IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 16TH OCTOBER, 2018 SUIT NO. NICN/AD/02/2016
BETWEEN
MR. TEMITOPE THOMPSON ELADIYA…………………… CLAIMANT
AND
STANBIC IBTC BANK PLC ……………..………..DEFENDANT
REPRESENTATION:
Rotimi Adabembe for the Claimant with him Helen Olanipekun, Kehinde Bayode,
Akinjide Akinrotimi, AbdulBasit Olaniyi.
Olasupo Bada for the Defendant with him Samuel Erinle.
JUDGMENT
It is the Claimant’s case vide his amended statement of facts filed on the 4th October, 2017 that he was employed into the service of the defendant as a banking officer on the 24th of February, 2010 and he was immediately redeployed to the defendant’s Ado-Ekiti branch as a customer consultant officer of the bank. He stated that his employment was subsequently confirmed and rose through the ranks to become the Branch manager of the Ado-Ekiti branch of the defendant. He went on that on the 1st of December, 2013, he was redeployed to the defendant’s branch in Ondo town as the Branch Manager vide the letter of redeployment issued him on the 14th November, 2013. He averred that he has neither been involved nor implicated in any fraud throughout his period of service with the defendant, or had any disciplinary issue in the course of his duty. That one of the successes recorded while in the employment of the defendant at Ado-Ekiti Branch office was his ability to penetrate the Ekiti State Universal Basic Education Board/Universal Basic Education Commission (SUBEB/UBEC) between the year 2012 and 2013 by moving the salaries account of the said UBEC in the state that comprises of the staff of all the primary school teachers in Ekiti State to the defendant’s branch office in Ado-Ekiti, Ekiti State which necessitated the grant of interest based loans on the SUBEB/UBEC workers in Ekiti State which was found out to be profitable to the defendant before the same system and innovation was replicated and introduced in other states of the Federation where other branches of the defendant are located. He contended that the repayment of the said SUBEB/UBEC loan was based on the availability of regular payment of salaries by the Ekiti State Government, that the release of the loans to the beneficiaries by the defendant branch was by monthly deductions of same the SUBEC/UBEC staffs’ salaries to the designated salary, he disbursed the three batches of loans granted by the defendant to the beneficiaries that is the Ekiti State Mojere Primary School, Teachers Cooperative Multipurpose Society and he never misappropriated same for his own benefit. He pleaded that while he was in the service of the defendant in the Ondo Branch, he received a letter of invitation to the Disciplinary Enquiry Setup by the defendant to examine facts around the gross negligence and misconduct levied against him whilst discharging his duties at the Ado –Ekiti Branch office in year 2013, that the invitation letter of disciplinary enquiry dated 1st December, 2015. He further averred that the problem in respect of the loan facilities started when the Government of Ekiti State introduced the e-payment system into the payment system of its worker salaries, together with the delay and non-payment of workers’ salaries for months and that sometimes Ekiti State government would delay and refused to remit the deductions made in respect of the loan for months when workers’ salaries are paid. He noted that he did not in any way contribute towards the delay or refusal of the Ekiti State Government to remit the deductions into the defendant’s account since the commencement of the e-payment of workers salary in Ekiti State from 2012 or early 2013, as such, there is no reason and basis for him to be punished for it and have his job with the defendant to be terminated. He stated further that the money allegedly claimed to be in accounts of the leaders of the groups have been disbursed and paid into the account of the beneficiaries whose name had been substituted with those who initially applied and lost interest in collecting same and that the repayment with deductions have been consistently remitted into the defendant’s bank in Ado-Ekiti, that the defendant is still receiving the loan repayment from the individual beneficiary.
The Claimant averred that he was never and still not aware of the policy of the defendant as related to the grant and disbursement of the loan to the beneficiaries which he has breached and not complied with as he did not at anytime see, aware, read and sign any policy document/statement of the defendant as related to the grant and disbursement of these loan facilities at Ado -Ekiti branch office to the beneficiaries. It is the claimant’s further testimony that the sudden and unexpected termination of his employment without any alleged criminal offence, misappropriation of funds, bribery and without allowing him to opt out for resignation, is a wicked and perverse judgment against him, unlawful and illegal and he urged the Court to grant his claims. It is against this backdrop that the claimant claims against the defendant as follows:
A. A Declaration Order of this Honourable Court that the termination of the employment of claimant by the defendant as contained in the letter captioned and headed SERVICE NO LONGER REQUIRED and dated 16th December, 2015 without any justifiable and valid policy document to that effect is wicked, unlawful, embarrassing, unconstitutional, null and void and of no effect whatsoever.
B. A Declaration Order of this Honourable Court that defendant should forthwith accept that the Claimant should be allowed to resign his employment with the defendant instead of the termination of employment as issued by the defendant based on the fact that the act of defendant to have terminated the claimant employment is unlawful, wicked, humiliated and unconstitutional.
C. An Order of this Honourable Court compelling and directing the defendant to allow the claimant to charge (sic) and convert the termination of the employment of the claimant by the defendant to resignation as the claimant has stated in various letter of appeal written to the defendant.
D. An Order of this Honourable Court that the claimant should not be compelled to make repayment in respect of the loan facilities granted to him by the defendant together with the purported chargeable interests as now calculated therewith by the defendant, since the appointment and salaries which the said loan facilities attached with has been abruptly terminated by the defendant without any justifiable reason
E. A sum of N400,000,000.00 (Four Hundred Million Naira Only) as general damages for sudden, unexpected, unprepared and unlawful termination of the employment of the claimant with the resultant great humiliation, shock, financial and psychological trauma with untold hardship which has been subjected to since the period of time when his employment has been unjustifiably terminated.
F. An Order for the payment of sum of N3,000,000.00 (Three Million Naira Only) as special damages for the professional fees and cost of litigation in respect of this suit which the legal practitioner and counsel to the claimant has charged him for the prosecution of this case.
The defendant likewise filed its statement of defence and counter-claim on the 26th May 2016, it admitted that the claimant was its employee. It stated that it is a fundamental term of the Claimant’s employment that either party to the contract has a legal right to terminate the contract providing that the party terminating the contract shall give a month notice in writing or alternatively pay one(1) month salary in lieu of notice to the other party, it contended that there was no time during the pendency of the claimant’s employment that the defendant represented to him that the employment offered him will remain ad infinitum as both parties were well aware of their legal right to terminate the contract of employment. It is further the contention of the defendant that it lawfully exercised its legal right under the contract of employment and termination was not wrongful as alleged by the claimant and that the defendant strictly complied with the terms and conditions of the contract of employment. It also continued that the claimant is estopped from imputing motive into the conduct of the defendant in exercising its legal right to terminate the Claimant’s contract of employment. It further averred that the claimant as the branch manager of Ado-Ekiti Branch granted credit facility to Ekiti State Mojere primary Schoool teachers, Co-operative Multipurpose Society negligently and acted in breach of the defendant’s credit policy in the performance of his official duties in respect of the management, disbursement and monitoring of the facilities as approved by the Defendant.
PARTICULARS OF NEGLIGENCE AND PERFORMANCE FAILURE
i. The claimant in flagrant breach and violation of a written undertaking dated 26th June 2012 and signed by him failed to ensure that the facility was disbursed strictly in compliance with the loan schedule approved by the Defendant’s Credit Department of the Head office.
ii. The Claimant allowed disbursement of the loan to individuals whose names were not in the approved loan schedule
iii. The Claimant without justification allowed multiple loan disbursements to the personal accounts of its executives namely: Mr. Richard Idowu (President) and Mr. Christopher Okiki (Treasurer)
iv. The Claimant also allowed transfer of funds from the Society’s account to the personal accounts of its executive.
v. The Claimant violated the Defendant’s credit process by disbursing the loans to unauthorized beneficiaries who were not part of the approved list of beneficiaries and members of the society
vi. The Claimant also engaged in carrying out cash exchange of the sum of N2,000,000.00 (Two Million Naira ) Only with Mr. Richard Idowu, the president of the Society using his personal account, a misconduct which violates the defendant’s policy on gift and entertainment.
vii. The Claimant allowed the Society’s executive, Mr. Richard Idowu( President), Mr. Sunday Awe (Secretary) and Christopher Okiki (Treasurer) to arbitrarily introduce or replace the names on the approved loan schedule with the names of unauthorized applicants during the disbursement of the loans and to wrongfully move part of the loan proceeds in the sum of N11,550.000.00 (Eleven Million Five Hundred and Fifty Thousand Naira) only to their various personal accounts without the claimant raising any objections.
The defendant also averred that the negligent act and misconduct stated above exposed the defendant to a potential credit loss of N595,920.000.00( Five Hundred and Ninety Five Million, Nine Hundred and Twenty Thousand Naira) Only being total outstanding indebtedness of the Society on the facility as at 6th November , 2015 and interest continues to accrue on the amount on a daily basis until the total outstanding indebtedness is fully repaid. It stated that the facility granted by it to the society is depositor’s fund and the defendant is entitled to demand full repayment of the facility from the Society whether or not the claimant’s employment is terminated, it also continued that the act of the claimant exposed the defendant to huge potential financial loss on account of the Claimant’s negligent conduct in the monitoring and disbursement of the facility of the Society, that the defendant can lawfully exercise its legal rights under the contract of employment and that the termination of the claimant’s employment was not wrongful as alleged by the claimant but that it(the defendant) no longer require his service and the decision was duly communicated to him vide the letter dated 16th December, 2015. It concluded that with regards to the legal fees, it is a private arrangement between the claimant and his solicitor and the claim hence the claimant’s claim is unmeritorious.
By way of counter claim, the defendant claimed against the claimant/defendant to counter-claim as follows:
The defendant/counter-claimant averred that during the course of the claimant’s employment, he applied for and was granted several credit facilities ranging from visa credit card, status car, car loan and unsecured personal loan. It contended that the termination of the claimant’s employment and payment of his benefit and that the claimant became indebted to the defendant/counter-claim in the total sum of N12,275,461.26 (Twelve Million, two Hundred and Seventy Five Thousand, Four Hundred and Sixty-One naira, Twenty-Six Kobo) only being the claimant/defendant to counter-claim’s aggregate indebtedness to the defendant as at 30th December, 2015 in respect of the various facilities granted to the claimant/defendant to counter-claim.
The breakdown of the above stated outstanding indebtedness is as follows:
| S/N | Description/Loan Type | Amount Outstanding as at 30 December, 2015 |
| 1. | Unearned Pension | N38,340.42 |
| 2. | Unearned Salary | N196,233.46 |
| 3. | Visa Credit Card | N477,319.92 |
| 4. | Status Car (Hyundai Azera) | N5,687,500.00 |
| 5. | Car Loan | N2,238,018.21 |
| 6. | Unsecured Personal Loan | N3,774,595.38 |
| N12,412,007.39 | ||
| Less claimant’s Benefit | N136,546.13 | |
| Total | N12,275,461.26 |
The defendant/Counter claimant stated that it communicated the said outstanding indebtedness to the claimant/defendant to counter-claim vide its letter dated 30th December, 2015 which he duly acknowledged on 4th January, 2016 but has failed to liquidate the debt and that as at 17th May, 2016, the breakdown of the outstanding indebtedness is as stated below:
| S/N | Description/Loan Type | Amount Outstanding as at 17 May, 2016 |
| 1. | Unearned Pension | N38,340.42 |
| 2. | Unearned Salary | N196,233.46 |
| 3. | Visa Credit Card | N225,272.64 |
| 4. | Status Car (Hyundai Azera) | N5,687,500.00 |
| 5. | Car Loan (Kia Optima) | N2,703,341.91 |
| 6. | Unsecured Personal Loan | N3,268,183.56 |
| Total | N12,118,871.99 |
It is averred that that the said outstanding debt continued to accrue commercial interest on daily basis until total liquidation thereof. Whereof the counter-claimant/defendant counter-claim against the claimant/defendant to counter-claim for the repayment of the sum of N12,118,871.99 together with interest at the rate of 21% until judgment and thereafter at the rate of 10% until liquidation thereof.
The claimant during trial testified for himself as CW2 and through One Olawunmi Idowu as CW1 and also testified for himself as CW2, they both adopted their statement on oath as their testimonies in this case. Claimant tendered some documents which were admitted in evidence by the Court and marked Exhibits TT-TT10. The defendant also during trial testified through One Ajulo Adeolu as DW, he adopted his sworn deposition dated 6th December, 2016 as his evidence in this case, he also tendered the certified copy of statement of account of claimant in compliance with section 84(2) of the Evidence Act which was admitted and marked as Exhibit AA.
In compliance with the rules of this Honorable Court, parties caused their final written addresses to be filed at the close of trial, the defendant/counter-claimant filed theirs on the 8th May 2018 and formulated three(3) issues for the Court’s determination viz;
1. Whether the Defendant/Counter-Claimant is entitled to and justified in terminating the employment of the Claimant vide a letter captioned “SERVICE NO LONGER REQUIRED” in a master-servant relationship.
2. Whether the Honourable Court can impose and foist the Claimant on the Defendant contrary to the terms of the employment in a master-servant relationship.
3. Whether the obligation of the Claimant to repay the loans he owes the Defendant is frustrated merely because its performance (execution) became more difficult.
On issue one, it is the contention of counsel to the claimant, while relying on the case of Akinyemi v. Odu’a Investment Co. Ltd (2012) 1 MJSC (Pt. II) 129 @ 154, that in law, a contract is a legally binding agreement and to be a contract, it must be something that the law would intervene in to enforce between the parties. It is also argued that the law is established that parties can, by consent, enter into a binding agreement that is legally enforceable by the Court as it is rightly put in the case of Best (Nigeria) Ltd v. Blackwood Hodge (Nigeria) Ltd & 2 Ors [2011] LPELR-776 (SC) @ 22. Counsel argued that in the instant case, Exhibit TT (Letter of Offer of Employment) is the proof of that contractual agreement that was duly entered into by the parties and which is still subsisting and urged the Court to hold that the contract of service between parties is valid in law as to allow the defendant its execution because it contains all the elements of a contract. Reliance was placed on the authorities of Metibaiye v. Narelli (2009) 16 NWLR (Pt. 1197) 326, 346 – 347 and Olujinle v. Adeagbo (1988) LPELR- 2622 (SC). Furthermore, it is submission of counsel is that by the prayer of the claimant this Honourable Court should declare the termination of the employment as unlawful because it was terminated without any justifiable and valid policy document, that the claimant want to use this Honourable Court not to follow the time honored principle enshrined in a master-servant relationship as it is not in dispute that the relationship between the parties was that of master and servant and that even in the extreme case of dismissal, no Court can declare such a dismissal of a servant by the master null and void. See the case of Kunle Osisanya v. Afribank Nig. Plc [2007] LPELR – 2809 (SC) @ 25-26 . Counsel further invited/admonished this Court to hold that the defendant is entitled to and justified in dispensing with the services of the claimant at any time and without giving any reason whatsoever to him as the Supreme Court in a plethora of cases held that a master has the powers to, both under the common law and under the master-servant relationship terminate the employment of a servant and that this power is never to be questioned by anyone as the master answers to no one in the exercise of his right to dismiss a servant. The following cases were referred to: Iboniboye-Obu v. NNPC [2003] LPELR-1426; Fakuade v. O.A.U.T.H.C Management Board [1993] LPELR-1233 @ 14-15 (para G-B) and Babatunde Ajayi v. Texaco Nig Ltd & Ors [1987] LPELR- 293 @ – 11 SC. 1. Counsel submitted that it is the law that where a contract of service gives a party a right of termination of the contract by either party, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of the termination of the contract and that the submission of the defendant that it complied with the provisions of the contract was buttressed by the claimant himself who under cross examination said that he was not dismissed, he only received a letter saying service no longer required and that he was paid one month salary in lieu of notice. See John Oforishe v. Nigerian Gas CompanY [2017] LPLELR – 42766 (SC) and Chukwuma v. Shell [1993] 4 NWLR (Pt 289) page 152. Counsel further submitted that as the defendant has fully complied with the terms of the contract by giving one month salary in lieu of notice, the claimant is estopped from alleging that his disengagement was unlawful. On this score, counsel further urged the Court to hold that since the Claimant admitted he was paid a month salary in lieu of notice as specified by Exhibit TT, which he duly collected, there is no legal justification whatsoever on the basis of which it could be said that the termination of the employment of the claimant was wrongful and actionable and accordingly, the Court was urged to dismiss the claims of the claimant.
On issue two, Counsel submitted that the claimant wants to use the Court to achieve what the time honored principle of both common law and contractual agreement that forbids the imposition of a willing servant on an unwilling master by the Court. See Dr. Chukwumah v. Shell petroleum Development Company of Nig. Ltd. [1993] LPELR-864 (SC). He noted that the master is entitled both under common law and the contract of employment to dismiss a servant for no reason at all and that his motive for taking such step cannot be questioned so long as he acted within the confines of the contract of employment and that the evidence before the Court is that the claimant was paid a month salary in lieu of notice which he collected, counsel therefore submitted that his collection of the salary in lieu of notice has put paid to any attempt to enter the employment of the defendant through any means. It is also the contention of counsel that the offer of appointment (Exhibit TT) which is the contract of employment between the parties does not make provisions for the demands of the claimant, as such the Court has been enjoined to give effect to the terms of a document duly executed by parties. Counsel urged the Court to reject the prayers of the claimant to order the Court to impose him on the defendant and relied on the the cases of Lake Chad Research Institute v. Mallamkolo Mohammed [2004] LPELR – 5796 CA @ 32-33 and Nongu v. Local Government Services Commission [2011] LPELR – 4851 (CA) @ 31-32.
On the claim for damages, counsel submitted humbly that there is no evidence before the Court that the claimant suffered any damage as a result of the defendant/counter-claimant’s exercise of his right to terminate his employment as a party cannot be liable in damages for doing an act which he is entitled to do under the law. The Court was urged to hold that the defendant/counter-claimant rightly exercised its right under the law in terminating the employment of the claimant. However, assuming without conceding that the defendant/counter-claimant wrongly terminated the employment of the claimant, counsel argued that the law is cast in iron that the claimant is only entitled to damages not more than the salary for the period of the notice. He placed reliance on the Supreme Court in Shell Petroleum Development Company Ltd. v. Chief Victor Sunday Olanrewaju [2008] LPELR – 3046 (SC); Gabriel Ativie v. Kabel Mental Nig. Limited [2008] LPELR -591 (SC) and also from the cases of Kato v. C.B.N. [1999] 6 NWLR (pt 607) 890 @ 406; Western Nigerian Development Corporation v. Abimbola [1996] 4 NSCC 172; Nigerian Produce Marketing Board v. Adewunmi [1972] 7 NSCC 662. He further submitted that the claimant had already been duly compensated in damages by the payment of one month salary in lieu of notice and that this fact was admitted by the claimant under cross examination.
On issue three, it is the argument of counsel that by the prayer of the claimant for the relief that the Court should make an order that he should not be compelled to make repayment in respect of the loan facilities granted him by the defendant including the chargeable interests that the defendant is entitled to, the claimant is impliedly admitting the facts that there were contracts in respect of loan facilities that he enjoyed from the defendant/counter claimant as an employee, that the defendant/counter claimant has already complied with the terms of the loan agreement by advancing the said loan facilities to him, that he is still indebted to the defendant as he has not fully discharged his obligation to liquidate the loan facilities he enjoyed, that he intends to breach his obligation to repay the loan facility and that he needs the order of this Honourable Court to discharge him from fulfilling his obligations. Counsel submitted that where an agreement or contract neither between parties is not illegal nor contrary to public policy, the Court should enforce the terms of the contract between the parties. Reliance was placed on the decision of Court of Appeal in the case of Chief Yele Oyeneyin & Anor v. Dr. Akinkugbe & Anor (2002) LPELR – 5498 (CA) 28, paras B-G and the case of Obimiami Bricks Stone (Nig) Ltd v. A.C.B (supra) @ pg 313; NIMANTEKS Associates v. Marco Construction Co. Ltd (1991) 2 NWLR (Pt. 174) 411. The Court was urged to enforce the terms of the contract and compel the claimant to honour his obligation to repay the outstanding balance inclusive of all the chargeable interests to the defendant since there is no evidence whatsoever that the (loan) agreement between the parties herein is illegal or against public policy. Also that the evidence of the lone witness of the defendant/counter-claimant, Adeolu Ajulo in paragraphs 21 – 27 of his statement on oath on the 6th of December, 2016, was referred to, the cases of B.O. Lewis v. United Bank For Africa Plc [2016] LPELR – 40661 (SC) @ 25 and DANS Contractors Ltd v. Farehamu D.C. [1956] AC 696 were referred to by Counsel. It is the further submission of counsel is that since parties are bound by their contract, the claimant cannot unilaterally opt out of a contract he voluntarily entered into under the guise that the means of fulfilling such contract have been stopped by the party he is obligated to. See JERIC (Nig) Ltd v. UBN Plc [2000] 15 NWLR (Pt 691) 447; Fashanu v. Adekasa [1974] 6 SC 83.
With regards to the counter-claim of the defendant, it is submitted that as it is by itself a substantive action which must be proved to the satisfaction of the Court for the counter-claimant to be entitled to judgment, the counter-claimant is entitled to the sum of N12,282,567.05 (Twelve Million Two Hundred And Eighty Two Thousand Five Hundred And Sixty Seven Naira Five Kobo) being the debt the defendant to Counter-Claim owes it as at 6th day of December, 2016 and that in urging the Court to grant the counter-claim herein, counsel referred the Court to the Statement of account (Exhibit AA) which was tendered evidencing the indebtedness of the defendant to the counter-claim and also submitted that since same was not disputed by the defendant to the counter-claim, the Court should grant same as the terms of contract between a bank and customer involves obligation on both sides which include repayment of loans and overdraft facilities granted by the Bank. He cited STB Ltd v. Interdrill Nig. Ltd &Anor [2006] LPELR 9848 (CA) and counsel urged the Court to dismiss the claim of the claimants and grant the claim of the counter-claimant.
The Claimant on the other hand filed his final written address on the 14th June 2018, he canvassed three (3) issues for the determination of the Court:
1. Whether regards to the circumstances of this case, the claimant is not entitled to be given an option of resignation instead of unlawful termination of his employment
2. Whether the termination of the employment of the claimant by the defendant without any concrete proof and justification to that effect could be said to be said to be regular in view of the evidence of the parties as adduced before this Honourable Court
3. With regards to the circumstances of this case, whether the defendant/counter claimant can recover the loan granted to the claimant in the course of his employment with the defendant with interest when the employment which the repayment of the loan is attached to has been terminated by the same defendant.
On issue one, Counsel stated that it is on record that the claimant was in active service of the defendant and contributed immensely to the development of the defendant, that it is also on record vide paragraph 18 and 19 of the amended statement of fact and paragraph 18 and 19 of the written statement on oath that the claimant was never involved or implicated in any fraud issue in the course of his duty, that it was as a result of the loan facilities granted to the Ekiti State Mojere Primary School Teachers Cooperative Multipurpose Societies that made the defendant terminate the employment of the claimant based on unproven fact that the claimant was negligent in the process of disbursing the said loans to the beneficiaries and that the claimant did not follow the policy related to the grant and disbursement of the loan which the claimant stated in evidence before this Court that he was not aware of any policy and did not breach any policy. Counsel contended that no concrete evidence was led to the particulars of negligence pleaded in paragraphs 14, 15, 18 and 19 of the statement of defence and counter-claim, that even facts pleaded in paragraph 18 and 19 of the statement of defence of which the defendant intended is taken to be abandoned as that facts are not in existence as no document was tendered to buttress same. Counsel cited Omo-Agege v. Oghojafor [2011] 20 NWLR (Pt. 1234) 341 at 353, pars G-H, Folorunsho Olusanya V. Adebanjo Osineye [2013] 7 NWLR (Pt.1367) 148 at 168, paras B-E, 171, paras D-E. Counsel argued that pleadings cannot be substituted and not tantamount to evidence in support of his pleading, he relied on IBWA V. Imano (Nig) Ltd &Ors [2001] FWLR (Pt. 44) 421 at 443-444, Chief Durosaro v. Ayorinde [2005] All FWLR (Pt, 260) 167 at 180. He continued that Exhibit TT1 is the basis upon which the contract of service in respect of the claimant’s employment with the defendant rest upon, that what the said letter for offer of appointment specified and which is binding on the parties thereto was on resignation of appointment, he contended that there is no place where it has been stated that the employment of the claimant can be terminated by given one month notice or month salary in lieu of notice, he reiterated the position of law that the terms and conditions of contract of employment are the substratum of any case where the issue of wrongful termination of employment calls for determination, he cited the cases of Ifeta V. Shell Petroleum Dev. Co.Ltd [2006] MJSC at pg 133, pars G, Katto V. CBN [1999] 6 NWLR (Pt 607) 390 at 405 Paras D-F, Orient Bank Nig Plc V. Bilante Inter Ltd [1997] 8 NWLR (Pt. 515) at pages 76, pars C-E, he also emphasized that parties are bound by the terms of agreement. Counsel also noted that a community reading of the letter of offer of employment that equally contained the terms of the contract of service between the claimant and the defendant did not state how the employment relationship can be terminated, it merely provided for steps to be taken when the employee intends to resign his appointment with the defendant, he submitted that there is nowhere the option or steps to be taken during the termination of the contract of employment was stated in Exhibit TT1, neither can the defendant imply any other meaning to what was not stated in a clear and precise written agreement, he argued that the Court has the duty to enforce the terms when called upon to do so provided that the said terms are not illegal or contrary to public Policy, he cited, Maryam Isiyaku V. Dr YS Zwingina [2001] FWLR (Pt 72) 2096 ratio 1. He then concluded that the termination of the claimant’s employment by the defendant without having recourse to the terms of the contract of service between them which stipulated for the resignation of employment and not termination is wrong.
As regards issue two, counsel argued that part of the evidence of the claimant which were never denied by the defendant that these loans as granted to the Ekiti State Mojere Primary School Cooperative Multipurpose society by defendant were attached to the respective salaries of the workers so as to make the repayment of the loans easy and possible for deduction without any default, he noted in that it is in evidence that the defendant also approved same, counsel stated that the claimant did not act malafide or unduly negligent by taking step in the best interest of the bank, that he is an employee who had served the defendant meritoriously and had his employment abruptly terminated basically because of the loans granted to the defendant customer was not really performing which is due to no fault of his. He continued that all the facts as stated by the claimant which they were even been corroborated were not denied, but the defendant is only emphasizing that it can terminate the employment of the claimant. He noted that the termination of the claimant’s employment is unlawful based on the fact that the defendant did not have recourse to the contract of service of employment between them coupled with the fact that the allegation of poor performance was never proven or established before this Court, the UMTHMB v. Dawa [2001] 16 NWLR (Pt.789) 424 counsel submitted that the employment of the claimant was shrouded with irregularities and not in line with the provision of the contract of service between the claimant and the defendant, he argued further that once an employer gives a reason for terminating an employee, the burden lies with the employer but not the employee to justify the said reason , that it would be out of International best practices in labour for an employer to terminate an employee’s employment without justifiable reasons, counsel relied on Article 4 of the ILO convention 158 at 1982, Section 254(c) (h) of the 1999 Constitution as amended. With regards to the defendant/ counter-claimant in the case, counsel stated that it is on record that the defendant only tendered the statement of account of the claimant as Exhibit AA but made no reference to the part of the documents which he want this Court to look into , he also reiterated the position of the law that where a party is basing his claim on a specific amount on documentary evidence, burden rests on him to demonstrate before the Court by going through the relevant entries is such documents, how the amount was arrived at. He relied on Alhaji Saidu Yerima Boboau v. NTC Co.ltd. [1956] 5 CA (Pt1) 512. He concluded on the issue and urged the Court to hold that Exhibit AA tendered in bundle without same being specifically linked with evidence on record should be discountenanced. Counsel further argued that assuming without conceding that the defendant complied with the terms of the employment in terminating the employment of the claimant, that Exhibit TT1 Provides for the option of resignation, but not outright termination of the employment.
On issue three, counsel argued that the claimant whilst in the employment of the defendant was granted some loan as staff and employee of the defendant and the loans were attached to attached to the salary of the claimant in this case and the loan charge were being deducted monthly from the salary account of the claimant with the salary account of the claimant with the defendant/counter-claimant. He continued that the termination of the employment of the claimant by the defendant has frustrated the repayment of the loan granted to him, the loan repayment which was attached to salary of the clamant have been frustrated by the reason of termination of his employment. Counsel further argued that assuming without conceding that the claimant is entitled to repay the loan granted to him by the defendant, the claimant would only repay the loan on the interest rate applicable as at the period of time when he was in the service of the defendant and not at the commercial rate as raised but not proved. Counsel continued that the claimant did maintain that the level of his indebtedness as related to the loan granted to him in the course of his employment with the defendant was not up to the amount of money stated before this Court based on the fact that he has made some repayment to the defendant immediately after his employment was terminated. He also contended that the refusal of the defendant to tender these documents as related to the loan granted to the claimant would amount to withholding documents as envisaged and provided for under Section 167(d) of the Evidence Act 2011, Onwujuba V. Obienu [1991] 4 NWLR (Pt. 183) 16. Counsel noted that it is a stated principle of law that since there can be no presumption in claims involving accounts and interest on monetary transaction it must be put in evidence by the claimant or defendant on clear proof and not presentment of chaotic accounting practices. He relied on EIB Building Society Ltd V. Adebayo [2004] FWLR (Pt.193) 223 at 248, , Counsel concluded that the defendant has not proven his case to the extent of the indebtedness of the claimant to it and urged the Court to resolve this issue in favour of the claimant and dismiss the counter claim of the defendant/counter-claimant same having not been proved and established with concrete and cogent evidence.
The defendant filed a Reply on point of law to the Claimant’s Final Written Address on 9th August 2018 in light of the salient issue raised by the claimant and canvassed a sole issue for determination viz:
Whether the Defendant is bound to call all his witness and to tender all documents frontloaded
On the issue raised by the Claimant’s counsel that throughout the proceeding there was no evidence led in support of the facts pleaded in paragraph 14, 15, 18 and 19 of the statement of defence and counter claim, that One Adefunke Oladapo that the Defence Counsel intended to call so as to give evidence in respect of these issues was eventually not called by the defence counsel, Counsel then replied that a party is bound to call specific witnesses if he finds it not absolutely necessary in prove of his case, he cited Ogubjemila v. Ajibade [2010] 11 NWLR (Pt1206) 559 @566 , Musa v. Yerima [1997] 7 NWLR (Pt.511) 27 at 50 paras E, Onowosa v. Odiuzou [1991] 1 NWLR (Pt. 586) 173 to buttress his argument and that for further clarity, that the defence counsel is not under any compulsion to call Adefunke Oladapo as a witness party may change or rescind his decision of calling a particular witness. Furthermore, that the defendant’s decision of tendering the document pleaded in paragraph 18 and 19 of the statement of Defence which the Claimant’s counsel submitted should deemed abandoned is an overt manifestation of a misunderstood concept of an elementary principle of law and should be discountenanced.
After a careful consideration of all the processes filed before this Court, the accompanying documents tendered during trial, the testimonies of parties, I equally watched the demeanor of the witnesses and arguments of learned counsel for both parties, it is my respectful view that the issues that would best determine this case are:
1. Whether or not the claimant has proven his case to be entitled to the reliefs sought?
2. Whether or not the defendant/counter-claimant are entitled to the counter claim?
I will like to say a thing or more before going into the crux of this case. I observed that the claimant did not tender any contract of employment regulating his relationship with the defendant except his letter of employment and confirmation letters. It is noteworthy that both parties relied on the said letter of employment, i.e. exhibit TT in this case. It is equally important to state that neither the claimant nor the defendant tendered claimant’s letter of termination of appointment before this Court, what is before the Court is his reply to the letter of termination. Although it is not in contention that claimant’s employment was terminated by the defendant. It is therefore pertinent to state that this Court will make do with what the parties presented before this Court in arriving at its decision in this case. It is equally observed that the learned claimant’s counsel used the words unconstitutional, illegal, null and void interchangeably. It is germane to state that such words are only appropriately used in an employment with statutory flavor and not in this type of employment which is master/servant.
Now, to the main issue before the Court, it is claimant’s contention that the defendant terminated his employment wrongfully vide a letter dated 16th December, 2015, he thus want the Court declare it unconstitutional, null and void. It is obvious from the facts of this case that the nature of the relationship between the claimant and the defendant is that of a master/servant relationship. In the recent decision of the apex Court in Obanye v. Union Bank of Nigeria Plc [2018] LPELR- 44702SC, the Supreme held amongst other things that “…where the contract of employment itself provides a procedure for the termination of the employment, the procedure as provided must be complied with to effectively bring the employment to an end. An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that is the employee’s only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. Thus, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only”. I have stated earlier in this judgment that the only document that evinces the terms of the contract between the claimant and the defendant in this case is claimant’s letter of offer of appointment which spelt out the terms of employment governing the relationship between the duo, it is therefore imperative for me to reproduce it for ease of reference thus:
“RENUMERATION AND BENEFITS
The Bank’s remuneration structure comprises of the following element
· Guaranteed cash
· Other benefits/Allowance
· Optional Benefits
Please note that these benefits may be replaced, removed or amended from time to time at the Bank’s discretion.
OPTIONAL BENEFITS
Staff loans
Qualified employees are eligible for staff loans at preferential rate. Further details may be obtained from the Relationship Manager, Business Banking
OTHER BENEFITS
The following benefits may also be given at the Bank’s discretion
· Job-related Allowance
· Banking Procedure
JOB RELATED ALLOWANCE
You may be eligible for certain allowance, at the discretion of the Bank, in addition to your basic salary depending on whether the circumstances of your job necessitate such allowance,
BANKING
You may be required to open at least one transaction account to facilitate the payment of your salary. As a staff member, you will also be eligible to certain baking products at discounted rates. A customer consultant at your branch can explain these to you.
GROUP PERSONAL ACCIDENT INSURANCE
Insurance under The Standard Bank group Personal Account Scheme applies to all full-time and part-time employee from the date on which they commence duty Details of the cover provided are available from your HR Manager
The cost of cover under the scheme is borne by the employer
HOURS OF WORK
The normal hours of work are 8;00 to 17;00, Monday to Friday. When reasonably necessary, you may be required to work other or extended hours to ensure the effective performance of your job
RESIGNATION OF APPOINTMENT
Notice period for resignation of employment shall be one Month in writing or alternatively one month salary may be paid in lieu of Notice, Accrued leave in respect of completed colanders month services may be incorporated in the notice period at the discretion and convenience of the Bank
RENUMERATION
Your annual remuneration per annum will be N3,950,000.00 CTC
To qualify for the 13th cheque, you must be in the service of the bank on 31st December, if you have not been employed with the bank for a full year, a portion of the amount may be paid, provided you have worked for at least the last three months of the calendar year
We review remuneration each year and base rewards on superior performance. Our annual remuneration review is 1st March of each year
Your net salary, after deduction for tax, Retirement Funds, medical aid and any other agreed deduction will be paid into your Stanbic Bank account on the 20th day of each month or the first business day thereafter.
COMPULSORY BENEFITS
· Medical Aid membership
· Retirement Find membership
MEDICAL AND MEMBERSHIP
Membership of the approved medical aid scheme of the bank is compulsorily in terms of the current rules of the scheme, unless you submit proof that you are a dependant on your spouse’s or partner’s medical aid. If this situation should change in the future, you must advise the Bank. You will then be required to join the Scheme
The employer contributes 50% while employee contributes 50% toward the Scheme. The employer contribution is part of annual remuneration. When you leave the Bank for whatever reason including retirement, the employer’s contribution to the medical aid scheme end
The Bank reserves the right the change the approved medical aid scheme or the basis of participation
RETIREMENT FUND MEMBERSHIP
Membership under the Pension Reform Act, 2004 is compulsory
Contribution under the Act are made by both the employee and the Bank and are based on pensionable earning. The Bank’s contribution will be 7.5% of Pensionable earnings
Your normal retirement age is 60
(Note: Your contribution i.e. 7.5% of pensionable earnings, to your chosen Pension Fund Administrator will be deducted via the payroll system on a monthly basis.
VACATION LEAVE
You will qualify for 20 working days leave a year, accruing at 1.8 days per month. Your leave cycle is 12 months which operates from the date of joining
At least 15 working days of your leave have to be taken in each leave cycle with a minimum of 10 working days taken in a single period. In line with statutory requirement, the 15 days must be taken by not later than 6 months after the completion the leave cycle. If not taken, it shall be forfeited Vacation leave must be applied for in writing at least one week in advance and the Bank will be entitled to decline leave during specific periods on account of the Bank’s operational requirement
SICK LEAVE
If you are absent from work for more than 2 consecutive days as a result of illness, you must produce a certificate signed by a medical practitioner stating that you were unable to work for the duration of your absence.
In every 3-year cycle, you will qualify for 24 working days paid sick leave in the event that sickness or injury requires you to be absent from work. In your first six months of service you qualify for 1 day’s paid sick leave for every 26 days worked. Any further paid sick leave is discretionary and will only be granted with the written permission of the Bank.
This offer letter constitutes the principal terms of the employment contract between you and the Bank. In your own interests, You should read it carefully, if you have any queries or need help, contact Wale Aina at Aina@stabic,com [underline is mine]
To indicate your acceptance of this offer, please sign the attached copy of this letter, initial each page and return these by Thursday, February 18, 2010 when the offer expires. This offer is subject to satisfactory credit and other reference, certificate or service from previous employer and proof of qualifications”
It is plain in the claimant’s letter of employment, specifically the underlined portion above that his letter of offer constitutes the contract of employment regulating his relationship with the defendant. Claimant’s contention is that he was sent an Invitation letter from the disciplinary Enquiry body of the Defendant to appear before it on the 4th December 2013 in relation to the disbursement of SUBEB/UBEC loans disbursed to staff and workers of the commission, he explained himself to them. Thereafter, the defendant abruptly and wrongfully terminated his employment vide a letter dated 16th December, 2015, titled “Service No Longer Required” terminating his employment. The Defendant argued that either party in the employment relationship has the legal right to terminate the contractual relationship either by the issuance of one (1) month notice in writing or alternatively pay one(1) month salary in lieu of notice to the other party and that the claimant acted outside and in breach of the defendant’s credit policy in the performance of his official duties in respect of management, disbursement and monitoring of the facilities approved by the defendant, hence his employment was terminated. The current position of the law in the world of works is that an employer cannot terminate its relationship with its employee without adducing a valid reason for such termination. See the notorious case on this issue Petroleum and Natural Gas senior Staff Association of Nigeria (PENGASSAN) v. Schlumberger Anadrill Nig. Ltd [2008] 11 NLLR (PT.29) 164, John Holt v. Nzeribe [2018] LPELR- 44943CA; and Olatunbosun v. Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR (part 80) 25. This Court also recognizes that in the banking sector termination of employment of a staff of the bank with immediate effect suggest some kind of wrongdoing on the part of the employee, which the employer must justify. See Andrew Monye v. Ecobank Nig. Plc , an unreported suit No. NICN/LA/06/2010, judgment delivered on 6th October, 2011. The defendant in justifying the reason for terminating claimant’s employment particularized the act of negligence and failure on the part of the claimant to exercise due diligence in the disbursement of the loan to the customers and according to it that act of the claimant exposed it to a credit loss of Five Hundred and Ninety Five Million, Nine Hundred and Twenty Thousand Naira [N595,920,000.00] being the total outstanding indebtedness of the Society on the facility as at 6th November, 2015. The law is on firma terra that at common law there are certain duties imposed on an employee towards his employer, one of which is to take reasonable care and to exercise due diligence in the performance of his duties. See Akinniranye v. Stanbic IBTC Bank & Ors [2014] LPELR-22250CA. In this case the appeal Court held that the negligence of the claimant in disbursing the draft to the customer without following laid down procedure is a misconduct of a serious nature for which the defendant is justified by summarily dismissing claimant in that case. The claimant in this case under cross-examination, stated that he used his initiative to substitute the names of the customers disbursed the approved loans for specific customer to others whose names were not originally in the loan application, he equally admitted that he did not sought for or obtained any approval before acting in that manner. This in my considered view is negligence on his part. He failed to exercise due diligence in the exercise of his duties as a banker/nay a bank manager. I find thus that the defendant have been able to justify the reason for terminating claimant’s employment in this case. I so find and hold.
The law is long settled that parties are bound by the terms of their contract and enforceable, so long as the employer acts within the terms of the employment. See the cases of BPS Construction & Engineering Co. Ltd v. FCDA [2017] LPELR-42516SC; CBN v. Interstella Communication. Ltd & Ors [2017] LPELR-43940.SC. All that the law requires from the claimant is to prove his case by drawing the attention of the Court to how the terms of his contract was breached with credible and cogent evidence. See Union Bank v. Salaudeen [2017] LPELR-43415CA. I have reasoned earlier in this judgment that the only document that stipulated the terms and condition of claimant’s employment is claimant’s letter of employment, i.e. exhibit TT. The relevant part of the contract is the clause on resignation of employment captured supra, which provision is that either party may determine the relationship by giving one month notice or one month salary in lieu of notice. It is the argument of the claimant’s counsel that a community reading of the said letter of employment between the parties does not provide for how the employment of the claimant can be terminated. The defendant on the other hand vide paragraph 4 of the statement of defendant stated that it fully complied with the terms of the contract by giving one month salary in lieu of Notice and that the claimant is estopped from alleging that his disengagement is unlawful. The law is replete with authorities giving right to a master to terminate the employment of his servant in accordance with the terms and condition of employment. It is also a notorious position of the law that where there is no specific provision relating to the termination in the terms of the contract between a master and the servant as alleged by the claimant, will not prevent a master from exercising the right to terminate the contract at common law, See the case of Ansambe V. B.O.N Ltd [2005] 8 NWLR (Pt. 928) 650 CA. I find from the circumstances of this case as well as the clauses contained in exhibit TT that the clause on resignation suffices as a term regulating the determination of their relationship. It has been settled in a long line of authorities one of which is the case of Gabriel Ativie v. Kabelmetal Nig. Ltd [2008] LPELR-591SC, that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end. Claimant admitted under cross examination that he was paid One-Month salary in lieu of Notice. This is in compliance with the terms of the claimant’s employment. It is consequent upon this together with all the reasoning in this judgment that I find no merit in Claimant’s case and thus discountenanced with same.
Regarding claimant’s reliefs B and C, claimant is seeking for a relief to be allowed to resign his employment instead of termination. There is no known law that imposes on the employer the obligation to issue an employee a retirement letter as opposed to a resignation letter, equally there is no law that imposes a duty on the employer in the master servant relationship as in this instance case, to convert an employee’s termination to resignation. All these is at the discretion of the employer. The Court can only interfere with the action of the defendant where it finds in the primacy of each case or the circumstances of a case that the termination is constructive, then the Court may give such an order. I however, find no such a situation in this instance case, I have found supra that the defendant has justify the reason for terminating claimant’s employment, what more? It is not the business of this Court to meddle into the contract between the parties, I cannot import any extraneous terms into their binding agreement. It is on this premise that I find and hold that it does not lie in the power of this Compel in this instance to compel the defendant to convert claimant’s termination into a resignation. Consequently, I hold that the claimant’s claim b and c fail.
On relief d of the Claimant, it is the claimant’s claim that he was granted some loans as a staff and employee of the defendant and these loans were attached to the salary of the claimant in the case and the loan charges were being deducted on a monthly basis from his salary account, that by the terms and condition of service viz:
OPTIONAL BENEFITS
Staff loans
Qualified employees are eligible for staff loans at preferential rate. Further details may be obtained from the Relationship Manager, Business Banking.
He averred further that the loan granted to him has not been liquidated when he was still in the employment of the defendant that the loan repayment has been frustrated by reason of the termination of his employment, he pleaded that the repayment of the loan and the interest rate applicable as at the period of time he was in the service of the defendant should remain same and not at the commercial rate. The Defendant through DW stated that the loans were given to the claimant when he was a confirmed staff of the Bank, learned defence counsel submitted that the Claimant is bound to pay the outstanding balance as his contract of employment and the loan employment are both separate contracts. This is in pari material with the defendant’s counterclaim, hence I will consider this relief together with the defendant’s counterclaim. It is the law as stated supra that he who asserts must prove. The defendant failed to place before this Court the loan agreement to evince the repayment period and the interest rate granted the claimant at the time of the grant of the loan. The defendant in my respectful view has failed to substantiate his claim for the payment of the loan at the interest rate of 21%. Although the claimant has admitted on record and same corroborated by the defendant vide its exhibit AA, i.e. the statement of account of the claimant showing the loan facility repayment. Claimant is not contending with the balance of the loan which according to the defendant is N12, 118,871.99,, the only grouse he has is the rate of interest. I have stated earlier that the defendant has failed to substantiate its claim for the 21% interest. This cannot be awarded without proof, it is in the light of this that I find that claimant is to pay the balance of the staff loan granted him in the sum of N12, 118,871.99 to the defendant at the interest rate 10%. Accordingly, claimant’s relief D succeeds while the defendant counterclaim succeeds to the extent that the defendant is to be paid the sum of N12,118,871.99 at the interest of 10%.
In sum, I find that termination of claimant’s employment is not wrongful, claimant’s case is dismissed. While the defendant’s counterclaim succeeds to the extent that claimant is to pay the outstanding loan of N12,118.871.99 at the interest rate of 10%.
No order as to Cost.
Judgment is entered accordingly
Hon. Justice Oyebiola O. Oyewumi
Judge
