IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 16, 2018
SUIT NO. NICN/LA/406/2013
BETWEEN
Mr Dandson O. Obi – Claimant
AND
Access Bank Plc – Defendant
REPRESENTATION
S. J. Uzoigwe, for the claimant.
O. Ojibara, with C. Anaje, K. D. Chukwujekwu and E. Nkanta, for the defendant.
JUDGMENT
1. The claimants had filed this suit against the defendant vide a General Form of Complaint along with other originating processes all dated and filed on 30th July 2013 wherein the claimant seeks the following reliefs as per paragraph 31 of his statement of facts:
(1) The claimant avers that going by the numbers of years he has put in the service of the defendant, he is entitled to the following:
(i) 15 years anniversary outstanding award N418,505.42
(ii) Gratuity (Basic Salary N28,182.42 x 12), N338,189.04 x 17 N5,749,213.68
(iii) Leave Allowance 121/2 and N50,000 ticket N61,515.78
(iv) Transport as recommended on the termination letter N100,000.00
(v) Payment in lieu of Notice N84,547.25
(vi) Reimbursement of 2006 Shares deductions
from the claimant’s account by the defendant N233,486.68
………………….
N6,647,268.81
(2) General Damages in the sum of N20,000,000.00 (Twenty Million Naira).
2. Upon being served with the claimant’s originating processes, the defendant filed its defense processes, which were later amended. Its amended statement of defence and other accompanying processes are all dated 8th November 2016, and pray this Court to dismiss all the reliefs of the claimant as set out in the claimant’s statement of facts. In response to the defendant’s amended statement of defence, the claimant filed a further amended reply dated 26th January 2017.
3. At the trial, the claimant testified in person as CW. Exhibits C1 to C23 were then tendered. The defendant had a sole witness, Mr. Rauf Ogunbayo, who was a Team Member of the defendant’s Vendor and Outsourcing Department at the time material to the events which culminated to this suit. He testified for the defendant as DW. Exhibits D1 to D12 were also tendered. At the close of trial, parties filed their respective final written addresses.
THE CASE OF THE CLAIMANT
4. The claimant was employed on 3rd of October 1995 as a driver by Intercontinental Merchant Bank Ltd, which later metamorphosed into Intercontinental Bank (“IBPLC”) and subsequently after a merger in 2012 in Access Bank Plc, the defendant. The claimant, during his time with the defunct IBPLC was on different occasions transferred to subsidiaries of the said IBPLC. The claimant was given a mortgage loan based on the defendant’s company practice in the sun N4,000,000.00 (Four Million Naira). The claimant was given the said mortgage loan because he had completed ten (10) years of meritorious service to the defendant as was clearly stated under MORTGAGE LOAN in section 3.6 of the defendant’s handbook. The claimant was on 6th October 2005 given a ten (10) years long service anniversary benefits/award via a letter dated 6th October 2005 (Exhibit C4). That the defendant at some point in the course of the claimant’s employment foisted 28,696 (Twenty-Eight Thousand, Six Hundred and Ninety-Six) units of IBPLC public offer shares worth N12.50K per unit, without his consent. That since January 2008, despite the fact that no transfer was effected on the said shares to him, by the defendant, the defendant was deducting N646.25 (Six Hundred and Forty-Six Naira, Twenty-Five Kobo) as interest every month in respect of the said shares. The defendant foisted the said shares on the ground that the repayment for the shares was to be tied to his employment with the defendant. The claimant is also claiming for his unpaid gratuities and entitlements, which were due to him at the termination of his employment.
THE CASE OF THE DEFENDANT
5. The defendant’s case is that the claimant was employed by IBPLC in 1995. He was between 1995 and 2005 transferred to and from different subsidiaries of 1BPLC. In 2005, however, there was a merger of four Banks: Global Bank Plc, Equity Bank P1c, Gateway Bank Plc and Intercontinental Bank Plc; after which a new entity and a new structure emerged. Accordingly, the claimant was consequent upon the said merger, offered a fresh employment and transferred to Intercontinental Properties Limited. Prior to the termination of the claimant’s employment and his subsequent re-employment as at 2005 after the merging of the legacy Banks, the claimant was entitled to Pre-merger/Legacy gratuity of N1,194,165.02 (One Million One Hundred and Ninety-Four Thousand, One Hundred and Sixty-Five Naira, Two Kobo) which was eventually communicated to him. The claimant’s subsequent employment was eventually terminated in 2012 after which the claimant was advised of his entitlements/terminal benefits including his post-merger gratuity. Whilst in the employ of the defendant, the claimant applied for and was allotted 28,696 (Twenty-Eight Thousand, Six Hundred and Ninety-Six) units of the IBPLC shares. The claimant on 16th August 2007 equally applied for and was subsequently granted a mortgage loan in the sum of 4,000,000.00 (Four Million Naira only) via his 16/08/07 letter. Accordingly, defendant asserted that as at the time the claimant’s employment was terminated in 2012, the claimant had a total outstanding debt of N3,215,579.46 (Three Million, Two Hundred and Fifteen Thousand, Five Hundred and Seventy-Nine Naira, Forty Six Kobo only) in respect of the mortgage loan and N143,741.67 (One Hundred and Forty-Three Thousand, Seven Hundred and Forty-One Naira, Sixty-Seven Kobo only) as at 31st August 2012 in respect of the share loan. The claimant’s entitlement was not enough to offset his outstanding; however, the defendant on compassionate grounds offered to pay him a fraction of his indebtedness to help him manage the effect of the loss of his job and applied the other fraction in part liquidation of his debt. However, the claimant could not meet up with the conditions upon which this compassionate offer was made to him which was basically to produce two guarantors to guarantee his outstanding indebtedness. This was the state of the claimant’s entitlement and indebtedness before he proceeded to file this suit.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant first raised two preliminary points i.e. fresh points raised in the claimant’s amended reply; and admissibility of Exhibit C16. On the issue of rising fresh issues in the amended reply, the defendant submitted that the claimant has offended very gravely the cardinal principles of drafting pleadings by raising new issues and making fresh claims in his amended reply filed on 9th May 2017. That the claimant in paragraphs 26(f) and 31(1)f of his statement of facts claimed as one of his reliefs thus: “f. Re-imbursement of 2006 Shares deductions from the Claimant’s account by the Defendant : N233,486.68”. That a thorough perusal of the claimant’s 31 paragraphed statement of facts would readily reveal that the claimant failed to disclose particulars as to the details/nature of the deductions, the occasion, the duration, the summation or any other details that would aid the Court in appreciating how he arrived at the sum of N233,486.68 (Two Hundred and Thirty-Three Thousand, Four Hundred and Eighty-Six Naira, Sixty-Eight Kobo) claimed. That the only claim as to deductions relating to share loan is seen in paragraph 18 of the statement of facts where the claimant claimed that “…since January 2008, despite that no transfer was effected on the purported shares allocation to him, Intercontinental Bank Plc (now Access Bank Plc) was deducting N646.25…interest every month”. Accordingly, that this alleged deduction of interest is the only specifically pleaded fact as to deductions relating to share loan. That there is absolutely no correlation between a deduction of N646.25 as interest every month from January 2008 to 31st August 2012 when the claimant’s employment was terminated and N233,486.68 (Two Hundred and Thirty-Three Thousand, Four Hundred and Eighty-Six Naira, Sixty-Eight Kobo) claimed in the said relief. The figures do not add up at all.
7. The defendant went on that, however, on 9th May 2017, the claimant filed an amended reply in response to the defendant’s amended statement of defence and therein for the first time raised the issue of share loan repayment deductions in the body of the pleading (reply) and made a feeble attempt albeit unsuccessful attempt, to give the particulars of the said deductions, referring to paragraphs 14, 17, 18, 19, 20 and 21 of the claimant’s amended reply. That the claimant claimed in paragraph 18 of his statement of claim that since January 2008 the defendant had been deducting the sum of N646.25 as interest every month without any particulars as to how long the said deductions lasted or the total sum of alleged deductions made as interest by the defendant. That in his reliefs he claimed N233,486.68 (Two Hundred and Thirty-Three Thousand, Four Hundred and Eighty-Six Naira, Sixty-Eight Kobo). However, now realising at his case is fatally flawed as his relief is in the nature of special damages, which must be specifically pleaded and proved, he now proceeded in paragraph 20 of his amended reply in issue to give details as to duration of the purported deductions and the total sum deducted. That for the first time we learn that the monthly interest deduction amounts to N36,190.00 (Thirty-Six Thousand, One hundred and Ninety Naira). We also for the first time are confronted with the sum of N4,591.11 (Four Thousand, Five Hundred and Ninety-One Naira, Eleven kobo) as share loan repayment deductions for fifty-six (56) months. Then we also read about various sums deducted from various months ranging between October 7 and August 2010. Finally, that the claimant adds up all these new figures and comes us with the total sum of N293.292.16 (Two Hundred and Ninety-Two Naira, Sixteen Kobo), which is a completely new total figure different from that claimed in the reliefs in the statement of facts; all raised for the first time in the reply. To the defendant, the claimant cannot spring these surprises on the defendant or blindside the defendant since the defendant has no right f reply to a reply, citing Olubodun v. Lawal [2008] 17 NWLR (Pt. 1115) 1 at 33, which held that a plaintiff is not allowed, in law to introduce new issue, indeed fundamental issue as that in the instant case, without the leave of court; and a plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim. Also cited is Gbadamosi v. Okege [2011] 3 NWLR (Pt. 1233) 175 at 203. The defendant then urged the Court to strike out the offending paragraphs 14, 17, 18, 19, 20 and 21 of the claimant’s amended reply and consequentially refuse the claimant’s relief (1) on the ground that there are no facts in the body of the claim that cloak that relief with the requirement that it has to be specifically pleaded and by extension specifically proved, citing Ogbonna v. Ogbonna & anor [2014] LPELR-22308(CA), Arabambi v. Advance Beverages Industries Ltd [2005] 19 NWLR (Pt. 959) 1, Vinz International Nigeria Ltd v. Morohundiya [2009] 11 NWLR (Pt. 1153) 562 and Adim v. Nigerian Bottling Co. Ltd [2010] 9 NWLR (Pt. 1200) 543.
8. On the admissibility of Exhibit C16, the defendant submitted that the said exhibit is computer generated evidence and so is required to be accompanied by a certificate of compliance in line with the provisions of section 84 of the Evidence Act 2011, citing Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534 at 579. The defendant then urged the Court to hold that Exhibit C16 is inadmissible in law as clearly the provisions of section 84 were not complied with, citing also Rosehill Ltd v. GTB [2016] LPELR-41665(CA); and hence discountenance it, referring to Unity Life & Fire Insurance Co. Ltd v. International Bank of West Africa Ltd [2001] LPELR-3412 (SC).
9. The defendant then submitted a sole issue for determination i.e. whether on the strength of pleadings and materials placed before this Honourable Court and in consideration of all the surrounding facts and circumstances, the claimant has proven on the preponderance of evidence, that he is entitled to all or any of the reliefs claimed in the instant suit and the sister suits. The defendant answered in the negative, citing sections 131(1) and 133(1) of the Evidence Act 2011 and SCC (Nig.) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 28 at 63. The defendant then addressed each of the claimant’s reliefs.
10. On the claim for 15 years anniversary award in the sum of N418,505.42, the defendant submitted that there is no scintilla of evidence led by the claimant as proof to his entitlement to this sum. That the claimant did not refer to any law, document, contract, provision of the handbook that entitles him to this amount as of right. That the law is trite that pleadings for which no evidence is led is deemed abandoned and cannot be countenanced by the Court, citing Idesoh v. Ordia [1997] 3 NWLR (Pt. 491) 17 at 27 and Adegbite v. Ogunfaolu [1990] 4 NWLR (Pt. 146) 578 as well as paragraph 12 of its amended statement of defence, where the defendant denied the claim for anniversary award. Additionally, that defendant adduced evidence to the effect that there is no provision in the IBPLC Staff Handbook (Exhibit C15) for payment of any anniversary award to an employee and the claimant’s various letters of employment and promotions admitted in evidence to wit: Exhibits C1, C3, C5 and C6 all bear out that there is no such entitlement like anniversary award due to him. Accordingly, that the claim fails in its entirety, urging the Court to so hold.
11. On the claim for gratuity in the sum of N5,749,213.68 (Five Million, Seven Hundred and Forty-Nine Thousand, Two Hundred and Thirteen Naira, Sixty-Eight Kobo), the claimant had argued that he served the defendant and its subsidiaries for 17 years and as such was entitled to the sum claimed as gratuity. In arriving at the sum claimed, the claimant applied 100% of his annual basic salary as at 2012 and multiplied same by 17 years. To the defendant, worthy of note however, is the fact that the claimant failed to lead any evidence whatsoever to show where the mode of calculation of his gratuity was derived from. That there is nowhere in the Staff Handbook or any of the contracts of employment tendered in evidence where it is remotely even stated that the claimant’s gratuity must be calculated using 100% of his basic salary. In point of fact, that neither the Staff Handbook nor the contracts of employment have any provision as to the mode of calculation of gratuity rather it is the exclusive preserve of the defendant to determine from time to time, how to process gratuities as can be gleaned from Exhibit D2.
12. In response to the claimant’s claim for gratuity, the defendant in paragraph 5 of its amended statement of defence made averments to the fact that though the claimant was employed in 1995 and transferred to Intercontinental Properties Limited (“IPL”) prior to the 2005 merger between the defunct Intercontinental Bank and the Legacy Banks. That upon the merger of the Banks and the emergence of a new entity, the claimant was offered a fresh appointment on 18th November 2005. That DW also led evidence to this effect as can be seen in paragraph 9 of his witness statement on oath of 8th November 2016. The defendant also led evidence to the effect that sequel to the 2005 merger, the claimant was advised as to his pre-merger gratuity/entitlement. Specifically, the claimant was advised that his gratuity for the period between 1995 to 2005 (when the merger took place) was assessed at N1,194,165.02 (One Million, One Hundred and Ninety-Four Thousand, One Hundred and Sixty-Five Naira, Two Kobo). That this much is contained in Exhibit C14, the defendant’s response to the claimant’s counsel’s demand letters (Exhibits C13, C13A and C13B). That this piece of evidence was not rebutted in any way by the claimant. That the claimant’s only grouse remained that he was not paid off after the merger, hence his employment was not terminated. That he offered no form of response/denial as to whether or not he was advised of his pre-merger entitlements at any point in the course of deliberations on his terminal benefits; as such, he is deemed to have admitted knowledge of his pre-merger entitlement, especially as same was detailed in Exhibit C14 received by his counsel.
13. The defendant went on that the claimant was consistent in maintaining that all the letters he received sequel to his employment letter of 1995 stated clearly that his transfer/terms of transfer as it were does not in any way affect his initial employment with the Bank. He placed heavy reliance on Exhibits C1, C2, C2A and on that note concluded that his employment was not in any way affected by the 2005 merger. The defendant called for the examination of Exhibit C5 side by side with Exhibits C1, C2 and C2A, which reveals three notable points thus:
(a) Whereas Exhibits C1, C2 and C2A all bear the title “Transfer of Service” simpliciter, Exhibit C5 is titled in bold, “Letter of Appointment/Transfer of Service”.
(b) Whereas the operating words in the opening sentences of Exhibits C1, C2 and C2A all read “…we hereby advise that you are to be transferred…”, “…we hereby advise the transfer of your services…” and “…your services have been transferred…” respectively, Exhibit C5 takes a different tone and reads “…we are pleased to CONFIRM YOUR APPOINTMENT as a CHAUFFEUR GRADE 4 with effect from November 1, 2005 on the following terms and conditions”.
(c) Finally, whereas it was stated clearly in Exhibits C1, C2 and C2A that his remuneration and conditions of service were not affected by the transfers therein indicated, Exhibit C5 had a different approach and outlined in details the terms and conditions of his new employment. In point of fact, Exhibit C5 is by all standards an offer of employment/appointment with terms and conditions expressed therein and a column provided for acceptance of offer of employment which the claimant indeed signed.
14. To the defendant, a perusal of the said Exhibit C5 in line with the points made above will reveal that the said document is a letter of appointment/offer of employment void of any ambiguity and has no semblance with Exhibits C1, C2 and C2A (the letters of transfer relied upon by the claimant) whatsoever. The defendant then asked under what circumstances the claimant can stake a claim for gratuities for an unbroken period of 17 years. That it is a struggle to see how such a claim is sustainable in view of the evidence before the Court that the claimant was offered fresh employment in 2005 under fresh terms. From this prism alone and in circumstances where the claimant applies a single criteria for the calculation of his gratuity for the entire 17 years, his claim must fail, urging the Court to so find.
15. The defendant continued that after the merger, the claimant like every other employee was informed that his pre-merger entitlement/gratuity was assessed at N1,194,165.02 after which Exhibit C5 was issued to him. That consequent upon the claimant’s acceptance of the fresh offer as per Exhibit C5, the said pre-merger gratuity was housed and upon the termination of his employment/exit from the Bank and in the course of deliberations as to his entitlements, his gratuity from his fresh employment which spanned between 2005 to 2012 was assessed at N1,409,232.20 and added to his pre-merger gratuity to bring his total entitlement to N2,603,397.22, which was communicated to the claimant and his counsel as can be gleaned from Exhibit 14.
16. On the calculation of the claimant’s gratuity, the defendant referred to paragraph 5(c) of the its amended statement of defence and paragraph 9(b) of DW’s deposition, and then submitted that the qualification for gratuity in the defendant is 10 years of continuous service to be entitled to 100% of gross salary. That the claimant was initially employed in 1995 and that first employment came to an end in 2005 sequel to the 2005 merger bringing his total year of service prior to the merger to 10 years. That the defendant in calculating the claimant’s gratuity for the 10 years period he had worked prior to the merger multiplied 100% of the claimant’s gross annual basic salary as at his last promotion prior to the merger which was 2nd January 2004 (Exhibit C3) with the number of years of service (10 years) to arrive at the approximate sum of N1,194,165.02. Accordingly, hat at the time the claimant’s employment was terminated, his gratuity from 2005 when he was offered the fresh employment till 2012 was calculated and same amounted to the sum of N1,409,232.20. That the claimant did not deny the new gratuity policy of the defendant but only argued that the Internal Memo ought to have been the defendant’s letter head. That the summation of these two sets of gratuity benefits amounted to N2,603,397.22 which the defendant communicated to the claimant and his lawyer vide Exhibit C14.
17. Continuing, the defendant submitted that DW led evidence to the effect that the claimant at the time his employment was terminated was indebted to the defendant to the tune of N3,215,579.46, the said indebtedness being a summation of the outstanding balance from N4,000,000.00 mortgage loan granted to him vide Exhibit C9 and his 2006 share loan. That it is in evidence and uncontroverted that it is the defendant’s policy to net off staff indebtedness from the entitlement once the employment is determined by whatever means. That seeing, as the claimant’s indebtedness to the defendant far outweighed his entitlement, the defendant worked out a plan and decided to pay the claimant the sum of N949,390.00 out of his entitlement to help cushion the effect of the loss of his job and apply the remainder of the entitlement, N1,654,006.66, to part liquidate his indebtedness. That this arrangement was made to the knowledge of the claimant as he was asked to provide a repayment plan for the outstanding loan sum of N1,561,572.80 and two guarantors to give effect to this understanding so reached. It is interesting to note at this point that the claimant in several of his letters to the defendant admitted his indebtedness to the Bank, citing the claimant’s letter dated 13th December 2012 (Exhibit C12) as well as the pay slips, Exhibits D10(b), D10(c) and D10(d). That facts admitted need no further proof, citing Mr Chinedu Ukachukwu & anor v. Mr Sylvester Nkpado [2012] LPELR-15421(CA). That the evidence before the Court show that the claimant was indebted to the Bank as at the time his employment was terminated. It also shows clearly, that the claimant’s indebtedness far outweighs his entitlement. Accordingly, the claimant’s bogus claim to the sum of N5,749,213.68 as gratuity is baseless and unfounded, urging the Court to so hold. In any event, that the claimant from the evidence agreed to the defendant’s compassionate offer made to him and even attempted to provide a repayment plan as can be seen in Exhibit D5, till his last letter dated 14th March 2013 wherein he stated that he could not find any guarantor as agreed and subsequently briefed a lawyer who wrote his first demand letter to the defendant on 17th April 2013, barely one month after the claimant claimed he could not get a guarantor as agreed.
18. The defendant went on that the claimant in a bid to be mischievous averred in paragraph 11 of his deposition in support of his amended reply that he was cajoled and convinced to take a loan in the sum of N949,390.56 and to sign the letter dated 14th March 2013 sometime in December 2012. That this claim of being cajoled was raised for the first time ever in the claimant’s amended reply. That it was after seeing the defendant’s defence that he suddenly remembered that he was cajoled to take an additional loan and to sign a letter. Even at this, that he failed to give particulars as to how he was cajoled, who cajoled him, where exactly he was cajoled to sign the said letter. That under cross-examination, the claimant was shown paragraph 12 of his witness statement on oath and upon reading out same, he exclaimed “am I the one that wrote this”. The defendant then asserted that this is clearly not a witness of truth. That his reaction in open Court to paragraph 12 of his own witness statement on oath is evidence that his pleadings and witness statement on oath were prepared for him to just sign.
19. The defendant proceeded that the claimant in the heat of cross-examination when shown Exhibits D4 and D5 stated thus: “Yes Exhibit D5 is the letter I was forced to sign. The signature there is mine. The signature on Exhibit D4 is not mine”. To the defendant, first the Court should believe and act on the contents of D5 based on the claimant’s failure to provide evidence of being cajoled and more importantly the amnesia he developed when confronted with his own witness statement. Second, the claimant did not deny making Exhibit D4 in his pleadings. He only stated in his amended reply that he was forced to sign Exhibit D4. It was during cross-examination that for the first time he denied authoring and signing Exhibit D4. That the position of the law remains that evidence led on facts not pleaded goes to no issue and the Court is not expected to act on it, citing Geneva v. Afribank Nigeria Plc [2013] LPELR-20662(SC). The defendant then urged the Court to discountenance this bare faced denial by the claimant on the additional round that he admitted that the signature on Exhibit D5 is his and in the same breathe denied the signature on Exhibit D4. That a close look at the signature on Exhibit D5 which the claimant admits to be his will reveal that the said signature is similar in every material respect to the signature on Exhibit D4. That the signature is also a replica of the signature of the claimant on Exhibit C12, the claimant’s letter of complaint to the defendant. The defendant then called on the Court to compare the signatures of the claimant in the various exhibits before the Court with that on Exhibit D4 and arrive at the conclusion that the signatures are similar in every material respect, citing section 101(1) of the Evidence Act 2011, Ishaq & anor v. INEC & ors [2008] LPELR-4336(CA), Magbogunje v. Adewunmi [2006] 11 NWLR (Pt. 991) 224 at 250 – 251 and Ezechukwu v. Onwuka [2006] 2 NWLR (Pt. 963) 151 at 207. The defendant urged the Court to discountenance in its entirety the claimant’s claim as it relates to gratuity.
20. The claimant’s claims for leave allowance and N50,000 ticket at N61,515.78, transport as recommended on the termination letter at N100,000.00 and payment in lieu of notice at N84,547.25 were taken together by the defendant. Here, the defendant submitted that the claimant’s pleadings in this respect are quite vague and very unclear. That the claimant claimed he is entitled to “leave allowance 121/2 and N50,000 ticket” both summed up to N61,515.78. That it is not clear at all the leave allowance being referred to here or how the claimant arrived at the sum claimed under that head. It is not also clear the functionality of the figure 121/2 in that head of claim neither is it clear the basis for the sum of N50,000.00 claimed as “ticket”. That the claimant also did not make any attempt to provide particulars as to his entitlement to the sum claimed as transport and payment in lieu of notice. He simply stated the figures he expects the Court to award to him without more; as such, the claimant leaves this Court with the herculean task of fishing for particulars to aid this Court in determining exactly what the claimant’s leave allowance entitlement really is. That a party swims or sinks with his pleadings; and pleadings must be detailed on material facts and not evasive or vague, citing Alhaji Adebayo Akande v. Jimoh Adisa & anor [2012] LPELR-7807(SC).
21. Furthermore, that the specific sums of money claimed by the claimant as leave allowance, ticket, transport and payment in lieu of notice go to show that these claims are in the nature of special damages which are not granted as a matter of course as the facts and particulars thereof must be specifically pleaded and strictly proved to entitle a claimant to them. That the claimant failed to plead or prove how he is entitled to the specific amounts claimed under these heads of claim. That the claimant did not plead or prove the mathematical formula used to arrive at the said sums claimed; therefore, that the failure is fatal to his claim and same should be refused, citing ATE Co. Ltd v. Mil. Gov. of Ogun State [2009] 15 NWLR (Pt.1163) 26 SC at 51 – 52 and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). That no reference to any document or policy where the sums claimed and the explanations for them are provided for. In the circumstance, that these heads of claim being under the species of special damages must fail.
22. Without prejudice to the foregoing, the defendant submitted that it furnished sufficient evidence to the effect that the claimant’s entitlement was properly calculated to include among other benefits, (a) three months’ salary in lieu of notice (b) leave allowance (c) transport allowance, referring to paragraph 18 of DW’s witness statement on oath. That this piece of evidence and the documents tendered in support thereof were uncontroverted. That it is also in evidence as per paragraph 13(i) of DW’s witness statement on oath that the reason why the claimant’s account has not been credited with the amount the defendant offered to magnanimously pay him after it was discovered that his total indebtedness far outweighs his entitlement and leaves him with nothing to go home with is because the claimant failed to provide the guarantors as requested by the defendant. That uncontroverted evidence is deemed to be an admission of the facts which the evidence seeks to prove, citing Muomah v. Enterprise Bank Ltd [2015] LPELR-24832(CA), Ogunyade v. Oshunkeye [2007] 15 NWLR (Pt. 1057) 218, Nzeribe v. Dane Eng. Co. Ltd [1994] 8 NWLR 124, Ebeinwe v. The State [2011] 7 NWLR 402 and Okike v. LPDC [2005] 15 NWLR (Pt. 949) 471.
23. On reimbursement of 2006 share deductions in the sum of N233,486.68, the defendant submitted that the claimant’s averments in respect of this head of claim are laced with inconsistencies, referring to the earlier arguments as to preliminary issues and Bassil v. Fajebe [2001] 11 NWLR (Pt. 725) 592 at 610. The defendant then urged the Court to discountenance the claimant’s pleadings as to share deductions particularly paragraphs 18, 26(f) and 31(1)(f) of his statement of facts, paragraphs 14, 17, 18, 19 and 20 of his amended reply, together with all the arguments made thereto.
24. In the event that the Court is not minded to discountenance these paragraphs of the pleadings, the defendant submitted that the claimant cannot argue in all honesty that the share loan in issue was forced on him. In line with the pleadings and the evidence led by the defendant, that the claimant, just like every other staff who indicated interest in the thriving Intercontinental Bank Plc shares in 2006, was allotted 28,696 units of shares at N12.50 each, referring to paragraph 3 of Exhibit C15, Intercontinental Bank Plc Staff Handbook, which provides thus:
Loans for the purchase of quoted shares or to purchase shares under the government privatization programme are available to members of staff. The guidelines are as follows:
i. All confirmed staff are qualified to apply for share loans equivalent to two times their annual basic salary.
ii. The loan is repayable over three years at an interest rate of 3%. Repayment starts after allotment.
To the defendant, the Staff Handbook is explicit on the point that repayment starts immediately after allotment and it was on this basis that the Bank made monthly deductions from the claimant’s salary as repayment for the share loan as shown in the claimant’s monthly pay slips. That while the deductions were being made since 2006 to repay the share loan, the claimant who now claims the shares were forced on him (without any evidence of force or coercion) never for one day complained, either orally or in writing to any of the officials of the defendant that such “unauthorized” deductions were being made. That in the course of cross-examination, the claimant was asked categorically, when he became aware of the deductions to which he responded “since 2008″. He was further asked if he ever complained to the defendant regarding the share loan deductions since he became aware in 2008 and he stated clearly that he did not complain to the defendant in respect of share loan deductions. More so, that the claimant by Exhibit C12 admitted that as at August 2012 when his employment was terminated, the balance of the 2006 public offer share loan remained N161,397.00.
25. The defendant proceeded that it is worthy of note that the claimant in Exhibit D4 also admitted his indebtedness to the defendant in respect of the 2006 public offer share loan without again raising any form of complaint as per his bogus claim that the shares were forced on him and unlawful deductions made from his salary in respect thereof. The defendant then referred to section 169 of the Evidence Act 2011 submitting that a party, who by his actions or conduct willfully made a representation of a state of facts to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation, is estopped from asserting the contrary, citing Okonkwo & ors v. Kpajie & ors [1992] LPELR-2483(SC) and Joe Iga & ors v. Ezekiel Amakiri & ors [1976] 11 SC 1 at 12 – 13. Accordingly, the defendant submitted that the claimant is not allowed under any circumstances whatsoever to approbate and reprobate. He is estopped from denying the contents of his letters and cannot resile therefrom. The defendant urged the Court to find that based on the claimant’s letters (Exhibits C12 and D4), he cannot boldly say the shares were forced on him and deductions made without his authorisation as by his conduct he did not raise any form of objection or complaint to the deductions being made from his salary in repayment of the loan sum but admitted the indebtedness in a couple of his correspondences tendered in evidence.
26. The claimant had claimed that the share certificates were not released/transferred to him despite the deductions being made from his salary. Here, the defendant drew attention to paragraph 3.3 of Exhibit C15 particularly subparagraph (b) thereof which reads thus:
a. Where the staff leaves the bank’s employment within 12 months of purchase of shares, the bank will sell the shares, return payment made plus interest to staff whilst the profit is retained by the bank.
b. Where a staff leaves after 36 months, the bank will demand repayment within 30 days after which the staff can collect his shares certificates. On default to pay, the bank will apply condition (a) above.
That from the foregoing, it is abundantly clear that the defendant by virtue of the provisions of the Staff Handbook has the power to hold on to the share certificates as lien until the loan sum is fully paid up and where the loan is not paid up, the defendant reserves the right to sell the said shares in the terms of the conditions stated above. Accordingly, the claimant who appears to know so much about the provisions of the Staff Handbook should have known or ought to have known the provisions of paragraph 3.3 of the Staff Handbook and that same was strictly applied by the defendant in dealing with his shares/share certificates. The defendant then urged the Court to discountenance this claim as same is merely an attempt to frustrate the defendant who has displayed beyond doubt that it had the best interest of the claimant at heart at all times material to this suit.
27. On the claim for general damages in the sum of N20 Million, the defendant submitted that general damages is a consequential relief awarded as a consequence of the success of the claimant’s claim. That where the principal relief fails as in this instance, the consequential relief being sought also fails with it, citing Awoniyi v. Reg. Trustees of Amore [2000] 10 NWLR (Pt. 676) 522 at 539 and Hemason (Nigeria) Ltd v. Pedrotech (Nigeria) Ltd [1993] 3 NWLR (Pt. 283) 548. The defendant went on that since it showed the failings of the claimant in this suit, the claim for general damages cannot accordingly succeed as the claimant’s case even with is sentiments lacks merit and is not deserving of the Court’s discretion, citing Adigun v. Ayinde [1993] 8 NWLR (Pt. 313) 516 at 528, IBWA Ltd v. Unakalamba [1998] 9 NWLR (Pt. 565) 245 at 278 and Orakwute v. Agagwu [1996] 8 NWLR (Pt. 466) 358 at 374. In conclusion, the defendant urged the Court to hold that the defendant is not liable to the claimant in respect of the claims in this suit and thus dismiss it with substantial costs for being baseless, vexatious and an attempt by the claimant to spite his former employer for no justifiable reason.
THE SUBMISSIONS OF THE CLAIMANT
28. In his submissions, the claimant first addressed the preliminary issues raised by the defendant. To the claimant, the documents speaks for itself as he had not in anyway offended any cardinal principle of pleadings neither had he raised any fresh issues in the amended reply filed on 9th May 2017. That the claimant’s last paragraph of the said amended reply, which is paragraph 25, reads thus: “WHEROF the claimant claim against the Defendant as per the reliefs contained in its Statement of facts”. That the claimant’s paragraphs 14, 17, 18, 19, 20 and 21 of his amended reply was in clear response to subparagraph 6(f), (g) and (h) of the defendant’s amended statement of defence dated 8th November 2016; and subparagraph (g) reads thus:
In further response to paragraphs 17, 18, 19 and 20 of the Statement of facts, the Defendant states that the Claimant willingly applied for the said shares having opted for the Share Loan option offered by IBPLC. The Defendant categorically denies deducting any excessive interest, however on the Claimant’s account and shall at the trial put the claimant to the strictest proof at the trial of this suit.
29. The claimant then submitted a sole issue for the Court’s determination in this suit thus: “Whether on the strength of the pleadings and materials placed before this Honorable Court and all the surrounding facts and circumstances, the Claimant has proven on the preponderance of evidence, that he is entitled to all the reliefs claimed in this suit”. To the claimant, he is entitled to all his reliefs claimed against the defendant as he placed relevant and material evidence before this Court to justify the grant of all his reliefs on the preponderance of evidence or balance of probability, citing section 133(1) of the Evidence Act 2011 and Alao v.. Kure [2000] FWLR (Pt. 6) 889.
30. On this issue of claimant’s employment period, the claimant submitted that he indeed served the defendant for a period of seventeen (17) unbroken years, that is, 1995 to 2012 when his appointment was terminated by the defendant. Consequently, he is entitled to the sum of N5,749,213.68, which he clearly claimed in paragraphs 26 and 31(b) of the statement of facts. That in arriving at this sum, the claimant had applied 100% of his annual basic salary as at 2012 and multiplied same by 17 years, being the number of years he served the defendant. That this mode of calculation though not derived from the defendant’s Handbook but has been the age-long practice of the defendant in calculation of its employee’s gratuity entitlements. That the defendant fraudulently and mischievously omitted to state the mode of calculation of gratuities for its employees in the Handbook thereby leaving them at its own mercy. That under cross-examination, the defendant’s sole witness clearly and unequivocally admitted that it is only the defendant’s Handbook that regulates the defendant’s employees’ relationship with the defendant. Therefore, that Exhibit D2, which is the alleged internal memo purportedly written by the defendant is not applicable in calculating the claimant’s gratuity.
31. The claimants went on that Exhibits C1, C2, C2A and C5 are all in agreement that the claimant’s various transfers from one subsidiary of the defendant to another did not in any way affect his conditions of service. The defendant’s sole witness even read out the above exhibits during cross-examination to the effect that the claimant’s employment was never terminated or affected by the various transfers on 18th November 2005, neither was any fresh employment given to the claimant. That the claimant having shown via Exhibit C9 that the claimant’s employment was never terminated or affected by the various transfers on 18th November 2005, this has shifted the burden of proving this particular fact to the defendant, citing Oyovbiare v. Omamurhonu [2001] FWLR (Pt. 68) 1129. That the opening paragraph of Exhibit C5 reads as follows:
Following the merger of Intercontinental Bank, Equity bank, Gateway Bank and Global Bank which resulted into the formation of the new Intercontinental Bank Plc. And the TRANSFER OF all support staff under the management of Intercontinental Properties Ltd. we are pleased to confirm your appointment as a CHAUFFEUR GRADE 4 with effect from 1st November, 2005 on the following terms and condition.
32. It is the claimant’s further submission that he went through the whole gamut of the said Exhibit C5 and could not find where the defendant allegedly advised the claimant of his gratuity to be in the purported sum of Naira N1,409,232.20 as alleged by the defendant. That the purported N2,603,397.22 alleged total gratuity entitlement was allegedly communicated to the claimant via Exhibit C14 only after the claimant’s employment had been terminated.
33. On the issue of the calculation of the claimant’s gratuity, the defendant had submitted that paragraph 5C of their amended statement of defence was uncontroverted and that the uncontroverted evidence thereto was given in paragraph 9b of the defendant’s witness statement on oath. To this, the claimant referred to paragraphs 6 and 7 of the claimant’s amended reply filed on 9th May 2017; and paragraphs 8 and 9 of the claimant’s further witness statement on oath dated 9th May 2017, which provide thus:
8. That in response to paragraph 5 of the Amended Statement of Defence that the alleged Internal Memo purportedly dated 6th October, 2011 which purportedly reviewed the Defendant’s gratuity policy downwardly to 50% of the gross annual salary with a qualifying period of five (5) years of completed service, I contend that the alleged Internal Memo cannot take the place of Employee’s Handbook which regulates conditions of service and which is where such memo ought to be contained.
9. That they contend further to the above paragraph that the alleged Internal memo ought to have been written on the letter-headed paper of the Defendant Board of Directors at the foot of the letter-headed paper, but that the purported Internal Memo is clearly an afterthought to deprive me of my full gratuity.
34. It is the claimant’s submission that he was indeed employed in 1995 and was at various times transferred to the defendant’s subsidiary companies (which transfers did not affect his conditions of service) until his employment was eventually terminated in the year 2012, referring to Exhibits C1, C2, C2A, C5, C7, and C9, which were all tendered and admitted in evidence without any objection from the defendant. But that his employment was never terminated in 2005 as his employment continued from 1995 to the year 2012 for the following points:
(a) The defendant’s Handbook in section 3.5 paragraph (2) provides that: “There is also the junior mortgage loans are extended to other no-banking categories of staff who have completed at least 10 years meritorious service in the bank”.
(b) Exhibit C9 dated 28th September 2007 is the defendant’s letter disbursing the Mortgage Loan of the sum of N4,000,000.00 (Four Million Naira) to the claimant, less than two (2) years after the defendant purportedly claimed that the claimant’s employment was terminated in 2005.
(c) If the claimant’s employment which started in 1995 came to an end in 2005 as the defendant tries to mislead this Honorable Court, the claimant would not have been entitled to the Mortgage loan of N4,000,000.00 (Four Million Naira) which the Handbook clearly stated that the non-banking staff can only be entitled to same only after ten (10) years of meritorious service to the defendant, since the claimant as at 2007 would have spent less than two (2) years in the employ of the defendant as alleged by the defendant herein.
(d) The defendant prior to the merger of the banks and in calculating the claimant’s gratuity for the purported 10 years period multiplied 100% of the claimant’s gross annual basic salary with the purported number of years of service (10 years) to arrive at the approximate sum of N1,194,165.02 (One Million, One Hundred Ninety-Four Thousand, One Hundred and Sixty-Five Naira and Two Kobo), referring to paragraphs 3.3.2 and 3.3.7 of the defendant’s final written address.
35. The claimant then submitted that there was never a time when he was offered a fresh employment in 2005 as his appointment/employment from the year 1995 was never broken till the year 2012, referring to Exhibit C9, which is the defendant’s letter disbursing the sum of N4 Million Naira to the claimant on 28th September 2007, less than two (2) years after he was purportedly offered and/or given a fresh employment by the defendant when paragraph 2 of section 3.5 of the defendant’s Handbook clearly stated that the non-banking categories of staff (where the claimant falls into) were only entitled to the said mortgage loan after ten (10) years of meritorious service to the defendant. That DW also admitted that the said mortgage loan was for staff only. Furthermore, that Exhibit C9 was a clear and unequivocal admission by the defendant herein to the effect that the claimant’s appointment/employment from the year 1995 was never broken till the year 2012, when his employment was terminated. That it is well settled in law that facts admitted need no further proof, citing Agbahamovo v. Eduyegbe [1999] 3 NWLR (Pt. 594) 170 at 183. That DW under cross examination admitted that it is the defendant’s Handbook that regulates the defendant’s employment relationship with is employees and not the internal memo, which admission knocks the bottom off the defendant’s argument that Exhibit D2, being the defendant’s Memo dated 6th October 2011, purportedly reviewed the defendant’s gratuity policy downwardly to 50% of the gross annual salary.
36. To the claimant, while he agrees with the defendant that he admitted being indebted to it with respect to the mortgage loan in the sum of N3,183,555.58, he never admitted owing the defendant with respect to public offer share loan as he variously denied applying for the said share loan but that the said loan was imposed on him by the defendant, referring to paragraphs 16, 17, 18, 19, 20 and 21 of the claimant’s statement of facts. That paragraph 18 of the claimant’s statement of oath thus: “That I never signed any contract nor filled any transfer form as is obtainable in the money market (Central Security Clearing System (CSCS) due process invariably meaning that the ownership of the shares still rests in Intercontinental Bank Plc. (now Access bank Plc)”. The claimant then submitted that under cross-examination DW admitted again that the ownership of the said shares still rest with the defendant as the claimant has no control of the said shares which fact is in line with the above uncontroverted evidence of the claimant that he never applied for the said share loan or filled any form for the purchase of the said loan, citing section 167 (d) of the Evidence Act 2011. That what is admitted need no further proof, citing Cappa & D’Aberto Ltd v. Akintilo [2003] 9 NWLR (Pt. 824) 49 at 69 and Agbahamovo v. Eduyegbe [1999] 3 NWLR (Pt. 594) 170 at 183. That once again under cross-examination, DW admitted again that the defendant neither placed any document before the Court nor has he anything to show to the Court to prove that the claimant applied for or intended to purchase the said public offer share loan from the defendant. That it is settled law that only parties to a contract can take benefit and liabilities therefore, citing Makwe v. Nwakor [2001] 14 NWLR (Pt. 733) 356 at 372 and Kano State Oil & Allied Priducts Ltd v. Kofa Trading Co. Ltd [1996] 3 NWLR (Pt. 436) 244 at 522.
37. Accordingly, the claimant submitted that he is entitled to his 2006 share loan deductions from his account (which shares were imposed on him by the defendant) with respect to the share loan as the defendant failed to produce any evidence showing that there was indeed a contract signed by the claimant and the defendant with respect to the said share loan. Also, that the claimant’s claim of N5,749,213.00 is well taken and it is not baseless but legal based on the claimant’s salary to the date of the termination of his appointment in 2012 as stated in section 1.7 of the defendant’s Handbook that: “Employees terminated will be entitled to salary earned to date of termination”. The claimant continued that his appointment was terminated in August 2012 and Exhibit C23, which contains his pay-slips for the months of June, July and August 2012 and a monthly basic salary of N28,182.42, which if multiplied by 12 months will be equal to N338,189.04. And if this is further multiplied by seventeen (17) unbroken years (1995 – 2012) that the claimant served the defendant it will be equal to the sum of N5,749,213.68. That this calculation is based on the application of 100% of the claimant’s annual basic salary, which is the usage and practice of the defendant in calculating gratuities of its employees and because the claimant was never offered any fresh employment in 2005 as Exhibit C9 clearly showed that the claimant was given Mortgage Loan of N4,000,000.00 by the defendant in 2007, when going by the defendant’s argument of alleged fresh employment, the claimant would have been less than two (2) years with the defendant under the purported fresh appointment of 2005, when by the defendant’s policy he will only be entitled to the said loan after ten (10) years.
38. On the issue of leave allowance, transport and payment of salary in lieu of notice, the claimant submitted that he is entitled to the sum of N100.000.00 transport allowance and N84,547.25 as payment of salary in lieu of notice. That he led uncontroverted evidence of same in paragraph 27 of his witness deposition of oath attached to the statement of facts as well as Exhibit C11, the defendant’s letter of termination dated 29th August 2012 in which the defendant admitted that the claimant is entitled to transport in the sum of N100,000.00 and N84,547.25 being salary in lieu of notice and it is a settled principle of law that facts that are admitted need no further proof, citing Kubor v. Dickson [2013] NWLR (Pt. 1345) 534 at 586 and Reptico SA Geneva v. Afribank (Nig.) Plc [2013] NWLR, (Pt. 1373) 172 at 208. That the defendant having admitted the above heads of claim in Exhibit C11, their letter of 29th August 2012, the burden of proving same by the claimant has been discharged, urging the Court to so hold.
39. On the issue of reimbursement of 2006 share deductions, the claimant submitted that he claimed in paragraph 27 of his witness deposition on oath that he is entitled to the sum of N233,486.68 as his share loan deduction which the defendant ought to reimburse him as DW admitted in the avalanche of his denials that the ownership of the said shares rest with the defendant, and that the claimant has no control over the said shares and he further admitted that between 2008 to 2012 the defendant did not pay dividends to the claimant. The claimant referred to Exhibit D6, which shows that the defendant did not pay dividend to the claimant until he exited the defendant Bank in 2012. That Exhibit D6 amounts to dumping of evidence before the Court as DW failed to explain to the Court how they arrived at the various deductions that they made from the claimant’s account, citing Akintokun v. LPDC [2014] 75619-(SC), Dickson v. Silva & ors [2016] 92688-(SC) and Olufeagba & ors v. Abdur-Raheem & ors [2009] 18 NWLR (Pt. 1173) 384. That it is in evidence that the claimant never signed any document by way of contract or agreement in respect of the said share loan. That the claimant did not also fill any transfer form as is obtainable in the security market, that is, the Central Security Clearing System (CSCS due process) which invariably means that the ownership of the shares rests in the defendant Bank, and the claimant from the onset never accepted any obligation on the said shares as shown in paragraph 22 of his witness deposition attached to the statement of facts. On this sole issue, the claimant urged the Court to hold that the claimant is entitled to all the reliefs he had claimed as per his statement of facts before this Court.
THE DEFENDANT’S REPLY ON POINTS OF LAW
40. In the main, the defendant’s reply on points of law was merely a rehash of its arguments in the final written address. I shall accordingly highlight only of its arguments that are appropriately replies on points of law. On the preliminary points raised by the defendant, the defendant submitted that the claimant’s response is not only devoid of substance but is also unsustainable and an attempt to put on record that some form of opposition was made. The defendant went on that the claimant made no arguments whatsoever in response to the defendant’s submissions regarding the inadmissibility of Exhibit C16, which is a computer generated evidence. That in the absence of a counter-argument in this regard, the claimant is deemed to have conceded to the defendant’s submission in that regard, citing Borno State INEC & ors v. Kachala [2005] LPELR-7464(CA).
41. Turning to the substantive arguments of the claimant, the claimant had argued that his employment lasted for an unbroken period of 17 years from 1995 to 2012 and as such he is entitled to the sum of N5,749,213.68. He also explain how he arrived at the figure and stated that same was arrived at by applying 100% of his annual basic salary as at 2012 and multiplying same by 17 years. To the defendant, these facts are not pleaded in the claimant’s pleadings. That the closest the claimant came to pleading facts in respect of the figures applied in calculating his entitlement was in paragraph 25 of his statement of claim where he stated thus: “The Claimant avers that his basic salary was N338,189.04…per annum”. That the claimant did not in any way attempt to provide any details whatsoever as to what the basic salary being referred to here is; nowhere is any monthly basic salary pleaded. That what we are confronted with now is counsel attempting to explain away this fact in the claimant’s final written address. To the defendant, this is an aberration in law as the law still remains that argument of counsel no matter how ingenious cannot take the place of evidence, citing Aro v. Aro & anor [2000] LPELR-6782(CA). The defendant then urged the Court to disregard the said submissions of the claimant.
42. On the claimant’s argument that he could not have been offered a mortgage loan of N4 Million only 2 years of a fresh employment, the defendant referred to paragraph 7.7 of the IBPLC Staff Handbook which provides thus: “The bank reserves the right to change, add, waive or conceal any part of the foregoing terms and conditions from time to time as situation demands”. That as long as the defendant reserved the right to waive any of the terms and condition in its handbook and since the defendant was never given any opportunity to factually respond to the issue, it is not open to parties, counsel or the Court to speculate. The defendant also drew attention to the fact that other than the Staff Handbook can govern an employment relationship; as such Exhibit D2 can equally govern the employment relationship of the claimant. The defendant then urged that this suit be dismissed.
COURT’S DECISION
43. In considering the merit of this case, I start off with the framing by the defendant of its sole issue for determination, which is: whether on the strength of pleadings and materials placed before this Honourable Court and in consideration of all the surrounding facts and circumstances, the claimant has proven on the preponderance of evidence, that he is entitled to all or any of the reliefs claimed in the instant suit and the sister suits. In this sole issue, the defendant talked of “the sister suits”. I am not aware of any sister suit before this Court handled by the defence counsel to warrant the reference to “the sister suits”.
44. I turn to the defendant’s reply on points of law, which I indicated earlier was merely a rehash of the defendant’s argument in the final written address. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). I had accordingly only highlighted the issues that I think appropriately rank as replies on points of law.
45. The defendant first raised two preliminary points: that the claimant raised fresh points in the amended reply; and that Exhibit C16 is not admissible. Exhibit C16 is a CSCS online printout of investor account details of the claimant. In its state, it ranks as an electronically generated document. The argument of the defendant is that the claimant did not provide any certification as enjoined by section 84 of the Evidence Act 2011. The claimant was silent on the issue. As a policy, minded by section 12 of the National Industrial Court Act 2006, this Court relaxes the evidential requirement of section 84 of the Evidence Act 2011 when computer generated documents are in issue; admitting such a document but reserving the probative value for consideration in terms of the merit of the case. See Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018. As it is, therefore, Exhibit C16 remains admitted; its evidential or probative value will be determined in terms of the merit of the case.
46. The defendant had argued that the claimant raised fresh points in the amended reply to the defendant’s amended statement of defence, referring in particular to paragraphs 14, 17, 18, 19, 20 and 21 of the amended reply. The claimant’s response is that his paragraphs 14, 17, 18, 19, 20 and 21 of the amended reply were in clear response to subparagraph 6(f), (g) and (h) of the defendant’s amended statement of defence dated 8th November 2016. The law by Ughutevbe v. Shonowo & anor [2004] LPELR-3317(SC); [2004] 16 NWLR (Pt. 899) 300; [2004] 18 NSCQR 741 is that “…a plaintiff may file a reply to the statement of defence but such a pleading, not being a petition or summons, shall except by way of amendment, raise no new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same”. I read through the pleadings of both parties and I am satisfied that the claimant did not go beyond his brief. Paragraphs 14, and 17 to 21 of the claimant’s further amended reply to the defendant’s amended statement of defence of 8th November 2016 (this is the document that actually has paragraphs 14 and 17 to 21 that the defendant complains of) are in response to especially the defendant’s paragraph 6(g). I so find and hold. This being so, the argument of the defendant in that regard has no merit and so is dismissed.
47. The claimant’s case is a claim for special damages, which must be claimed specially and proved strictly. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). In Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, this Court held that the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if an entitlement is shown. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer. Secondly, the employee who claims must show how he came by the quantum of the sums claimed. This Court also cautioned that it may be fatal if, in proving an entitlement, and even if the instrument is referred to, the employee does not indicate the clause, section, article or paragraph that grants the entitlement claimed given that the employee should not expect that it is the Court that will shop for the relevant article that substantiates the claim prayed for. This is the context within which the claimant can succeed in the present case.
48. The claimant’s first claim is for N418,505.42 being 15 years anniversary outstanding award. Here, I agree with the defendant that the claimant did not refer to any law, document, contract, provision of the handbook that entitles him to this amount as of right. This claim remains unproved by the claimant and so is missed.
49. The second sum claimed by the claimant is N5,749,213.68 being gratuity calculated on the formula of basic salary of N28,182.42 multiplied by the 12 months of the year, which gives a yearly sum of N338,189.04, which if multiplied by the 17 years that the claimant worked for the defendant yields to the total sum of N5,749,213.68 claimed. Funny enough, the claimant asserted in both paragraphs 4.3 and 4.16 of his written address that this mode of calculation though not derived from the defendant’s Handbook has been the age-long practice or usage and practice of the defendant in calculation of its employee’s gratuity entitlements; and that the defendant fraudulently and mischievously omitted to state the mode of calculation of gratuities for its employees in the Handbook thereby leaving them at its own mercy. Did the claimant show to this Court any evidence as to age-long practice of the defendant? The answer is NO. The rule is that evidence of customary practice (or usage and practice) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in Queen v. Chief Ozogula [1962] WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors [1968] 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt.388) 142 at 165 and Orlu v. Gogo-Abite [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify. See also James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on12th July 2016. What all this means is that there is no evidence of any age-long practice of the defendant in calculating its employee’s gratuity entitlements as the claimant makes it out here. This being so, the basis of calculating his claims in this suit is unfounded. I so find and hold. The charge by the claimant that the defendant fraudulently and mischievously omitted to state the mode of calculation of gratuities for its employees in the Handbook thereby leaving them at its own mercy is equally unfounded as nothing was placed before the Court to show this; and I so find and hold.
50. In paragraph 4.15, however, the claimant submitted that his claim of N5,749,213.00 (sic) is well taken and it is not baseless but legal based on the claimant’s salary to the date of the termination of his appointment in 2012 as stated in section 1.7 of the defendant’s Handbook that: “Employees terminated will be entitled to salary earned to date of termination”. The use of clause 1.7 of the defendant’s Handbook as the basis of his calculation only reveals the misunderstanding of the claimant as to what that provision means. When clause 1.7 stated that “Employees terminated will be entitled to salary earned to date of termination”, what it means is the salary the employee worked for that remains unpaid, if any; not that salary of the employee will be multiplied by 12 months and then multiplied by the number of years the employee worked for as the claimant seems to think. To be entitled to N5,749,213.68 as calculated and claimed by the claimant, the claimant must show to this Court the instrument that specified that gratuity is to be calculated by multiplying the basic salary of the employee by the 12 months of the year, which will then be multiplied by the number of years the employee worked with the defendant. As it is, clause 1.7 is not such an instrument. All of this means that the claim for N5,749,213.68 a gratuity remains unproved. It fails and so is dismissed.
51. On the claim for leave allowance, transport and payment of salary in lieu of notice, the claimant submitted that he is entitled to the sum of N100.000.00 transport allowance and N84,547.25 as payment of salary in lieu of notice, relying on paragraph 27 of his witness deposition of oath attached to the statement of facts as well as Exhibit C11. The claimant was silent about the claim for leave allowance in his written address. In paragraph 26 of the statement of facts, the claimant pleaded that he is entitled to N100,000 as transport as recommended on the termination letter, payment in lieu of notice in the sum of N84,547.25 and leave allowance 121/2 and N50,000 ticket at N61,515.78. The argument of the defendant that these clams were not pleaded is accordingly wrong; and I so hold. However, I agree with the defendant that the claim for leave allowance is confusing and makes no sense. It is not the duty of the Court to repair defective pleadings. As His Lordship Tur, JCA puts it in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA), a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings. The claim for leave allowance fails and so is dismissed.
52. This leaves out the clams for transport and payment in lieu of notice. The claimant relied on his termination letter (Exhibit C11) for these claims. In Exhibit C11, the defendant terminated the employment of the claimant but went on to state that all the claimant’s entitlements due to him will be paid into his account, which entitlements include N100,000.00 for transport and N84,547.25 for payment in lieu of notice. Given Exhibit C11, the defendant admitted in it the claims of the claimant for transport and payment in lieu of notice. This means that these claims (N100,000.00 for transport and N84,547.25 for payment in lieu of notice) succeed and are due and payable by the defendant to the claimant; and I so find and hold.
53. The last but one claim of the claimant is the claim of N233,486.68 as reimbursement of 2006 shares deductions from the claimant’s account by the defendant. On this claim, the claimant submitted that DW admitted that the ownership of the said shares rest with the defendant, and that the claimant has no control over the said shares; and that DW further admitted that between 2008 to 2012 the defendant did not pay dividends to the claimant. The claimant referred to Exhibit D6, which to him shows that the defendant did not pay dividend to the claimant until he exited the defendant Bank in 2012.
54. By paragraphs 16 to 21 of the statement of facts, the claimant pleaded that 28,696 units of shares at N12,50K per unit were allocated to him by the defendant without his consent or the execution of any contract. In particular, paragraph 18 of the statement of facts, stated that the deduction of N646.25 interest every month on the shares started since January 2008. The case of the claimant is that though he is not accepting any obligation under the shares, even if they were duly allocated, their repayment was tied to his employment with the defendant. I must state that the allocation of shares by an employer to an employee without the consent of the employee is as despicable as it can be and must be strongly denounced. In Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, a case incidentally involving the defendant of the present suit, this Court had cause to denounce a similar act of the defendant. Aghata bears a close affinity with the present case. In Agatha, after the merger of banks the claimant’s appointment was terminated and a fresh one was made to her. Her terminal benefits from the said termination were calculated but not paid to her. Instead, the defendant bank chose to invest for her the said terminal benefits. This Court frowned on this paternalistic attitude of the defendant bank, brandishing it as an unfair labour practice. While a similar scenario played out in the instant case, the problem is that the claimant did not complain until now. Deductions from the claimant’s account of sums of money as interest in respect of share allocations made without his consent were made since 2008 and the claimant did not complain until he filed this suit on 30th July 2013. Under cross-examination, the claimant acknowledged being aware since 2008 of the deductions by the defendant from his salary in respect of the share loan. The claimant did not complain about the deductions all the while that he was an employee. Under cross-examination, the claimant acknowledged that he did not write any letter of complaint to the defendant regarding the share loan deductions. He waited until his employment was terminated. All of this points to an acceptance of the fact of the allocation of the shares and the consequential deductions in respect of the shares. Elementary law teaches that a contract can be implied by the conduct of the parties themselves. See Majekodunmi v. National Bank of Nigeria Ltd [1978] 3 SC 119, Compagne Generale de Geophysique Nigeria Ltd v. Okparavero Memorial Hospital Ltd [2011] LPELR-3995(CA), Mudiaga-Odje v. Younes Power System Nigeria Ltd [2013] LPELR-20306(CA) and Adedoyin v. Igbobi Devt Company Ltd [2014] LPELR-22994(CA). The present case is one such contract. Can the claimant turn around now and complain? I do not think so.
55. In the alternative, given the time span (from 2008 to 2013), the claimant can be held to have waived whatever right he had to complain. See NBC Plc v. Ubani [2013] LPELR-21902(SC), which held that “the concept of waiver as articulated in the cases of Ariori v. Elemo [1983] NWLR (Pt. 353) 171 and Kano State Development Board v. Franz Construction Ltd [1994] 4 NWLR (Pt.142) equals to simply failing to take advantage of a right very obvious to a party where it is clear that there is no other reasonable presumption in explanation of the party’s steps so far taken in the proceedings before the court (as in this case) than that the right is let to go – he has acquiesced in his right putting it naively”. This is exactly the case in the instant suit. The claimant failed to rake advantage of his right to complain when the shares were allocated to him against his will and deductions commenced in 2008. It is too late in the day to complain now. I so find and hold.
56. Additionally, the argument of the claimant that the repayment was tied to his employment with the defendant calls in issue the Supreme Court decision in Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329. At pages 346 – 347, the Supreme Court per Peter-Odili, JSC (delivering the Leading judgment) had this to say:
The stance of the appellant that his continued retention in the employment of the respondent is a condition precedent to his repayment of the personal loans and his employment having been terminated by the respondent, the enforcement of the personal loans had been frustrated is not sustainable either in the context of the facts of this case or the prevailing law. This is because the contract of employment and personal loans between the appellant and the respondent are two distinct contracts having distinct subject-matters and their duration not co-existent nor can it be said one is dependent on the other or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment or the personal loan or balance thereof.
A refresher to the situation is that the respondent had fully preferment his obligation under the contract for the personal loan by making available the said sums and the next cease because his employment has ended. This is because mere hardship, inconvenience or other unexpected turn of events which have created difficulties though not contemplated cannot constitute frustration to release appellant from that obligation, a situation which not even the death of the appellant, grave as that might be, would not alter the course of events of the repayment as his estate would bear the liability. I anchor on the case of Davis Contractors Ltd. v. Fareham U.D.C. (1956) AC 696.
57. Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 talked of “the context of the facts of this case or the prevailing law”. This means that the Supreme Court stressed the primacy of the context of the case and the prevailing law in coming to the conclusion it did. And so any application of Lewis v. UBA ought to be based on the context of each case. In Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014, the judgment of which was delivered on 16th February 2018, this Court rejected the arguments of the claimant that he did not resign his appointment, rather it was wrongly terminated; accordingly, the car loan repayments were breached and frustrated by the defendant; and the repayment of the car loan cannot come from other sources save his salary. Also in Mrs Kikelomo Kola-Fasanu v. Prestige Assurance Plc unreported Suit No. NICN/LA/25/2016, the judgment of which was delivered on 25th April 2018, this Court applied Lewis v. UBA and held that the claimant is obliged to pay to the defendant the sum of N16,502,877.00 only being the outstanding sum in terms of the housing loan advanced to her by the defendant. In coming to this conclusion, I rejected the argument of the claimant that the permanent loss of employment has put her in the predicament of having to fulfill a contractual impossibility; considering the fact that the satisfaction of her obligations under the Housing Loan and Deed of Legal Mortgage, which is tied to deductions from her salary with the defendant, was been abruptly severed. The context of the case, the very holding of the Court, was that that the claimant took undue advantage of her position in securing the housing loan from the defendant factoring the fact that the claimant as an interested party side tracked some of the procedures enjoined for an applicant of the said loan in terms of the applicable defendant’s policy. In like manner, the claimant in the instant suit did not object to the share allocation to him and the deductions made in that regard. Th claimant cannot now talk of the repayment being tied to his employment with the defendant. This is coming too late in the day; and I so find and hold.
58. The last claim is the claim for general damages in the sum of N20 Million. I agree with the defendant that this is a consequential relief. It is only after the pleadings (indeed after the last paragraph of the statement of facts, paragraph 31) that the claimant made the claims for his reliefs including the claim for general damages, By Ishola v. UBN [2005] 6 MJSC 34 at 49 – 50, the often last paragraph of pleadings, which itemizes the reliefs prayed for is not facts pleaded but claims which constitute the reliefs the claimant is praying the court for at the end of the trial. It cannot constitute any pleading at all as no valid order can be made under it without any facts contained in the pleadings in support of it and upon which evidence can be led. The claim for general damages cannot, therefore, be granted. It fails and so is dismissed.
59. On the whole, and for the reasons given, the claimant’s case succeeds only in terms of the claim of N100,000.00 for transport and N84,547.25 for payment in lieu of notice. All other claims fail and so are dismissed. Accordingly, I make the following order: the defendant shall within 30 days pay to the claimant the respective sums of N100,000.00 for transport, and N84,547.25 as payment in lieu of notice; failing this, they shall attract interest at 10% per annum.
60. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
