and what the date of the claimant’s employment with the defendant is.

 

  1. On whether the defendant inherited the employment of the claimant with Bank PHB.

The claimant pleaded in paragraphs 9 to 21 of the Statement of Facts at page 5 of the record and paragraphs 9 to 21 of the Amended Statement of Facts at page 547 of the record that his employment agreement with Bank PHB Plc. and the years of service already spent with Bank PHB Plc. before he joined the defendant were transferred to the defendant as its liability from Bank PHB Plc. pursuant to a Purchase and Assumption Agreement (PAA) of August 2011 between the defendant and NDIC. On the other hand, the defendant pleaded in paragraph 9 of the Statement of Defence at page 241 of the record stated that the defendant purchased the assets and certain obligations of the defunct Bank PHB, which exclude the existing contract of employment between the claimant and the defendant.The copy of the agreement in question is titled; ‘Purchase and Assumption Agreement (PAA) of August 2011. It is marked as Document D.2 before the Court and it is at pages 266-296 of the record. This document is anagreement between the Nigeria Deposit Insurance Corporation (NDIC) and Keystone Bank Limited, now the defendant. Clause 4.3 of this document is titled: ‘Agreement with Respect to Certain Existing Agreements’ and it provides:

(a)           Subject to the provisions of Clause 4.3(b), with respect to agreements existing as of the Effective Date which provide for rendering of services by or to the Failing Bank, within ninety (90) days after Effective Date, the Assuming Bank shall give the NDIC written notice specifying whether it elects to assume or not to assume each such agreement. Except as may be otherwise provided in this Clause 4, the Assuming Bank agrees to comply with the terms of each such agreement. The Assuming Bank shall be deemed by the NDIC to have assumed agreements for which no notification is timely given.

(b)           The provisions of Clause 4.3(a) regarding the Assuming Bank’s election not to assume certain agreements shall not apply to agreements that are subject to Clause 4.1 and 4.2 but shall apply to employment agreements between the Failing Bank and its employees. — See page 280 of the record.

The provision in Clause 4.3 (b) above means that the provision on election to assume agreement in clause 4.3 (a) applies to contract of employment of the failing Bank. There is no evidence before the Court that the defendant declined assuming liability on existing employment agreement between Bank PHB and its employees; particularly on the contract of employment between the claimant and Bank PHB within 90 days from August 5, 2011 when this Agreement was made as required by this clause.

Even though the agreement quoted above is not between the claimant and the defendant but between the defendant and the Nigeria Deposit Insurance Company (NDIC) from where the defendant purchased Bank PHB; the Law is that “the purchaser of a company buys its assets and liabilities”, see Per Rhodes-Vivour, JSC’s holding in A. O. Afolabi&Ors.v.Western Steel Works Limited &Ors[2012] 7 iLAW/ SC.29/2004. See also paragraph 48 of the unreported decision of this Court delivered on May 24, 2018 inSuit No: NICN/LA/430/2014 betweenMadam OyesolaOgunleyev. Sterling Bank Plc. and unreported judgment of this court delivered on October 09, 2018 in Suit No: NICN/IB/48/2016 betweenDarlington Eriseye v. Keystone Bank. By these decisions, the defendant in the instant case is not allowed to take over only some of the liabilities of Bank PHB, which it purchased as contended by its counsel. But that the defendant takes over all Bank PHB’s pending liabilities as well, especially on employees of Bank PHB that the defendant acquired;including all liabilities on the contract of employment of the claimant with Bank PHB. Consequently, I find and hold that the defendant took over liabilities of the claimant’s contract of employment from Bank PHB.

  1. On the effective date of the Claimant’s contract of employment with the defendant.
  2. It is the case of the claimant in paragraphs 8, 9 and 21 of his Amended Statement of Facts that he joined the services of Bank PHB Plc. on February 15, 2006 by virtue of his employment letter (Document C.1); see also paragraphs 9-10 of his Written Statement on Oath. He went on that after the defendant took over the banking business of Bank PHB Plc. it was together with Bank PHB Plc.’s duties and obligations on its employees including the employment agreement between Bank PHB Plc. and the claimant. He continued that the defendant gave him another letter of employment dated August 5, 2011 but that this second letter of employment transferred his employment from Bank PHB Plc. to the defendant on the same last grade level with Bank PHB Plc. To the Claimant,the phrase “Senior Executive Associate” is the same as “Senior Manager”; see his evidence in paragraphs 10 and 21 of his Written Statement on Oath. He went on that it was after the Defendant took over the banking business of Bank PHB Plc. that it changed his job descriptionfrom‘Senior Executive Associate’ to ‘Senior Manager’. And so, his employment is with effect from February 15, 2006. On the other hand, the defendant pleaded in paragraphs 7 of its Statement of Defence and paragraph 9 (iii) of the written Statement on Oath of the Defendant’s witnessthat the Claimant was hired independently by the Defendant as a Senior Manager (with experience and not on the basis of re-transfer, redeployment and/or continuation of employment or re-employment as alleged). Hence, the Claimant executed and accepted a fresh contract of employment with the Defendant on August 5, 2011.

Document C.2 is the defendant’s Letter of Employment to the claimant dated August 5, 2011; see page 35 of the record. The employment given to the claimant in this document is effective from August 5, 2011. To the defendant’s counsel, it is not stated in this document that the claimant transferred his employment with Bank PHB to the defendant. Therefore; he urged the Court to hold that the claimant did not transfer his employment from Bank PHB to the defendant via Document C.2.It is my finding that the claimant’s argument that his service was ‘Transferred to the defendant by implication vide Document C2 is not the position of the Law as the word transfer is not used in Document C.2 andthe Court cannot read into this document what is not expressly contained therein as it is trite that ‘the express mention of one thing is the total exclusion of others’ see Olanrewaju Commercial Services Ltd v. Sogaolu&Anor [2014] LPELR-24086(CA). ThisCourt is not to allow to read into a term on which there was no agreement between the parties unless there is an ambiguity in the document of contract of employment; see the case of Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) SC 96 at 115 paragraphs C-E.In the circumstance, Ireject this line of argument of the claimant’s counsel and hold that Document C.2 does not state that the claimant’s employment with Bank PHB was transferred to the defendant.

  1. However, Document C.2 is titled “Re: Employment”. The word ‘Re:’ means ‘in the matter of’ (used typically as the first word in the heading of an official document or to introduce a reference in a formal letter); see The Oxford Living Dictionary of the Oxford University Press, 2018. Other words with similar meanings with ‘Re’: are: ‘concerning’, ‘regarding’, ‘about’, ‘on the subject of’, ‘with regards to’ and ‘with reference to’. The word “Re:” is not used to title a letter/Memo or a Formal correspondence on a fresh subject matter. It is an Administrative or Executive word only used to refer to a previous subject matter. Furthermore, it is my considered view that some of the words used in the letter of re-employment of April 5, 2011 (Document C.2) are ambiguous and they need more explanation in order to understand the full content of the document. It is my further view that it was in the light of this that Document C.3 (the internal memo of the defendant of December 13, 2011) titled “Update on Staff Welfare” was issued to give the necessary explanation on the content of Document C.2. Paragraph 2 of Document C.3 is sub-titled ‘Probation and Years of Service’ and it states:

No staff from the erstwhile Bank is on Probation. Keystone Bank has assumed the years of service of all legacy staff. —.

The quoted content of Document C.3 is to the effect that those who became employees of the defendant; like the claimant vide Document C.2 for example, but who were already in the employment of the erstwhile Bank, that is; those who were in employment of the former, previous, past or old bank were not required to be on Probation. Document C.3 continues that Keystone Bank has assumed the years of service of all legacy staff. This means that the defendant has undertaken, accepted, adopted, taken up or taken responsibility of the years of service of all legacy staff; all bequest or inherited staff of the bank acquired or purchased by the defendant from NDIC, including Bank PHB and I so find and hold.From the content of Document C.3, the use of the phrase ‘has assumed’ is in accord with the meaning of the phrase ‘the Assuming Bank agrees to comply with the terms of each such agreement’ used in Clause 4.3 of Document D.2, ‘the Purchase and Assumption Agreement (PAA) of August 2011’ between the defendant and NDICreferred to above and I so find and hold.

  1. Additionally, Document C.19 is the ‘End of Service Advice’ issued to the claimant by the defendant after his resignation. From this document, the defendant states that the claimant joined the Bank on8-Feb-06. Therefore, with all these findings on the date of employment of the claimant, which the defendant has admitted and written official memos/correspondence/letters on; this Court will not allow the defendant to now deny that the claimant’s employment with the defendant was with effect from February 2006.

Consequently, I hold that the years of service of the claimant in Bank PHB were factored into his employment with and assumed by the defendant in  his letter of Re: Employment in Document C.2. Furthermore, I hold that the employment of the claimant with the defendant was with effect from February 15, 2006.

 

  1. Whether the exit of the Claimant from the Defendant’s employment was on ground of redundancy as contemplated in his contract of employment or his resignation was involuntary/forced and amounts to wrongful determination of his employment.

 

  1. Whether the exit of the Claimant from the Defendant’s employment was on ground of redundancy

By his relief No. iii in paragraph 64 of his Amended Statement of Facts at page 556 of the record, the claimant is praying for a declaration that he is entitled to be paid end of service benefits under redundancy as contained in the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013 (Document C.15) to wit: the payment of monetary compensation of the sum of ₦8,716, 672.57K; being the 75% of his annual salary as a Senior Manager of the defendant at his Exit.

Paragraph 8.2 at page 80 of this document provides for Redundancy this way:

‘Redundancy’ occurs when an employee’s job is restructured, or eliminated due to organizational or technological changes or contraction of available work, the causes of which is beyond the control of the Bank. If an employee cannot be placed in another position based on training, experience or qualifications, he is declared redundant.

 

Where redundancy is declared, the affected employee shall be entitled to the monetary compensation as approved by the management as follows which will not be below the collective agreement in line with the country’s labour laws.

In essence, Document C.15 requires that ‘Redundancy’ must be declared in order to entitle the claimant to compensation for it under the terms and conditions of the claimant’s employment.

Document C.4 is the letter of Exit of the claimant from the defendant’s employment. It is titled: “Resignation of Appointment.” It is dated April 17, 2015 and the resignation took effect from that date; see page 42 of the Court’s record.

  1. However, particulars ofredundancy are pleadedinparagraphs 26, 27, 28, 30, 31, 44, 46 and 47 of the Amended Statement of Facts.The claimant even pleaded in paragraph 28 of the Amended Statement of Facts, in particular that Redundancy is required to be declared and he also gave evidence on same in paragraph 27 of his Written Statement on Oath at page 20 of the record.The question is whether ‘redundancy’ was declared by the defendant in respect of the claimant’s employment so as to entitle him to monetary compensation for redundancy. Clearly, there is nothing before the Court showing that ‘Redundancy’ was declared by the defendant against the claimant in the bank at the material time. As shown above, the letter of exit of the claimant from the defendant’s employment is titled ‘Resignation of Appointment’ and not ‘Redundancy’; see Document C.4. Therefore, I find and hold that the claimant is not entitled to any relief for redundancy because he was not declared redundant by the defendant as required in paragraph 8.2 at page 80 of Document C.15 (the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised, 2013).
  2. Whether the claimant’s resignation was involuntary/forced and amounts to wrongful determination of his employment.
  3. It is the case of the claimant as pleaded in paragraphs 37 to 42 of his Statement of Facts that himself and some other employees of the defendant were informed that the Management of the defendant had approved that they should resign from their employments with the defendant immediately, which to him; made his resignation involuntary. Hence, he complied with the instruction promptlyand wrotehis resignation letterstraightaway on April 17, 2015; to be effective same day, as he had no other choice. See Document C.4 at page 42 of the record;the letter is addressed to theHead, Human Capital Development of the Defendant and submitted same day to the Defendant. He went on that on April 28, 2015 he got an email from the defendant through which, his end of service entitlement was computed and that he was even paid the sum of N447,055.00 as his one month basic salary in lieu of notice (although inadequately calculated according to him); see Document C.19 at page 385 particularly at page 386 of the record. He maintained that if his resignation was voluntary, it was him who is required to pay in lieu of notice and not the other way round.

On the other hand,the defendant pleaded in paragraph 17 of the Statement of Defence that the defendant did not inform the Claimant that the Bank was struggling to cope with high cost or posting losses or undergoing any restructure; neitherdid itat any other time demand the Claimant’s resignation on-the-spot nor mandate any of its staff to bring along, the Claimant’s resignation letter with his identification card to Abuja as pleadedby the claimant. The defendant contended that the claimant elected to voluntarily resign with effect from April 16, 2015; which decision, the Bank respected and accepted.

  1. In paragraph 4.1 of the Human Capital Policies and Procedure Manual of the defendant, Document C.15 at page 71 thereof, which is page 107 particularly at page 176 of the Court’s record is titled ‘Exit through Resignation/Retirement’; part of the requirements for an employee of the defendant who is resigning from the Bank is to ensure that adequate prior notice of the resignation is given or that a draft is enclosed in lieu of notice. I find from these evidence that the claimant’s resignation was not voluntary because, if it was; he would have been the one to pay the defendant his one month’s salary in lieu of notice and not the other way round and I so hold. I further hold that by the terms and conditions of employment stated in paragraph 4.1 of Document C.15 at page 71 thereof, which is at page 176 of the Court’s record; the resignation recognised as a means of determining the employment of the defendant’s employee is ‘voluntary resignation’ and not ‘forced or involuntary resignation like the claimant’s resignation in the instant case. Consequently, I hold that the claimant’s resignation in the instant case is not known the parties’ contract and so, it iswrongful. I further hold that the claimant is entitled to compensation for the wrongful determination of his employment in this case. I again hold and order that the defendant is to pay the claimant his six months’ gross salary as compensation for the wrongful determination of his employment.

  1. Whether the claimant is entitled to payment of gratuity.

In his reliefs iv to vii in paragraph 64 of the Amended Statement of Facts, the claimant is seeking for declarations and orderthat he is entitled to be paid gratuity at his exit from the defendant under the Bank’s Gratuity Scheme having spent a minimum of nine (9) years, two (2) months in the services of the Defendant in line with the Defendant’s Policy Manual, Document C.15;which he puts at the sum of ₦10, 199, 999.97K  being the 100% of monthly total package (less bonus) multiplied by the number of years spent in the services of the Defendant (9 years).

As I held earlier in this judgment, the employment of the claimant with the defendant was with effect from February 15, 2006 as stating in Documents C. 1 &C.1(a) at page 34(a) of the record. By the content of Documents C.19 at page 385 of the record before the Court, both parties agreed that the claimant’s employment was determined on April 16, 2015. This means that the claimant’s employment with the defendant was with effect from February 15, 2006to April 16, 2015; which is a period of over 9 years. Document C.15, the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013;providesgratuity schemefor the employees of the defendant who have been in its service for at least 5years; see page 28 of the document at page 133 of the record. See in particular, the first table on this page, which shows that for a staff of the defendant who has served for 5years and above, he will be entitled to 100% of his monthly total package less bonus; multiplied by the number of years spent in the services of the Bank. Since the claimant served the defendant for at least 9years before exiting from the defendant’s employment, I hold that the claimant is entitled gratuity as provided for in paragraph 5.0 under Gratuity Scheme at page 28 of Document C.15 at page 133 of the record.

In paragraph 55 of the Statement of Facts at page 13 of the record and paragraph 55 of the Amended Statement of Facts at page 554 of the record; the claimant pleaded that his monthly salary was N1,133,333.33k. However, in paragraph 23 of the Statement of Defence at pages 247 to 248 of the record, the defendant merely made general denial of this pleaded facts. Also, in paragraph 24 of the Statement on Oath of the claimant at page 20 of the record, the claimant gave evidence that his gross annual income while he was with the defendant was N14,047,055.00 while his Net Annual income less tax and other deductions was N11,622,230.10K. In paragraph 14 of the defendant’s witness’ written statement on oath at page 256 of the Court’s record, the defendant’s witness confirmed that the sum of N14,047,055.00 was the gross salary of the claimant per annum as a Senior Manager with the defendant.He again stated that the claimant’s net salary per annum less tax and other deductions was the sum of N10,901,077.75 at the material time. Thesepleadedfacts and evidence of the defendant on the annual income of the claimant while in the employment of the Bank (both gross and net) need no further prove as they are deemed admitted and I so hold. See the case of Oshodi v. Eyifunmi [2000] 13 NWLR (684) 298 at 337, Para B, Per IguhJSC held that a denial of a material allegation of fact must not be general or evasive, but specific and thatevery allegation of fact if not denied specifically or by necessary implication, shall be taken as established at the hearing. It is well settled that facts admitted need no further proof. See Per PETER- ODILI, JSC’s holding in Baalo v. FRN [2016] LPELR-40500(SC) (Pp. 42-43 paras. F-A). Also in Mr. Sunday AdegbiteTaiwoVs. SerahAdegboro&Anor. [2011] 11 NWLR (Pt. 1259) 562 at 583 per Bode Rhodes – Vivour, JSC held that where facts pleaded by a party is affirmed or acknowledged by the adversary they no longer require proof by the parties.In addition, I hold that as the time of his exit from the defendant, the last gross salary of the claimant with the defendant per annum was the sum of N14,047,055.00 while his last net pay per annum with the defendant less tax and other deductions was the sum of N10,901,077.75.

  1. In order to calculate the six months’ gross salary awarded to the claimant by this Court as compensation for the wrongful determination of his employment by the defendant; the sum of N14, 047,055.00will be divided by 12months and this gives us the sum of N1,170,587.92. If this sum of N1,170,587.92 is multiplied by 6months; it gives us the sum of N7,023,627.62. In the circumstance, I hereby order the defendant to pay the sum of N7,023,627.62 (Sven Million, and Twenty Three Thousand, Six Hundred and Twenty Seven Naira; Sixty Two Kobo) only to the claimant as compensation for the wrongful determination of his employment.

In calculating the claimant’s gratuity with the formula of 100% of his monthly total package excluding his bonusand multiplied by the nine completed years he has worked with the Bank; the claimant’s annual net salary of N10,901,077.75 will be divided by 12months and this gives us the sum of N908,423.14. If this sum of N908,423.14 is multiplied by the 9 completed years of service of the claimant with the defendant, it gives us the sum of N8,175,808.31K. Consequently, Ihereby order the defendant to pay to the claimant, the sum of N8,175,808.31K (Eight Million, One Hundred and Seventy Five Thousand, Eight Hundred and Eight Naira; and Thirty One Kobo) only as his gratuity at his exit from the defendant Bank as its Senior Manager.

  1. On the whole, I hereby declare, hold and order as follows:
  2. I hold that the objection of the defendant to the claimant’s documents is overruled and dismissed as the said documents were properly admitted in evidence.
  3. I declare and hold that the defendant inherited the liability on the claimant’s employment with Bank PHB; and so his employment with the defendant was with effect from February 15, 2006.

iii.               I declare and hold that the exit of the Claimant from the Defendant’s employment was not on ground of redundancy as contemplated in his contract of employment because he was not declared redundant by the defendant.

  1. I declare and hold that the resignation of the claimant from his employment with the defendant was involuntary and forced; hence, it amounts to wrongful determination of his employment.
  2. I declare and hold that the claimant is entitled to payment of gratuityin line with the terms and conditions of his employment.
  3. I hereby order the defendant to pay the claimant the sum of N7,023,627.62 as compensation for the wrongful determination of his employment.

vii.             I hereby order the defendant to pay to the claimant, the sum of N8,175,808.31K  only as his gratuity at his exit from the Bank.

viii.          The defendant is to pay to the claimant the sum of N100,000.00 as cost.

  1. The defendant is to pay his judgment debts to the claimant within 60days from today.
  2. Thereafter, the judgment sum will attracts 10% interest per annum until fully paid.

Judgment is entered accordingly.

Hon. Justice F. I. Kola-Olalere

Presiding Judge

admin

Website:

Related Story