IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 19th day of September, 2019
SUIT NO: NICN/PHC/95/2017
BETWEEN:
Mr. Emmanuel Chukwuemeka Ubochi CLAIMANT
AND
Fidelity Bank Plc DEFENDANT
Representations:
C.B. Onuobia for the Claimant
Prof. A.I. Chukwuemerie SAN with C.E. Igwe for the Defendant.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 29th of September, 2017 along with a verifying affidavit, statement of fact, list of pleaded documents, list of witnesses, witness statement on oath and copies of documents to be relied upon at trial.
The suit was originally before the late Justice A. Ibrahim before same was re-assigned to this court sometime in October, 2018.
Arising from the statement of fact, the Claimant is claiming against the Defendant the following:
- A DECLARATION that the willful refusal by the Defendant to write a Letter of Reference/Confirmation to the University of Kent on behalf of the Claimant, especially after it had written the earlier Letter of Introduction was wrongful, unjustifiable, unwarranted and was done in bad faith.
- AN ORDER commanding the Defendant to write a letter of apology for portraying the Claimant as a fraudulent person and for causing his admission to be cancelled and to write a Letter of Reference/Confirmation to The University of Kent or any other university that may offer the Claimant an admission to pursue his post-graduate studies in future.
- AN ORDER commanding the Defendant to pay the Claimant his minimum annual remuneration which is the sum of N 13,162,842.00 (Thirteen Million, One Hundred and Sixty-Two Thousand, Eight Hundred and Forty-Two Naira) only, which he has lost because of the Defendant’s conduct.
- The sum of N100,000,000.00 (One Hundred Million Naira) only, being special and general damages against the Defendant.
In reaction to the claims, the Defendant on the 16th of November, 2017 filed a memorandum of conditional appearance along with statement of defence, witness statement on oath and copies of documents to be relied upon at trial.
In opening his case, the Claimant was himself called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1 (a) and C1(b). Through the said CW1, 15 documents were tendered in evidence and admitted as exhibits C2 – C16. Exhibits C6, C7, C13 and C16 were however admitted under protest and the objections raised over them to be determined in this judgment.
Arising from the statement of fact and witness statements on oath, the case of the Claimant is that he was employed by the Defendant on 25th of February, 2000 and carried out his responsibilities diligently. Due to his strong passion for lecturing in the University, he retired from the defendant’s employment via a letter dated the 30th of November, 2015 to enable him pursue his PhD degree overseas. He averred further that by a letter dated the 15th day of April, 2016, the Defendant acknowledged the Claimant’s retirement from its employ and also computed his severance entitlements. In the said letter the Defendant stated that the payment of the Claimant’s severance entitlements will be dependent upon the receipt of a duly completed exit clearance. The Defendant being satisfied that he has completed all processes leading up to disengagement from the bank, issued him with an exit clearance and also paid him ALL his severance entitlements. Thereafter, the Claimant was offered admission for PhD by three Universities in UK and sought for the reference of the Defendant as his last employer. In preparation for the admission, he obtained the services of a foreign admission consultant and paid GBP3,000.00. Claimant averred further that while he was preparing to leave Nigeria, The University of Kent, which is his preferred university, wrote back to the Defendant, requesting it to confirm the Letter of Introduction which it had earlier written concerning the Claimant but the Defendant failed to forward the letter of confirmation. He posited that in the 15years he worked for the Defendant he did not receive any query hence the Defendant has no cogent reason to frustrate his pursuit for post graduate degree. He posited that the only reason stated by the Defendant was that he had a past due obligation yet to be regularized with the Bank and the said reason came 18 months after his retirement. He added that the Defendant is estopped from refusing to write the confirmation letter having written an introduction letter.
Claimant averred that the University of Kent eventually cancelled his admission and that would make him waste a whole year doing nothing having retired his employment for the sake of the admission. Claimant averred further that in view of the loss of the admission and the preparation for same, the Claimant through his lawyers wrote to the Defendant to demand for apology and reparation for financial and non-financial injuries.
Upon the cross examination of CW1, he posited that he knows one Mr. Harith Suleiman as customer of the bank who obtained loan of N50million from the bank and one of the condition of the loan was that he will sign a domiciliation letter. He posited that the letter was not signed. He stated that the domiciliation is a condition precedent to the customer but not to the bank. He also stated that he signed the papers for the loan to be released. He posited that he resigned on 31st of December, 2015 and could not restructure loans after resignation. He stated that he had no document to show that he applied for admission and that there was no request for a second referee and since the bank already gave references to 3 different universities, there was no need to meet anybody else.
Upon the discharge of CW1, Claimant closed his case while the Defendant opened theirs by calling one witness in person of Mrs. Justina Onyenemezu as DW1 who adopted her witness statement on oath which was marked as D1. Through the said DW1, 8 documents were tendered which were admitted in evidence as Exhibit D2 to D9 while Exhibit D4a and D9 were admitted under protest.
Arising from the statement of defence and statement on oath, the case for the Defendant is that the Claimant was rightly employed about February, 2000 and averred that the Claimant was very negligent and careless in doing his job and that since the Claimant’s negligence and carelessness were then not very well known to the bank as an institution, the bank granted him promotions and salary increments like any other staff and even paid him a retirement/resignation package in error. The Defendant also posited that whilst the Claimant was the Branch Leader of Port Harcourt Intels Branch, he persuaded the bank to grant a term loan of N50m to one Mr. Harith. While part of the conditions precedent for the drawdown, as was clearly stated in the letter of offer, was the receipt of a letter of domiciliation and non- indebtedness from the said Mr. Harith, the Claimant breached the transaction dynamics in the disbursement process by releasing the said fund to Mr. Harith without exercising due diligence or obtaining the said letter and Mr. Harith ended up defrauding the bank of N23,000,000.00 (twenty three million Naira) paid into his First Bank Nigeria Plc. account meant to refinance the facility and the matter is with the Economic and Financial Crimes Commission (EFCC) till now. The Defendant added that the Claimant pleaded with the Defendant for the restructuring of the loan owed by Mr. Harith and same was granted on compassionate grounds and upon assurance that he would ensure Mr. Harith pays the loan. The Defendant posited that it was on the same ground that the Claimant was paid his severance package. The Defendant posited that as soon as the Claimant was paid the said severance package, he and Mr. Harith made no effort to redeem the assurance and the debt increased up to N7,730,403.83 (seven million seven hundred and thirty thousand four hundred and three Naira, eighty three Kobo) in the red as at 10th November, 2017 and the Claimant is also indebted to the Defendant to the tune of N4,526,655.52 (four million five hundred and twenty six thousand six hundred and fifty five Naira and fifty two Kobo) as at the same date. The Defendant also added that it is not under obligation to write a reference letter for the Claimant and if such obligation exists, the Claimant is undeserving of the reference in view of his indebtedness to the Defendant. The Defendant also posited that its silence was in the interest of the Claimant as a disclosure of the true facts as to the indebtedness would have been destructive of the Claimant’s proposed new career. The Defendant also posits that the use of foreign admission consultant by the Claimant was not only false but also unlawful and that the Claimant did not make any arrangement since he had not been admitted by any university and where he had made such arrangement, the Defendant is not liable for same.
Upon cross examination of DW1, she stated that she did not directly work with the Claimant and does not know whether he was negligent or not. She added that one person cannot facilitate the grant of loan, get approval and disburse all by himself. She stated that the TSD in exhibit C13 means Transaction Service Department and that it is not possible for a person owing first bank to collect letter of non-indebtedness from the bank. She also stated that she cannot remember who restructured the loan but the restructuring was after the bank recovered N22million. She stated that from the mails the Claimant exchanged with the HR, the Claimant acknowledged that he is owing the bank. She stated that the Claimant was owing N2.7 million and his driver too was owing. She also stated that Claimant was issued query for incompetence. She added that when the N22million was recovered, the balance was spread out over a year and the Claimant was paid his full entitlement on the agreement that the debtor pays up.
Upon the discharge of DW1, the case was adjourned for adoption of Final Written Addresses.
The Defendant filed its final address on the 24th of June 2019. Although the said address was filed out of time, Defendant filed a motion on notice praying this court to deem the final address as properly filed and urged the court to vacate the order of foreclosure to file the said final written address in the interest of justice. The Defendant also filed a further written address on the 26th of June, 2019 in support of the said motion.
Upon consideration of the application which was not objected to, the said foreclosure was vacated and time was extended for the Defendant to file its Final Written Address.
Arising from the final address of the Defendant, counsel to the Defendant, Prof. A.I. Chukwuemerie SAN, formulated three issues for determination to wit:
- Whether having regard to the totality of the pleadings and evidence before this Honourable Court, the Claimant has proved his case on the balance of probability and is entitled to his claims in this Suit.
- Whether the Claimant is entitled to a letter of recommendation as of right in line with the terms of his employment and subsequent retirement.
- Whether the Claimant is entitled to any form of damages (general or special) against the Defendant.
In arguing issue one, counsel contended that looking at the strength of the evidence before this Honourable Court, the Claimant is not entitled to the reliefs sought against the Defendant in this Suit as he has failed to prove his claims as required by law. Counsel added that the provisions of s.131, 132 and 133(1) of the Evidence Act 2011 are instructive on this score as to which party bears the burden of proof and same is the Claimant. He also cited the case of C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493, 539 – 540 and Mohamadu Buhari v. Olusegun Obasanjo (2005) 13 NLWR (Pt. 941) 1, 122.
Counsel further posited that it can reasonably be inferred that the Claimant’s case borders on allegation that the refusal of the Defendant to write the requested reference letter cost him the admission from the University of Kent and other related damages and loss. Thus to be entitled to the reliefs sought, the Claimant is required by law to prove the following pre-requisites which are:
- That he really indeed applied for admission to the University of Kent
- That the said University offered him admission, and
- That the refusal of the Defendant to write the reference letter made him lose the said admission.
Counsel contended thereon that the Claimant did not furnish or adduce any shred of evidence in proof of the facts that he applied for admission and was offered admission by the University of Kent. He cited the case of Tsokwa Oil Marketing co. v. Bank of the North Ltd. (2002) 11 NWLR, (Pt. 777) 163, 173,197 — 198H — C.
In view of the declaratory claim made by the Claimant, counsel contended that while it is true that a declaratory relief is a discretionary remedy, it is never granted as a matter of course; on the admission of the adverse party or in default of pleadings by the Defendant as the claimant must lead evidence to establish his entitlement to the declaration he seeks and cannot rely on the weakness or lack defence. He cited the case of Osuade Akinbade v. Ayoade Babatunde (2018) 7 NWLR (Pt. 1618) 366, 394.
Counsel submitted thereon that in the instant case, to succeed in his claim, the Claimant must establish that he applied and was given admission by The University of Kent (or the other Universities he claims); he must show that the failure of the Defendant to write a Recommendation/Confirmation letter scuttled the admission and he must also show that he is entitled to such Recommendation/Confirmation letter from the Defendant upon request, all of which he has failed to do.
With regards to issue two, counsel posited that the Claimant is not entitled as of right to any letter of reference and that whether or not to write a letter of reference is at the sole discretion of the Defendant. He further submitted that writing a letter of introduction or of reference is not part of the obligations owed the Claimant by reason of the employment. Counsel referred to Exhibit D2 (The Personnel Policies and Procedure Guide) (PPPG) which governed the employer-employee relationship of the parties while it lasted and contended that it is not provided anywhere in the employment policy guiding the parties that the Defendant is obligated to write a letter of introduction or reference to an employee or ex-employee whenever demanded.
Counsel cited the case of Pastor I.F. Olaniyan & Ors v. E.O Oyewole & Ors (2011) 14 NWLR (Pt. 1268) 445 to posit that it is the duty of the Claimant to prove that fact that he is entitled to or that the Defendant is obligated to write a reference letter or letter of introduction on his behalf whenever demanded.
He added that the Claimant has not by any evidence provided any law creating legal obligation mandating the Defendant to write a reference letter to the Claimant or to any other employee or ex-employee and that the employment contract having been terminated by the Claimant himself, he could not on the basis of the terminated contract come back to ask the Defendant to write him any letter. Counsel added that a past consideration cannot be the basis of a contract and cited the case of Chief D.S. Yaro v Arewa construction Limited & 2 Ors (2008) All FWLR (Pt 400) 603, 642E – G.
With regards to the issue of estoppel, counsel proffered definitions of the terms ‘introduction’ and ‘recommendation’ and submitted that the purposes of a letter of Introduction and a letter of Recommendation are like two rivers that never meet. He added that a letter of introduction only introduces a party to another without canvassing for or against the beneficiary while a letter of recommendation on the other hand is meant to dignify or in-dignify a person in the eye of the receiving authority, creating an implied obligation on the issuing authority to be as honest as possible. Counsel posited further that the crucial nature of the letter of recommendation is the reason why its issuance is at the discretion of the issuing authority.
With regards to issue three, counsel posited that it is trite law that damages are normal remedy which the law gives where one person has wrongfully caused injury to another and damages are classified as special and general. He cited the case of Eastern Breweries Pie & 2 Ors v. Henry Nwokoro (2012) 14 NWLR (Pt. 1321) 488, 515B.
Counsel also posited that in order to succeed in a claim for specific damage, the Claimant must itemize the loss suffered in the head of claim and each item, must be specifically proved and such proof must be characterized by testimony that ties each item with the proof proffered. He then contended that the Claimant in the head of claims made a lump sum claim of N100,000,000.00 (one hundred million Naira) for general and special damages and submitted that apart from the established fact that the claimant did not itemize the special damages claimed in the head of claim to enable the Court determine it one way or the other, the Claimant has also not led any credible evidence to show how the special damage arose.
Counsel also contended that aside the fact that the Claimant failed to itemize his claims for special damages for loss of income in the head of claims, the Defendant is not liable to pay the Claimant the sum of N13,162,842.00 as money he would have earned if he was still working for the Defendant. He added that the employment contract between the Claimant and the Defendant ended since 31st December, 2015 and the Defendant cannot pay the Claimant for a time he did not work.
Counsel concluded that in the circumstances, this Suit must necessarily fail and urged the court to dismiss it with substantial costs as same is baseless and lacking in merit.
The Claimant filed his final address on the 25th of June, 2019 after the Defendant was initially foreclosed. Arising from the Claimant’s final address, counsel to the Claimant, C.B. Onuobia Esq, formulated two issues for determination to wit:
- Whether the refusal of the Defendant to write a Letter of Reference/Confirmation to The University of Kent on behalf of the Claimant, after it had written an initial Letter of Introduction was not done in bad faith, malicious, unjustified and unwarranted;
Alternatively, Whether the Defendant was justified in refusing to write a Letter of Reference/Confirmation to the University of Kent on behalf of the Claimant because of the buyback loan which the Defendant gave to one Mr. Sulayman Harith
- if this Honourable Court determines that the Defendant was not justified in refusing to write a Letter of Reference/Confirmation to The University of Kent, whether the Claimant is not entitled to damages for the financial losses and other legal injuries which he sustained as a result of the Defendant s malicious conduct.
In arguing issue one and its alternative, counsel submitted that that the refusal of the Defendant to write a Letter of Reference/Confirmation to The University of Kent in the United Kingdom on behalf of the Claimant, after it had written an initial Letter of introduction to the same University was done in bad faith, was very malicious, unjustified and unwarranted. He added that the sole issue that this Honourable Court is called upon to resolve is the issue of why the Defendant refused to write a follow up Letter of Reference on behalf of the Claimant, knowing fully well that he was going to be denied his admission for a PhD program if that Letter of Reference was not written.
Counsel posited further that since the Defendant put up a defence that it refused to write the said Letter of Reference because one Mr. Sulayman Harith who obtained a buyback loan from the bank at the period that the Claimant was the Marketing Manager at its Intels branch, did not repay that loan in full and that it was the Claimant’s responsibility to have recovered the entire sum lent, then this Honourable Court is therefore, called upon to examine the Claimant’s letter of employment, the Defendant’s Personnel Policies and Procedure Guide, the Defendant’s Product Paper for Term/Buy back loans to staff of the Nigeria Liquefied Natural Gas company and other related documents and confirm whether loan recovery was part of the Claimant’s job description.
Counsel argued that by Exhibit C4, the Defendant acknowledged the Claimant’s resignation from its employ and the Claimant was UNCONDITIONALLY cleared and released. Counsel narrated further the facts of the Claimant’s case and submitted that the burden is on the Defendant to prove that the Claimant was indeed indebted to the Defendant in the sum of N4,526.655.52 (Four Million, Five Hundred and Twenty-Six Thousand, Six Hundred and Fifty-Five Naira. Fifty-Two Kobo). He cited section 131(1) & (2) of the Evidence Act, 2011.
With regards to the defence that the Defendant is not obligated to write a letter of reference, counsel to the Claimant contended that from Exhibit C2, which is the Claimant’s Letter of Employment, to Exhibit D2, which is the Defendant’s Personnel Policies and Procedure Guide, there are several provisions on the submission/issuance of Letters of References. He referred the court to Paragraph 3 of Exhibit C2 and clause 3.6, 3.9 and 3.16.7 of Exhibit D2. Counsel also contended that there is no evidence before this Court that the Claimant was owing the Defendant any debt after he was paid his severance benefits. He then provided the definition of ‘reference’ according to The New International Websters Comprehensive Dictionary of the English Language, Encyclopedic Edition and also cited the case of MUSTAPHA MAIHAJA V IBRAHIM GAIDAM (2018) 4 NWLR (PART 1610), 454.
Counsel submitted that if the appointment of an employee will never be confirmed by the Defendant except he provides a Letter of Reference from his former employer, that means that the Defendant is aware of the indispensable nature of a Letter of Reference and therefore obligated to issue one for the Claimant. Counsel cited the case of NURSING AND MIDWIFERY COUNCIL OF NIGERIA V PATRICK OGU & ANOR. LER (2018) SC 818/2016.
Counsel added that assuming the Defendant had no obligation either express or implied, the Defendant had waived the said defence having written exhibits 5a,b,and c. He cited the cases of NIGERIAN PORTS AUTHORITY V AMINU IBRAHIM AND COMPANY (2018) 12 NWLR (PART 1632) 63, 71 Ratio 15, CHIEF TIMIPRE MARLIN SYLVA V INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 2 ORS (2018) 18 NWLR (PART 1651) 311, 319 – 320 Ratios 12 & 13 and section 169 of the Evidence Act 2011.
Counsel also argued that based on the principles of “Ubi jus ibi remedium”, it is immaterial whether or not the Defendant is obligated by statute to issue him a Letter of Reference/Confirmation but what is important is that by the Defendant’s conduct the Claimant has suffered an avoidable injury and should be compensated by the Defendant. He cited the case of MRS. FLORENCE OMOTAYO LABODE V DR. GODFREY OTUBU (2001) 7 NWLR (PART 712) 296, 264-265 Ratios 18 & 19.
With regards to the defence of the Claimant being negligent with respect to the loan offered to Mr. Sulayman Harith, Counsel posited that DW1 under cross-examination told this Court on 17/5/19 that it is impossible for a customer who is owing another bank to provide a Letter of Non-Indebtedness. He added that she also stated that it is not possible for one person to facilitate the approval and disbursement of a loan. He also added that the said DW1 stated on oath under cross-examination that she never worked with the Claimant and therefore, does not know whether he was careless/negligent or not.
Counsel also contended that Exhibit D4a which is a petition written to Economic and Financial Crimes Commission settles this issue of non-submission of a Letter of Non-Indebtedness by Mr. Sulayman Harith and completely destroys the defence. He posited that from Exhibit D4a, it is clear that it was never the intention of the Defendant that Mr. Sulayman Harith was to have submitted a letter of Non-Indebtedness from First bank and a Letter of Domiciliation from NLNG prior to the draw down facility. Rather, what Exhibit D4a shows is that the first tranche of N23,011,265.76 was to be released to Mr. Sulayman Harith to enable him pay-off his indebtedness to First Bank.
Counsel posited that a document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict its content, subject to a few exceptions. He cited the case of IGNATIUS ANYANWU V ALOYSIUS UZOWUAKA (2009) 13 NWLR (PART 1159) 445.
Counsel also contended that all the documents relating to the loan transaction must be read together and cited the case of CENTRAL BANK OF NIGERIA & ORS V MRS. AGNES M. IGWILLO (2007) 14 NW1.R (1054) 393 @405 Ratio 9.
Counsel also referred to the testimony of DW1 during cross examination to the effect that that TSD used in Exhibit C13 means “Transaction Service Department” or Operations Department. She also confirmed that the loan buyback arrangement and in this case, Mr. Sulayman Harith’s loan buyback was to be superintended over by the Operations Department of the Defendant. He posited that this confirms the testimony of the Claimant that he was in the Marketing Department and not Operations. He said that the monitoring of loan facilities and their recovery is the responsibility of the Operations Department and not the Marketing Department. Counsel also cited the case of MR. OLISAH GERALD CHIDI V FIDELITY BANK PLC & ANOR SUIT NO. NICN/EN/41/2017 .
In arguing issue two, counsel posited that the Defendant’s refusal to write the Letter of Reference to The University of Kent on behalf of the Claimant carries with it a sting and odium of being presumed to have done something very grievous and can be likened to an employee who was dismissed from his employment.
Counsel itemized the claims of the Claimant and posited that the law is well settled that a mere general traverse does not amount to an effective denial of an allegation of fact in a Statement of Claim. He added that failure to cross examine on the claims deem it admitted. He cited the cases of CAMEROON AIRLINE V OTUTUIZU (2011) 4 NWLR (PART 1238) 512, 545, paras A-C; A.G. LEVENTIS NIG. PLC V CHEIF CHRISTIAN AKPU (2002) 1 NWLR (PART 747) 282 @ 189 Ratio ii and CALABAR EAST COOPERATIVE THRIFT & CREDIT SOCIETY LIMITD & ORS V ETIM EMMANUEL IKOT (1999) 14 NWLR (PART 638) 225@ 228 Ratio 3.
Counsel also posited that the special damages claimed by the Claimant have been proved and that he is also entitled to general damages besides the Special damages. He cited the case of ACME BUILDERS LIMTIED V KADUNA STATE WATER BOARI) (1999) 2 NWLR (PART 590) 288 @293 Ratio 2.
Counsel concluded by urging the Court to grant all the Reliefs claimed by the Claimant having proved same by credible and uncontroverted evidence.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for the determination of this suit are to wit:
- Whether or not in view of the circumstances of this case, the Claimant as a former employee of the Defendant is entitled to a letter of reference.
- Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.
Before I address the said issues, I find it apposite to address the status of the exhibits admitted under protest in the course of trial. On the part of the Claimant, exhibits C6,C7, C13 and C16 were admitted under protest while on the part of the Defendant, Exhibit D4a and D9 were admitted under protest.
With regards to exhibit C6 and C7, learned SAN contended that Exhibit C6 being a receipt has no connection with an admission process as alleged by the Claimant while he contended that exhibit C7 has no foundation as required by section 84. With regards to exhibit C13, learned SAN contended that the document was not written to the Claimant and it is mutilated with lots of cancellation.
Exhibit C16 was tendered by the learned SAN through CW1 and counsel to the Claimant objected to its admissibility on the grounds that the said exhibit is a photocopy and no foundation was laid.
Reacting to the objections to exhibit C6, C7 and C13, counsel to the Claimant posited that C6 and C13 are relevant to this suit and they were pleaded and frontloaded while in respect to C7, he posited that the provision of section 84 of the Evidence Act was complied with through paragraph 14 of the witness statement on oath and filing of certificate of compliance.
With regards to C16, learned SAN responded that section 232 of the Evidence Act cited by Counsel to the Claimant is inapplicable.
With regards to exhibits D4a and D9, counsel to the Claimant contended that same was not pleaded nor frontloaded.
In addressing the objections, I have taken a careful look at all the foregoing exhibits for the purpose of determining their admissibility.
With regards to Exhibit C6 which the learned SAN objected to on the ground that same has no connection with the admission process. The said exhibit is indeed two leaflets of cash receipt issued by Unlimited Knowledge Admission Service. The first is dated 12/05/2017 in the sum of GBP 2000 while the other is dated 2/06/2017 in the sum of GBP 1000. Both were payments for ‘Admission processing for 3 Universities in the UK for PhD, Non-refundable”. Arising from the facts of the case as found in the statement of facts, Claimant through paragraph 11 averred that he hired the services of a foreign admission consultant in securing admission and he paid the sum of GBP 3000 to the said consultant.
With such facts having been averred, there is no gainsaying that there is a connection between the exhibit and the facts before the court in relation to admission process pursued by the Claimant. It is without doubt that there is an established nexus between the said exhibit C6 and the issue of admission. Consequently the objection of the learned SAN is in this regard discountenanced and the said exhibit is admitted in evidence.
With regards to Exhibit C7, same is an email print out which indeed falls within the realm of computer generated evidence. Without much ado, there is no gainsaying that section 84 of the Evidence Act rightly regulates the requirement for the admissibility of computer generated evidence and in this regard, counsel to the Claimant referred to paragraph 14 of witness statement on oath.
I have taken a careful look at the said paragraph and find that the Claimant detailed how the electronic device was used in communicating with the Defendant and the state of affairs of the said device. Claimant also filed a certificate on the 29th of September, 2017 pursuant to section 84 of the Evidence Act in respect to the said electronic messages.
In view of the foregoing, the objection of the learned SAN in this regard is considered baseless and same is discountenanced as the said exhibit C7 is admitted in evidence.
With regards to exhibit C13, the objection that a document is not admissible simply because it was not written to the person who seeks to tender same or on the basis of cancellation or mutilation without any legal backing lacks merit.
I have taken a careful look at the said document and find that same is an executive summary in relation to a credit facility to staff of NLNG by the Defendant. The content of the document is not a fact in issue but is connected to a fact in issue and that makes it relevant to the proceeding. The mutilation as observed by learned SAN does not affect its admissibility as that only relates to weight to be attached.
The court in the case of IGWEDIBIE V. IGWEDIBIE & ANOR (2013) LPELR-21258(CA) held that:
“It is the law that admissibility of a document which is essentially based on its relevance and the weight to be attached thereto are different issues, thus a document that is admissible may lack weight or evidential value. See THE UNITED NIGERIA INSURANCE COMPANY LIMITED V. UNIVERSAL COMMERCIAL AND INDUSTRIAL CO. LTD. (1999) 3 NWLR (PT. 593) 17… Per AKEJU, J.C.A. (P. 24, paras. A-D) .
Consequent upon the foregoing, I find the said exhibit C13 to be relevant and admissible and same is accordingly admitted in evidence.
With regards to exhibit C16, the objection of counsel to the Claimant is that same is a photocopy and that the Defendant ought to be in custody of the original. Counsel cited section 232 of the Evidence Act while learned SAN stated that section 233 is applicable.
I have taken a careful look at the said exhibit and rightly find that same is a photocopy. By the general provision of the Evidence Act, an original document is legally regarded as primary evidence while the photocopy tendered is the secondary. In that light, section 85 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. While section 89 states the circumstance under which the secondary documents can be tendered, the Defendant in the instant case did not lay foundation to establish the circumstance which impels them to tender the photocopy notwithstanding that same was tendered through the adverse party, the failure to lay foundation is however not fatal to admissibility and same is accordingly admitted in evidence.
With regards to Exhibit D4a which counsel to the Claimant contended was not pleaded nor frontloaded, I have taken a look at the said document and find that same is a petition against Mr. Harith Sulayman for defrauding Fidelity bank, written to the Economic and Financial Crimes Commission and dated the 29th February, 2016. The said document forms part of three documents jointly tendered as documents relating to a loan offer given to Mr. Harith as stated in item no.3 of the list of documents. I have also taken into account paragraph 6 of the statement of defence where the Defendant averred to the effect that the fraud perpetrated by Mr. Harith in respect of the loan is currently with the EFCC.
The forgoing clearly negates the contention that the document was not pleaded nor frontloaded and same is accordingly admitted in evidence.
With regards to exhibit D9, counsel failed to state the ground upon which he is objecting to the admissibility of the document and same is not addressed in the Claimant’s final written address. Consequently, the objection is deemed abandoned and the said exhibit is accordingly admitted in evidence.
Having said that, I then turn to resolving issue one which is ‘whether or not in view of the circumstances of this case, the Claimant as a former employee of the Defendant is entitled to a letter of reference’.
The forgoing issue is formulated particularly in view of the fact that both parties are in accord that the Claimant is a former employee who retired from the employment of the Defendant with effect from the 31st of December, 2015 as established by exhibits C2, the letter of employment; exhibit C3, the notice of retirement from the bank and Exhibit C4 which is the letter written to the Claimant by the Defendant to inform him of his ‘revised end of service statement’ upon receiving his notice of retirement dated the 15th of April 2016.
While that is settled, the core of the issue before the court is that the Claimant sought for admission to three universities in the United Kingdom to pursue his PhD Degree after his retirement. He did not tender any of the documents with which he applied except for exhibit C6 which is the receipt he claimed to be issued upon paying a foreign admission consultant. However, he requested the Defendant to write a reference letter in order to facilitate the admission and the Defendant being his former employer wrote exhibits C5a, b and c i.e. a letter of introduction of the Claimant dated May 25, 2017 and respectively addressed to University, of Birmingham, University of Aberdeen and University of Kent.
There is no doubt that the introduction of the Claimant to the said Universities occurred after the Claimant’s retirement and after the Claimant was notified of his end of service statement.
I also find that upon the three universities receiving the application of the Claimant, one of them, being University of Kent sent a request for reference to the Defendant to be written on behalf of the Claimant but the Defendant did not respond to the request. Although the Claimant did not tender the request sent to the Defendant by Kent University, but exhibit C7 which is an email communication between the Claimant and officers of the Defendant shows that the Defendant informed the Claimant that they received a reference request from Kent University UK, but they are constrained to send a response to the request because of Past Due Obligation he is yet to regularize with the bank. The said past Due Obligation is in respect of a loan transaction involving one Mr. Sulayman Harith which the Claimant as a Marketing Officer played a role in obtaining from the Defendant Bank. In addition, according to the Defendant, the Claimant is indebted to it in the sum of N4,526,655.52. The Defendant also posited that the reason for the refusal was because the Claimant was considered negligent and careless in doing his job. They added that he did not achieve anything outstanding or worthy of commendation at any point in time as a staff of the bank and that the Claimant resigned because he realized he could not perform at the Warri branch where he was posted. The Defendant tendered Exhibit D3 which is an email correspondence between the Claimant and the Chief Human Resources Officer of the Defendant where in the Claimant stated the reason why he opted for early retirement.
Notwithstanding the statement made by the Claimant in Exhibit D3, it is clear that in view of the exhibits C5, C6 and C7 and the findings made therefrom, it is established that that the Defendant is aware that the Claimant applied for admission into University of Kent and requires a reference for the completion of the admission process.
What is therefore contentious before the court is firstly, whether the Defendant bears an obligation to write a reference on behalf of the Claimant and secondly, whether the Defendant is justified in refusing to write the said reference to University of Kent in view of the reasons proffered.
In resolving the two foregoing contentions, let me start by stating that at common law, there is no obligation on an employer to make reference for an employee who has left the service of the employer. This was reiterated by Labour Law Text authors including E.E. Uvieghara who wrote in Labour Law in Nigeria (2001) at page 35 that:
“there is no legal duty on an employer to provide an employee with a testimonial of character or to answer question from interested parties concerning an employee’s character”.
The foregoing notwithstanding, the said common law position has evolved to accommodate exceptions such as where there is a provision via a contract of employment or where same is implied by the nature of general practice or custom. Under such circumstance, the employer may be duty bound to provide reference and must exercise a duty of care in issuing same, else the employer becomes liable in negligence either to the person to whom the reference is made or on behalf of the employee for whom it is made.
Having said that, I must posit that the Claimant has the duty to prove the claim that he is entitled to a reference/confirmation letter to be written on his behalf by the Defendant as a follow up to the letter of introduction it earlier wrote to University of Kent. Also, the Claimant bears the burden of proof that the Defendant is under an obligation howsoever, to write the said reference.
The foregoing is predicated on the position of the law that he who asserts must prove. The court in N.B.C Plc v. Olarewaju (2007) 5 NWLR [Pt. 1027] 255 at 267 – 268 Paras.F – A (CA) held that He who asserts must prove. In civil cases, the burden of proof is on the plaintiff. He must discharge both the legal and evidential burden of proof. Per Ogunwumiju JCA.
In an attempt to discharge the burden, counsel to the Claimant argued that the Defendant in confirming the employment of the Claimant through exhibit C2 demanded for three satisfactory references which should include one from the last employer; a Lecturer or Head of Department of the tertiary institution he attended and a character reference who is not a relation.
Counsel also added that by clause 3.6 and 3.16.7 of the Defendant’s Personnel Policies and Procedure Guide, it is expressly stated that an ex-staff maybe entitled to a testimonial.
The foregoing contention of counsel to the Claimant was in reaction to the Defendant’s counsel’s argument that the Defendant is not under obligation to write a reference for the Claimant.
In view of the foregoing, I have taken a careful look at the said exhibit C2 and find rightly so that the confirmation of the Claimant’s employment was predicated on the provision of three references. I have also taken a look at the Defendant’s Personnel Policies and Procedure Guide (PPPG) tendered by the Defendant as D2 and I find that while the provision of 3.6 confirms the requirement of references/background check for employees, paragraph 3.15.7 which counsel to the Claimant cited as 3.16.7 reads that:
“Except in cases of summary dismissal, an employee may be issued with a Testimonial of Service provided all outstanding debts, if any have been settled and the bank‘s property in his/her possession returned”.
Arising from exhibit C3, which is the notice of retirement, it is apparent that the Claimant was not dismissed and so he may be entitled to testimonial of service provided all outstanding debts if any is duly paid. I agree with the Claimant that the word ‘reference’ includes testimonial as stated in the case of MUSTAPHA MAIHAJA V IBRAHIM GAIDAM (2018) 4 NWLR (PART 1610), 454.
That said, the word ‘may’ used in the foregoing provision suggests that the Defendant has a discretion which must be justifiably exercised within the limit provided in the said provision. In the case of ORL v NCC (2007) WRN (Vol.18) 87 CA held that:
“The word ‘May’ is an auxiliary verb which qualifies ability, competence, probability or contingency. Regardless of the instrument in which it appears, whether Constitution, statute, deed, contract. The Court sometimes construe ‘may’ as shall or must so that justice may not be a slave to grammar. However, as a general rule, the word ‘may’ will not be treated as a word of command unless there is something in the context or subject matter of the Act to indicate that it was used in such sense. In consideration of statutes and rules, the word ‘may’ as opposed to shall is indicative of discretion or choice between two or more alternatives but the context in which the word appears must be the controlling factor. In other words, in interpreting the word ‘may’ the context in which the word appears is the controlling factor whether it has a mandatory or directory effect. Although the etymological meaning of ‘may’ is permissive and facilitative and seldom can mean must and imperative, it assumes this last mentioned character when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise the power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative.” Per Odili JCA.
In view of the effect of the word ‘may’, there is no gainsaying that the Defendant, as against the general common law position, owes the Claimant the duty to issue testimonial consequent upon the provision of paragraph 3.15.7 of Exhibit D2 which forms part of the documents regulating the employment relationship between the Claimant and the Defendant. However, it must be reckoned that the Defendant has a discretionary power with regards to the issuance of the testimonial in view of the same provision.
Also, in view of the fact that the banking practice generally requires reference from last employer without which such exiting employee may not be re-employed as exhibited in the case of Mr. Olisah Gerald Chidi v Fidelity Bank Plc and Anor (Unreported) (suit NICN/EN/41/2017) delivered on the 28th of May, 2018, it is manifest that the exercise of the discretionary power in respect of the issuance of testimonial of service is to effectuate a legal right. Therefore, the word ‘may’ as used in the forgoing section can be construed as imposing an obligatory duty.
Considering the proviso on outstanding debts if any, it is imperative to consider whether the Claimant is indeed indebted to the Defendant so as to be entitled to the exercise of the Defendant’s discretionary power with regards to the issuance of testimonial or reference letter.
It is needless to also state that the burden is on the Defendant to prove that the Claimant is indebted in the sum of N4,526,655.52. in this wise, I have also taken a look at the evidence before the court and find that aside from the fact that the Defendant failed to plead how the said debt came about despite repeatedly stating that the Claimant is indebted in the said sum, it also failed to tender any evidence in proof of the said debt or any letter notifying the Claimant of the Debt or any acknowledgment by the Claimant of the said sum as a debt. Exhibit C3 which is the correspondence between the Claimant and the Chief Human Resources Officer does not also establish the said debt.
It was held in Olorunshola v. Lagos Building Investment Company Ltd. (2010) LPELR-4735(CA) to the effect that:
“The usual way of proving a debt is by putting in the statement of account or secondary evidence where it is admissible. See Olorunfemi V N.E.B Ltd (2003) 5 NWLR (Pt.812) 1 at 24-25 paragraphs H-A.” Per Galinje, J.C.A. (P.14, Paras.D-E)
In view of the foregoing authority, the Defendant have a duty to prove concisely how the Claimant became indebted to it in the sum of N4,526,655.52. to establish the said claim, nothing has been placed before this court to establish the existence of the debt as claimed. It is elementary law that subject to the scale of evidence preponderating the burden of proof rests on that party who would fail if no evidence at all or no further evidence is given. In the instant case, there was clearly no proof of a debt as required by law.
The other consideration in view of the exercise of discretion is the contention relating to the negligence and carelessness of the Claimant. In this regards, the Claimant had initially posited via his statement of fact and witness statement on oath that he served the Defendant diligently and was twice issued with certificate of meritorious service and was never queried for any misconduct throughout his service. He tendered exhibit C11 and C12 which are the certificates of Long Service Award in appreciation of 10 and 15 years of meritorious service respectively issued by the Defendant to the Claimant. He also tendered exhibit C15 which is a congratulatory letter dated March 31, 2015 and addressed to the Claimant in celebration of the Claimant’s commitment and contribution to the Defendant over the years. In addition, he tendered exhibit C14 which is an email conversation between himself and the Regional Bank Head who on the 5th of January, 2016 replied him that he is a great chap and his maturity and calmness will be missed.
The foregoing exhibits were to establish the fact that the Claimant meritoriously carried out his job for the Defendant but the Defendant posited that he did not and that he was careless and negligent. At this point, the burden of proof shifts unto the Defendant to establish how the Claimant was negligent and careless. The court in the case of C.O.P. v. Oguntayo (1993) NWLR (Pt.299) 259 posited that:
“In civil cases while the burden of proof may initially be on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from plaintiff to defendant and vice versa as the case progresses”. PER OGWUEGBU, J.S.C. (P. 13, Paras. C-D)
In view of the foregoing, I have taken a look at the evidence presented by the Defendant and I cannot find any scintilla of evidence charging the Claimant of carelessness or negligence in the course of his employment. There is no query tendered in evidence issued to the Claimant at any point in time for any act of negligence or carelessness. I also acknowledge the testimony of DW1 who stated that she does not know whether the Claimant was negligent or not as she never worked with him. This suggests that there is no proof of negligence on the part of the Claimant in the discharge of his duties.
With regards to failure of the Claimant to follow procedure in the issuance of loan to a customer, the Defendant posited that the Claimant as a branch Leader persuaded the Defendant to grant a loan of N50million to one Mr. Harith and part of the condition stated in the letter of offer was the receipt of a letter of domiciliation and non-indebtedness from Mr. Harith but the Claimant breached the dynamic by releasing funds to Mr. Harith without obtaining the letter or exercising due diligence which led to the defrauding of the bank of N23million by the said Mr. Harith which was paid into his first bank account to refinance a facility. The Defendant added that the said issue of the loan by Mr. Harith was the reason why it took the Defendant up-to April 2016 before the severance package of the Claimant was paid.
In proof of the said transaction, the Defendant tendered Exhibit D4a,b and c which are documents relating to the loan. Exhibit D4a is the petition written to EFCC by the Defendant with regards to the defrauding of the Defendant by Mr. Harith dated the 29th of February, 2016. Exhibit D4b is an internal memo for the approval of Facility Restructure and Interest Stoppage on the loan issued to Mr. Harith dated the 25th of April, 2016 while Exhibit D4c is a letter written by NLNG to the Defendant to confirm that Mr. Harith is its staff.
While the foregoing does not tell the beginning of the loan issue, exhibit C16 tendered by the Defendant through the Claimant is the Offer letter for the loan of N50million issued to Mr. Harith. The said letter of offer rightly states as one of the conditions for the loan to be:
“Receipt of irrevocable letter of domiciliation from the borrower’s employer agreeing to domicile the salary, allowances and final pay with Fidelity Bank duly executed by the designated/authorized officers after offsetting the loan balance from FBN”.
The Defendant contended that the Claimant failed to obtain the said letter of domiciliation before disbursing the loan and same led to the defrauding of the Defendant by Mr. Harith. The Defendant added that the Claimant pressured Mr. Harith to pay the amount owed and pleaded with the Defendant to restructure the remaining debt which was done on the basis that the Claimant would ensure that Mr. Harith pays the said sum. But after the Claimant was cleared by the Defendant and paid his severance package, he and Mr. Harith made no effort to redeem their assurances.
Counsel to the Claimant contended that in view of the evidence before the court, the first tranche of the loan grant did not require the domiciliation letter since Mr. Harith was still indebted to First Bank and the loan first granted to Mr. Harith was to make him pay First Bank, there was no way the Claimant could have obtained a certificate of indebtedness and letter of domiciliation.
It is in view of the contention that I have taken a careful look at all the documents relating to the loan in order to ascertain whether the Claimant indeed failed to exercise due diligence and was careless in the facilitation of loan to Mr. Harith which would warrant him to be denied a reference by the Defendant.
In evaluating exhibit C16, I find that the purpose of the loan was:
To meet personal needs and also to pay off the loan balance of N23,011.265.76 with FBN
While the security for the loan is:
- Domiciliation of salary, allowance and final pay from NLNG with Fidelity Bank PLC (after the loan balance of N23,011,256.76 from FBN has been paid).
- Credit Life Insurance Policy.
What the foregoing means is that the loan of N50million given to Mr. Harith was to be secured by his salary and other payment by his employer being NLNG but the salary cannot be domiciled with the Defendant until the sum owed to First Bank is paid off with a first tranche of the loan issued by the Defendant. This fact was known to the Defendant as evidenced in Exhibit D4a which is the petition written to the EFCC where the Defendant narrated that the loan was approved on the condition that it should be in two installments and that the second be made available only on the provision of the letter of non-indebtedness and letter of domiciliation. The narrative also captured the fact that the said Mr. Harith withdrew the money after it was paid to FBN and that the branch initially refused to release the second batch but following persistent pressure and blackmail, the branch management allowed him withdraw additional 10 million.
In view of the foregoing, counsel to the Claimant contended that the domiciliation was not a requirement to the initial draw down and that the management of the Defendant approved the loan.
Form the foregoing narrative, It is clear that the Defendant has not established how the Claimant failed to exhibit due diligence in the grant of the loan when from the onset the Defendant was aware that Mr. Harith was to be granted the first tranche of the loan to clear his debt with First Bank before he could be issued with certificate of non-indebtedness and letter of domiciliation. Every other fact in relation to the failure of Mr. Harith cannot be blamed on the Claimant since it is clear that Mr. Harith intended from the onset to defraud the Defendant.
In addition, Exhibit D4b which is the facility restructure prepared by the branch where the Claimant worked also shows that the Defendant had recovered N22million of the debt and the balance of N11.4million was to be paid in two installments. The restructuring was also approved by the Defendant.
What is made out of the foregoing is that the Defendant is not justified in refusing to confirm the earlier references made to the University of Kent on the basis of the transaction which the Defendant as an organization had with Mr. Harith Sulayman, a transaction which went sore on the basis of the fraudulent practice of the customer rather than the ineptitude or negligence or carelessness of the Claimant. The finding is concretised by the fact that the Claimant was not cleared until after he had partaken in the effort to recover the loan. This was evidenced by Exhibit D7 which is the email correspondence between the Defendant and the Claimant. I also find that it was after the Claimant had been paid his severance benefit and cleared by the Defendant in April 2016 via exhibit C4 that he started making preparation for his PhD programme in 2017. In the month of May, 2017, he requested for a reference to be written to the three universities and same was granted by the Defendant as shown in exhibit C5a,b,c. The University of Kent then needed a confirmation of the reference to be certain it came from the Defendant and in June, 2017, exhibit C7 which is an email correspondence between the Claimant and the Defendant ensued. The Claimant was informed by one Ruth Ariyo that they received a reference request from University of Kent but they are constrained to send the request due to past due obligations which the Defendant assumed to be the issue of loan granted to Mr. Harith. He therefore explained to one Mr. Godwin (an officer of the Defendant) that the initial references were written based on the fact that his retirement benefits were paid to him after the recovery he made on the account of Mr. Harith and the subsequent approval that was obtained to restructure the balance. He added that:
“After we made recoveries of N24million on the account, I was told by Ugochi Osinigwe that the only time I could be let go was after management approval was secured for restructuring the outstanding balance. I worked with Mfom Umah (the account officer) and the approval was secured. It was on the strength of this that I was cleared by the bank. You may wish to check your records to confirm this.”
Although the Claimant was cleared upon being issued exhibit C4 dated the 16th of April, 2016, the approval for restructuring was dated the 25th of April, 2016. The Defendant also admits the said position that the Claimant was cleared after the restructuring of the loan.
In view of the foregoing, and in view of the failure of the Defendant to establish how the Claimant is personally indebted to it, it is safe to conclude that the Defendant is not justified in denying the Claimant a confirmation of the reference made to the University of Kent.
I am not oblivious of the contention made by counsel to the Defendant to the effect that Exhibit C4 which is his letter of clearance contains a paragraph which states that :
“Also be informed that any other indebtedness/expenses incurred during your employment yet unknown, shall be communicated to you for your settlement”
I must state that the Defendant woefully failed to establish such indebtedness nor its communication to the Claimant for him to settle as required by law.
Consequently, I must conclude on issue one by stating clearly that in view of the evidence before this court, the Defendant owes the Claimant a duty to provide reference/testimonial upon exit of employment and although the duty is discretional, the Defendant has not justified the denial of the Claimant the issuance of the reference/testimonial having failed to establish that the Claimant was either dismissed or indebted to it in view of the provision of section 3.15.7 of the PPPG (exhibit D2) and in view of the fact that the discretion of the Defendant affects the Claimant’s legal right.
I then turn to issue two which is ‘whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought’. The resolution of the said issue touches on the reliefs sought and it is consequently apposite to address each of the reliefs seriatim.
Relief one is a declaratory relief as it is for A DECLARATION that the willful refusal by the Defendant to write a Letter of Reference/Confirmation to the University of Kent on behalf of the Claimant, especially after it had written the earlier Letter of Introduction was wrongful, unjustifiable, unwarranted and was done in bad faith.
Firstly, the relief being declaratory requires the Claimant to succeed on the strength of his case and not on the weakness of that of the Defendant and to do that must present cogent and convincing evidence. The court in this regard held in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) that:
”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See: AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).
That said, secondly, the grant of the said relief is dependent on the resolution of issue one which largely deals with the request and refusal of the reference/confirmation to University of Kent.
While the burden is placed on the claimant to prove how the refusal of the Defendant to write a letter of reference/confirmation to the University of Kent is wrongful and unjustifiable, unwarranted and done in bad faith, there is no doubt that by the resolution of issue one, the evidence adduced by the Claimant have been evaluated to establish the fact that the Claimant served the Defendant meritoriously for 15 years and willfully resigned his employment. He also proved that the reference/letter of introduction made on his behalf was sought for after he had been cleared by the Defendant and he is not in any way indebted to the Defendant nor dismissed from employment which would have warranted the denial of the reference and confirmation.
Upon a consideration of the evidence before this court, issue one is resolved to the effect that the Defendant is under an obligation to provide testimonial of service/reference to the Claimant in the absence of any circumstance which makes the Claimant undeserving of the issuance of the reference; a circumstance which the Defendant failed to establish.
Consequently, the Claimant successfully discharged the burden of proof on a balance of probability and is deserving of the said relief one as prayed to the effect that this court makes:
A DECLARATION that the willful refusal by the Defendant to write a Letter of Reference/Confirmation to the University of Kent on behalf of the Claimant, especially after it had written the earlier Letter of Introduction was wrongful, unjustifiable, unwarranted and was done in bad faith.
Relief two is for an order that is dependent on the success of relief one. It is for AN ORDER commanding the Defendant to write a letter of apology for portraying the Claimant as a fraudulent person and for causing his admission to be cancelled and to write a Letter of Reference/Confirmation to The University of Kent or any other university that may offer the Claimant an admission to pursue his post-graduate studies in future.
In view of the said relief, it is not established that the Claimant was portrayed as a fraudulent person in view of the fact that no communication was at all made by the Defendant to portray the Claimant as fraudulent. No useful material was placed before the court to prove that the admission of the Claimant was cancelled due to the refusal of the Defendant to write a reference. Consequently, the part of the relief seeking for an apology is lacking in merit and is consequently refused.
However, upon the finding and holding that the Defendant is obligated to issue testimonial of service/reference to the Claimant and the absence of any circumstance warranting the denial of same in view of section 3.15.7 of exhibit D2, the second half of the claim requiring an order directing the Defendant to “write a Letter of Reference/Confirmation to The University of Kent or any other university that may offer the Claimant an admission to pursue his post-graduate studies in future” is meritorious and same is accordingly granted. For the sake of clarity, this court makes:
An order directing the Defendant to write a Letter of Reference/Confirmation to The University of Kent or any other university that may offer the Claimant an admission to pursue his post-graduate studies.
Relief three is for AN ORDER commanding the Defendant to pay the Claimant his minimum annual remuneration which is the sum of N13,162,842.00 (Thirteen Million, One Hundred and Sixty-Two Thousand, Eight Hundred and Forty-Two Naira) only, which he has lost because of the Defendant’s conduct.
In claiming the said relief, Claimant posited that the said sum of N13,162,842.00 (Thirteen Million, One Hundred and Sixty-Two Thousand, Eight Hundred and Forty-Two Naira) only was his last annual remuneration and but for the Defendant’s conduct in refusing to write the letter of confirmation/reference to University of Kent, he would have still be earning same.
In view of the said relief, Defendant contended that the employment contract with the Claimant ended on 31st December, 2015 and the Defendant cannot pay the Claimant for a period he did not work.
In view of the foregoing contention, it is the position of this court that the Claimant willfully terminated his employment on 31st December, 2015. His admission process did not commence until May 2017 in view of request for references placed before this court. The failure to secure another job or the termination of the initial one cannot be blamed on the Defendant whose refusal to issue a reference was merely for academic pursuit of the Claimant, a demand and refusal which occurred over a year after the Claimant voluntarily retired.
In addition, this court finds that there is no nexus between the conduct of the Defendant and the Claimant’s loss of income which would entitled him to the grant of relief three. Same is accordingly dismissed for lack of proof.
Relief four is a combination of special and general damages in the sum of N100,000,000.00 (One Hundred Million Naira) only, to be awarded against the Defendant.
With regards to special damages, the law is trite that a Claimant must particularly plead and strictly prove the sum claimed. The court in the case of NMA V. MARINE MANAGEMENT ASSOCIATES INC. & ANOR. (2008) LPELR-4583(CA) held that:
“Special damages are items of loss which the Plaintiff has to particularise in his pleadings to enable him to give evidence thereto and to recover thereon. See Attorney-General, Oyo State v. Fairlakes Hotels (No 2) (1989) 5 NWLR (Pt 121) 255. Further, special damages must be strictly proved. See Agunwa v. Onnkwue (1962) 1 All NLR 537; (1962) 2 SCNLR 275 and Basil v Fajebe 1990 6 NWLR (Pt 155) 172.”Per SALAMI, J.C.A(P. 31, paras. D-F).
General damages on the other hand “is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” See EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) Per AKEJU, J.C.A. (P. 18, paras. A-B).
The Claimant with regards to the claim for special damages particularized the sum of N13,162,842.00 as lost annual income, GBP 3000 as cost of securing the admission with the University of Kent, N100,000 as cost of filing the suit and N5,000,000 as professional fees.
With regards to the particularized sum, the Claimant attempted to prove the cost of securing the admission put at GBP 3000 by tendering exhibit C6 a & b while in respect of the professional fees, he tendered exhibit C10 which is the receipt for the sum of N3,000,000 paid to the Law firm representing him.
In view of the foregoing, I must state that the courts have reckoned that the production of receipts proves special damages. The court in U.T.B. v. Ozoemena (2007) ALL FWLR (Pt. 358) 1014 at 1049 Paras. E — F (SC) held that:
“There is a strict proof of special damages where there is a production of receipt as evidence of payment without oral evidence of the maker ELUWEWE V. ELDER DEMPSTER AGENCIES LTD (1976) 6 UILR PT 11 225.” Per Ogbuagu JSC
The forgoing notwithstanding, I must state with respect to the cost of admission processing that the Claimant has not presented any evidence in proof of the fact that he has lost the admission offered to him by University of Kent due to the refusal of the Defendant to issue reference/letter of confirmation. The Claimant particularly did not present the evidence of the admission in the first place and by relief one wants the court to direct the Defendant to write the letter of reference to University of Kent in particular. Consequently, if the admission was not obtained or secured or if it has been cancelled and the Claimant fails to prove it to be so, there is no basis for an Order for the refund of the money paid to process the admission. The processing of the admission is not enough to make the Defendant liable for the payment. To be liable for the payment, the cost must be linked to the conduct of the Defendant occasioning a loss in respect of the claimed sum.
With regards to the claim for sum of N3,000,000 paid as professional fees, the said payment is in the realm of cost of which the courts are to exercise discretion in awarding so as not to make it punitive. The court in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) noted that:
“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).
In the instant case, the Claimant is generally the successful party in view of the grant of reliefs one and two. Consequently, the Claimant is entitled to the special damages in respect of the sum paid as professional fees for prosecuting this suit. However, in view of the fact that the Claimant has lumped together the claim for general and special damages, the award shall be made under a single heading after considering the claim for general damages which requires no particular pleading or proof.
The award of general damages is upon the consideration that the Claimant was wronged by the Defendant in view of the complaint made by the Claimant. Arising from the facts and circumstances of this case, it is without doubt that the Claimant was wronged by the Defendant upon refusal to write a letter of reference as a follow up on the letter of introduction initially written to University of Kent after the Claimant severally demanded for same. There is no gainsaying that the Claimant had a right to demand for the reference and he was denied same and the denial is a wrong which ought to be remedied. This is founded upon the principle that where there is a right there is a remedy. The court in EZE & ORS v. GOVERNOR OF ABIA STATE & ORS (2014) LPELR-23276(SC) held that:
“It is a general principle of law of great antiquity to the effect that where there is a violation of right there must be a remedy. Put in another way, ubi jus ibi remedium – meaning where there is a right there is a remedy – see Bello v. A-G Oyo State (1986) 5 NWLR (pt. 45) 828; FBN PLC v. Associated Motors Co. Ltd (1998) 10 NWLR (pt. 571) 441; Labode V. Otuba (2001) 7 NWLR (pt. 712) 256, Oyekanmi v. NEPA (2000) 12 SC (pt.1) 70 at 84.” Per ONNOGHEN, J.S.C. (P. 29, paras. E-G).
Consequent upon the foregoing, the Claimant is indeed entitled to general damages although not in the sum claimed. Rather, the Defendant is hereby directed to pay to the Claimant the sum of N2,000,000 being special and general damages.
Consequent upon the foregoing, issue two is resolved largely in favour of the Claimant in the extent to which the reliefs sought has been granted.
The order made in respect to payment of money is to be complied with within 30 days of the entry of this judgment. Failure of which the awarded sum shall attract 10% interest per annum.
In the final analysis the case of the Claimant is found to be meritorious in the extent to which reliefs one two and four have been granted. Relief three which is refused is considered to be lacking in merit and same is accordingly dismissed.
Judgment is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR.
JUDGE
