IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATED: 25TH MAY 2017 SUIT NO: NICN/ABJ/253/2012
BETWEEN
MRS. TOMIWA OLUBODE FAYEMI ——- CLAIMANT
AND
ECOBANK PLC ———————— DEFENDANT
REPRESENTATIONS
Rita Nwaokoye, Esq for the Claimant
- C. Ohaegbule Esq with Chiamaka Obiadi For the Defendant.
JUDGEMENT
The claimant brought this suit against the defendants vide a complaint dated the 31STday of August2012 seeking inter alia, the following reliefs;
(a) A Declaration that in consequence of a retable set-off of all accumulated staff contributions, accrued benefits and
disengagement or severance benefits due to the Claimant, from the outstanding indebtedness of the Claimant to the Defendant, the Claimant is in no way indebted to the Defendant in the sum N4.422.944.80 or in any sum at all.
(b) A Declaration that since the share and consumer loan giving rise to the claimant’s alledged indebtedness to the Defendant herein, was granted in consequence of the claimant’s employment, the said loan cannot be validly converted to a
commercial transaction akin to a Banker/Customer relationship.
(C)An Order compelling the Defendant herein to furnish the claimant with a detailed statement of the account giving rise to the alledgedindebtedness of the claimant to the defendant, a detailed statement of account showing all contributions of the claimant, and an account of all other entitlements of the claimant, inclusive but not limited tosalaries up and until the date of disengagement and severance packages or entitlements.
(d) An Order of perpetual Injunction restraining the Defendants
(whether by themselves, agents, servants or privies) from
issuing any criminal complaint against the claimant save in
consequence of the findings of this Honourable Court or in pursuance thereto.
(e) Damages for unlawful withholding of salaries, allowances severance allowances, and entitlements by the Defendants in the sum of N5 million Naira.
SUMARRY OF FACTS
The Claimant is a Banker by Profession, and was at all times
material to this action, an official of the Defendant’s now defunct
Oceanic Bank Plc, kado branch before the merger of the defendants and Oceanic bank Plc.
The Claimant was a staff of the Defendant for upwards of four
years until she was laid off, by the Defendant’s management
presumably in furtherance of their going reorganization.
At the time of terminating the claimant’s appointment in
November 2009, she had already assessed a share and consumer
loan facility packaged for staffers; in the sum of M2 Million
which in accordance with the conventional practice, is expected
to be deducted from the claimant’s monthly salary or such other
entitlements available to the Claimant.
Aside the share and consumer loan, the Claimant was also involved
in the compulsory staff savings scheme, which is an obligation on
every staffer of the Defendant.
Upon the termination of the Claimant by the Defendant, nosalary, severance allowance or benefits in lieu of termination, waspaid to the Claimant, and notwithstanding the foregoing, theDefendant without notice to the Claimant consequently convertedthe share and consumer loan facility granted to her, to a
commercial loan, and began to charge thereon, mind bogglinginterest regimes, never contemplated by the facility granted tostaffers of the Defendant.
On learning that the claimant had secured, another job with a sister financial organization, the Defendant to the shock anddismay of the claimant, wrote to the Claimant’s new employers,Aso savings and loans, to inform them the Claimant was indebtedto them in a collossal sum of N4,42 2,994.80.
The claimant came under intense pressures from her Employerswho strongly advised her to reach a compromise with theDefendant.
On the receipt of her Employers letter, the Claimant betweenFebruary 2010 and June 2012 wrote several truce letters to theDefendant wherein she asked for details of her contributions anddetailed statement of account from the Defendant, which the defendant failed to produce.
To orchestrate a misunderstanding with the Claimant’s employers,the agents of the Defendant, despite refusing to furnish theinformation and documents requested by the Claimant, continuallypressurized the Claimant’s employers, into compelling her to settle the alleged indebtedness to the Defendant.
The Claimant averred that she is in no way indebted to theDefendant in the sum of N4.4 million claimed, because a set off of all her entitlements, would show and expose the Defendant’sindebtedness to her, and not conversely.
DEFENCE
In their amended statement of defence, the defendant held the view that the Claimant’s employment was terminated consequentupon facing the disciplinary committee of the Defendant for wrongfulconduct.
He stated that the Claimant accessed a consumer” and share loan at the concessionary
rate of 18% and 5% respectively.
As at the time the Claimant’s employment was terminated, her total indebtedness to the Defendant which comprises her outstanding loan indebtedness and all the sums she had been paid and which she had not earned was N4, 154, 486.65(Four Million One Hundred and Fifty Four Thousand, Four Hundred and Eighty Six Naira sixty Five Kobo.
They averred that the claimant’s total entitlements which she earned inclusive of one month’s payment in lieu of notice as at November2009 when her employment was terminated was N841,680.96 (Eight Hundred and Forty One Thousand, Six Hundred and Eighty Naira Ninety Six Kobo) and that the Claimant’s total net indebtedness as at the
time of termination of her employment was N3,312,805.69 (Three Million
Three Hundred and Twelve Thousand, Eight Hundred and Five Naira Sixty
Nine Naira)
The Defendant stated that the Claimant was paid her one month salary in lieu of notice. All other entitlements which the Claimant did not earn were netted off her total indebtedness to the Defendant. The Defendant shall during trial rely on the comprehensive ex – staff account of the Claimant.
They averred further that the sum the Claimant was entitled to under the staff Savings Investment Trust Fund is N912, 000.00 (Nine Hundred andTwelve Thousand Naira). And that the Claimant is only entitled to the Staff Savings InvestmentTrust Fund (SSITF) being her contribution which was deducted from hersalaries but the Defendant is not entitled to the Staff Savings Investment
Trust Fund in this suit based on the fact that staff of the Defendant had already filed an action prior to this suit at the National Industrial CourtLagos Division wherein they claim in a class action for their entitlementsunder the Staff Savings Investment Trust Fund (SSITF) and the Claimant being a former staff of the Defendant as at 2005 to 2009 is amongst the Claimants in the suit who is claiming for their entitlements and cannot be said to be entitled to same under this suit.
The Defendant statedthat the Claimant had an unrestricted access to her statement of account and did not need the Defendant to furnish her with same and that the Claimant is owing the Defendant the sum of N5,495,825.99 (Five Million Four Hundred and Ninety Five ThousandEight Hundred and Twenty Five Naira Ninety Nine Kobo) as at the 31st of December 2012.
trial- documents tendered and evidence led
Trial commenced before this Courton Wednesday March 27, 2013.
The Claimant testified for herself as the sole witness and was fully cross-examined by the Defendant and re-examined by her Counsel.
In the course of presenting her case, the Claimant tendered the following documents which were admitted as exhibits, to wit:-
| Documents tendered | Exhibit | |
| 1 | Claimant’s statement on oath filed on August 31,2012 | |
| 2 | Letter dated 4/2/10 titled re-termination of appointment signed by OlubodeOluwatomiwa Eunice and addressed to Head, performance and reward management oceanic Bank | A |
| 3 | Letter dated June 22, 2012 titled re-termination of appointment signed byFayemiOluwatomiwa Eunice (nee Olubode) and addressed to the Managing Director Ecobank Plc Victoria Island Lagos | A1 |
| 4 | Copy of letter on Oceanic Bank Plc letter head dated 24th November 2009 titled termination of appointment and signed by Victor Banjo and addressed to PW1 | B |
The Claimant closed her case on Monday June 10, 2013 and was accordingly discharged.
The Defendant through NaafiaIdowuAdebolaas its sole witness, tendered the following exhibits;
| 1 | Documents tendered | |
| 2 | Copy of termination of appointment dated November 24, 2009, signed by Victor Banjo and addressed to Oluwatomiwa Eunice Olubode | B |
| 3 | Minutes of disciplinary committee meeting of November 4, 2009 | B1 |
| 4 | Certified true copy of originating process in Uzomaihediohoma and Ors Vs Ecobank Nigeria company in the NICN Lagos | B2 |
| 5 | Ecobank Nigeria limited statement of account of Olubodeoluwamiwa Eunice from January 1, 2009 to 16/1/2014. | B3 |
| 6 | Claimant’s statement of account No 0005368212 (old account number 0011401014346) for the month November 2005- N11/11/15 | C1 |
| 7 | Claimant statement of account in account No 0005368298 (old account nos 0010101015866) for the period 21/11/2008 to 11/11/2015 | C2 |
| 8 | Claimant’s statement of account No 00048195387 (old account no 0012101034381) for the period 12/1/2009 to 11/11/2015 | C3 |
DEFENDANT’S FINAL WRITTEN ADDRESS
in their final address, learned counsel to the Defendant, submitted a lone issue for determination, to wit;
“Whether by the Evidence led by the Claimant’s sole witness in this matter, the Claimant has discharged the burden of proof and therefore entitled to any of the claims endorsed in the General Form of Complaint”
In addressing this court on the sole issue raised, the Defendantconsidered the following sub issues:
(i) Whether or not the Claimant can by way this Form of General Complaint and Statement of Facts commence an action for set off as a Claimant without pleading and leading evidence on material facts that will entitle her to the grant of same.
(ii) Whether or not the Claimant has led sufficient evidence to entitle her to the grant of Reliefs 1 and 3
(iii) Whether or not the Claimant has led sufficient evidence to entitle her to the grant of Reliefs 2
(iv) Whether or not an admission by the Defendant will in any way relieve the Claimant from the onus placed on her of proving her claim for declaratory reliefs and or ancillary reliefs.
ON sub issue 1
Learned counsel submitted that the Claimant cannot by way of a General Form of Complaint as a Claimant seek an Order for set off by the Court. He submits that the right to set off is a remedy available in law to a Defendant and not a Claimant. He referred this court to the case of General Tyres W.A. Ltd. v. Spring Bank Pic. (2O10) LPELR-9067(CA)where it was held that :
“Set off and Counter-claim are recognized defences that avail a Defendant in a civil proceeding and no party should be precluded from taking advantage of these defences in their cases which may go for trial on the merits. “Per AGBO, J.C.A.(P. 27, paras. D-E)
He argued that as a defence, the relief of set-off is available only
as a shield and not as a sword. The Claimant in this case haspleadedand sought the relief of set-off not as a defence or shield but as a Claimant or a sword and submitted that this does not avail the Claimant. He urged the Court to so hold and to also holdthat the Claimant is not a Defendant in this Suit and cannot seek relief
by way of set off.
He submitted that the onus is on the Claimant, not just to plead the materialparticulars of the facts and circumstance of the q’uantum ofindebtedness over which he raises the defence of set off but must leadevidence to establish with material particular, the basis of the defence ofset-off.
He submitted that to succeed in a defence of set off, the party so claiming must set before the Court clear figures which it claimsis due to him from the other party. In the case at hand, the Claimant hasfailed to so do. He restated that the onus is on he whowill fail if not facts are pleaded and if no evidence is led on any factpleaded. The Claimant brought this suit and the onus is on her to provethe clear figures which it claims is due to her from the Defendant. If theClaimant fails to prove, then her failure is fatal to thesuccess of her case. He reffered this court to the case of unity bank plc v abiola(2008) vol42 WRN 112 AT 139,where the Court held that it
“Facts giving rise to the debt of claim sought to be set-off are such materials facts and should have been fully pleaded by the appellant in the statement of defence. The evidence of DW1 on the issue of the amount of the loan not being challenged by the respondent’s counsel on cross-examination does not derogate from the trite principle of law that all material/acts must be pleaded and the particulars of the loan advanced to the respondent being such material fact ought to have been and was not pleaded. It is hardly the duty of the respondent to help the appellant put its house in order. Issue No.l must therefore be and is hereby resolved in favour of the respondent.” Per Alagoa, JCA
5.6. It is the submission of Learned counsel that the Claimant has not placed any evidence before this Honourable Court to entitle her to a “A Declaration that in consequence of a retable set off of all accumulated staffcontributions, accrued benefits and disengagement entitlements or benefits due from the Defendant to the Claimant, from the alleged outstandingindebtedness of the claimant to the Defendants, the Claimant is in no way indebted to the Defendant in sum of N4, 422, 94.80 or in any sum at all.”
He argued that there is no evidence of what the Claimant’s termed “accumulated staff contributions, accrued benefits and disengagement entitlement’ comes to in terms of figures, no evidence on how same can be calculated and from which liquidated debt due payable to thedefendant has the Claimant sought the defence of set-off. This Court cannot be called upon to fill in this vital material facts, the Court does not have sufficient facts backed by evidence upon which it can make findings relevant to the defence of set-off. He urged the Court to so hold.
To counsel, the Evidence Act provides for modes by which a Claimant may obtain documents which he may require to prove his case in the course of a Trial; to wit: Interrogatories, Discovery of Documents including the Notices to Produce. It is our submission that the Claimant has notpleaded or tendered any document which should entitle him to the Reliefs sought.
Learned counsel submitted that all through the course of trial, the Claimant did not lead any evidence to contradict the entries in the tendered Statements of Account or to show that any entry made was contrary to any Loan Agreement.
He contended that when considered together, Exhibits B, Cl, C2 and C3, has shown the debt due from the Claimant to the Defendant as at September 30, 2011 in the sum of (Three Million, Three Hundred and Seventy Five Thousand, Seven Hundred Naira and Eighty Seven Kobo) He submitted that with the agreement of Parties that the loan is liable to interest charges, the said debt sum had risen to 15, 495, 825. 99 (Five Million, Four Hundred and Ninety Five Thousand, Eight Hundred and Twenty Five Naira, Ninety Nine Kobo) as at December 31, 2012 and that a set-off cannot yield a judgment in favourof a Party that raises same since set-off is only a defence and not ashield. He reffered the court to the case of first bank of nigeria, plc V. I.A.S. cargoairlines nigeria ltd (2011) LPELR-9827(CA) wherethe Court held on theeffect of a successful claim for set-off, as follows:
“Ordinarily, thefundamental effect of a successful set-off is to reduce the plaintiffs claim
by the cross-claim. Judgment is therefore entered for the plaintiff for the
amount by which his claim exceeds the set-off. A set-off cannot result in
judgment for the defendant or the difference between the set-off
and the claim where the former overtops the latter. In that case, the
defendants only viable option is to file a cross-action or a counter
claim. “Per Saulawa, J.C.A. (P. 26, Paras. D-F)
He urged this Court to hold that the Claimant has not made any monetary claim against the Defendant; the Claimant has also not established any monetary claim due to it from the Defendant. In such a case, there can be no application or order for set off or order arising from a set off.
ON sub issue II
Learned counsel submits that by Exhibit B there is evidence before this Honourable Court with respect to what the Claimant’s entitlement is. The Defendant has also by Exhibits C, Cl, C2 and C3 tendered before this Honourable Court documents showing “a detailed statement of the account giving rise to the alleged indebtedness of the Claimant to the Defendant, a detailed statement of account showing all contributions of the Claimant, and an account of all other entitlements of the Claimant from the Defendant inclusive but not limited to salaries up and until the date of disengagement and severance packages of entitlements.”
He however submitted that the Defendant had prior to the commencement of this action, satisfied any requirement to “furnish the claimant with a detailed statement of the account giving rise to the alleged indebtedness of the claimant to the Defendant, a detailed statement of account showing all contributions of the claimant, and an account of all other entitlements of the claimant from the Defendant inclusive but not limited to salaries up and until the dateofdisengagement and severance packages of entitlements”
In the circumstances, it is therefore the duty of the Claimant who seeks toestablish a contrary position to lead evidence that this Court may placeon the imaginary scale of justice. It is for the Claimant to show reasons why she considers the Defendant’s calculations to be in error ( and the amount which she believes the Defendant owes it, before the a set off of its entitlements the sum of N3, 375, 787 (Three Million, Three Hundred and Seventy Five Thousand, Seven Hundred Naira and Eighty Seven Kobo) he however reiterated that as at September 30, 2011as proved by evidence that the sum of N3, 375, 787 had risen to N5, 495, 825. 99 (Five Million, Four Hundred and Ninety Five Thousand, Eight Hundred and Twenty Five Naira, Ninety Nine Kobo) as at December 31, 2012).
He submitted that the Claimant has failed to provide any documentation showing any accrued benefits or disengagement entitlements in a calculation contrary to the contents of Exhibit B, C, Cl, C2 and C3, that the Claimant has admitted its
indebtedness in part to the Defendant, and urged the Court to so hold.
ON sub issue III
Learned counsel submits that the Defendant is a Commercial Bank
in Nigeria andis therefore regulated by the Central Bank of Nigeria andgoverned by the Banking and Other Financial Institutions Act (BOFIA)and other such similar legislation.
He argued that the primary function of a Commercial
Bank is to carry out “banking business” as defined in Part III,Miscellaneous and Supplement of the BOFIA, thus:
“banking business” means the business of receiving deposits on current accounts, savings account or other similar account, paying or collecting cheques, drawn by or paid in by customers; provision of finance or such other business as the Governor may, by order published in the Gazette, designate as banking business”
It therefore goes without saying that a loan granted by the Defendant Bank to any third party can only be granted in the course of a Banker- Customer relationship. The relationship is no less what it is because there also exist an employer-employee relationship between the Parties. The fact that the Loan Terms may have been moderated or cushioned by the subsisting employee-employer arrangement does not derogate from the fact that it remains a banker- customer relationship, He urged this Court to so hold. He reffered the court toowena mass transportation company ltd V. enterprises bank LTD(2O14) lpelr- 22100(CA) where it was held that:
It is also the submission of Learned counsel, that like every other agreement, Parties may contract at an interest rate that would guide their transaction and general relationship. Albeit, the Defendant being a commercial Bankregulated by CBN, its interest rates may vary from time to time More so, The Claimant has not placed any agreement showing the Terms of the Consumer and Share loans or any applicable interest rates outside normal banking rates which are regulated by the CBN, and the Claimant was aware of the Banker Customer relationship existing between the Claimant and the Defendant upon the grant of the Consumer and Share Loans. He urged the Court to so hold.
ON SUB ISSUE III
Learned counsel submitted that from the facts of the case at hand, and the evidence led, the Claimant did not plead any facts in relation to any fund held by Trustees or any specific amount either. The Claimant has therefore not discharged the burden placed on it in proving his claim.
More importantly, the Defendant has placed before this HonorableCourt Exhibit B2 which Exhibit shows that the staff contributions held by the Trustees of the Bank (who have a distinct and separate legalpersonality)is currently a subject of class action in Suit No:NICN/LA/231/2012 which matter is ongoing and yet to be decided upon. He referred the court to the case of ubaV. ETIABA&ORS(2008) LPELR-5039(CA)where the ruled on The function of the Court where a matter is lispendis
ON sub issue IV
Learned counsel submitted that the Court lacks the power to grant such relief as the power to issue criminal complaints or institute criminal proceedings is constitutional and lies with the Attorney-General of the Federation or of a State, as the case may be by virtue of Sections 174 and 211 of the 1999 Constitution (as amended).
He commended the case of azuhV. UBNPLC, (2014) LPELR-22913(Sc) to this court and urgedthis court to so hold.
Further, the right to make a Complaint before a Police or Security Officer in respect of any allegation of criminal wrong done, is an inherent right, indeed, a public duty of every Nigerian Citizen, moreover, this Honorable Court has a duty to protect compliance with public duty by citizen.
Learned counsel submitted that it is the right of any litigant to seek redress in the Court of law for any wrong done to it. The court cannot in anticipation or by the cajoling of the Claimant be led to give an order which it has been limited from doing. Specifically, the Plaintiff did not plead any allegation connected to any quasi criminal proceedings, nor has an order in that regard been sought or granted to warrant him seeking “An order of perpetual Injunction restraining the Defendants (whether by themselves, agents, servants or privies) from issuing any criminal complaint against the claimant save in consequence of the finding or Order of this Honourable Court.”
Learned counsel also submitted that Relief 5 should fail in view of the failure of Reliefs 1, 2, 3 sought by the Plaintiff. Conclusively, and In the light of the foregoing, He urged the Court to dismiss the case of the Claimant with substantial costs.
COURT
This court has gone through the case of both parties and has distilled a lone issue for the just determination of this case, to wit:-
“Whether the claims of the claimant succeeds”
In other to come to a just determination of the issue distilled above, recourse needs to be had at the facts pleaded before this court and the evidence tendered in support of such facts.
It was the contention of the claimant that when her appointment/employment with the defendant was terminated vide exhibit B she was not paid her severance packages and other entitlements as a result of her indebtedness to the defendant, which entitlements was used to settle. She however claimed that the amount stated by the defendant as the outstanding balance payable by the claimant as per the debt owed the defendant is not correct as a set off of her entitlements should reduce the debt further.
On their part, the defendant contended that the interest rate of the consumer share loan facility assessed by the claimant is 18% and 5% respectively and that the net total of the debt of the claimant as at September 30th 2011 is N3.375,700.87k and that with the agreement of parties that the loan is liable to interest charges, the said debt sum had risen to N5,495,825.99. This amount is calculated after the unpaid entitlements of the claimant have been deducted from the loan.
However, exhibit B, shows what the claimant is entitled to, whereas exhibits C, C1, C2 and C3 are documents showing a detailed statement of account, giving rise to the alleged indebtedness of the claimant.
A careful perusal of the documents mentioned above shows that the entitlements of the claimant was deducted from her debts And I so hold.
The defendant stated that by the loan agreement, entered into by the parties, the loan facility granted to the claimant comes with an interest rate of 18% and 5% respectively. The claimant did not do anything to disprove this fact, nor lead any evidence that contradicts same.
The claimant failed to show reasons why she considers the defendants calculations to be in error neither did they provide any documentation showing any accrued benefits or entitlements in a calculation contrary to the contents of exhibit B, C,C1,C2 and C3.
Consequently, and for all the reasons given above, the judgment of this court is as follows:-
1) Claim A fails.
2) Claim B succeeds.
3) Claim C succeeds.
4) Claim D fails.
5) Claim E fails.
Judgement is entered accordingly.
……………………………….
HON. JUSTICE M. N. ESOWE
