NKEREUWEN D. AKPABIO VS UNION BANL OF NIGERIA PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP:

HON. JUSTICE M. N. ESOWE

DATE: 30^THOCTOBER, 2018

SUIT NO: NICN/UY/20/2016

BETWEEN

NKEREUWEN D. AKPABIO

CLAIMANT

AND

UNION BANL OF NIGERIA PLC

DEFENDANT

REPRESENTATIONS

EMMANUEL ARCHIBONG Esq. with NSAWAJI ADASI Esq

F.A ITESHI Esq. with S.C OHIA Esq., C.D JAMES Esq. for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted vide a Complaint dated and filed 8^th September, 2016. By an amended statement of facts dated and filed 18^th January, 2018, the Claimant seeks the following reliefs:

A DECLARATION by the Court that the Defendant was wrong to breach its agreed contract terms with the Claimant/employee
In view of this breach, the Claimant hereby requests the Defendant to pay all salaries, allowances and other benefits due for 7 unexpired years in his service contract which amounts to 35.7million

Or in the alternative

The Claimant claims the sum of N52.8million being amount due to him on forced withdrawal of service/redundancy.
The sum of N20 Million only as damages for the forced withdrawal of service/employment as well as psychological and emotional trauma leading to great financial stress and also negligence from the Defendant’s actions
A DECLARATION that the Defendant was wrong to debit the Claimant’s loan twice
Refund of N158,998.76 so debited twice and another N4,584.57 part of gratuity entitlement short credited to his account as at the date of exit,
Cost of litigation assessed at N500,000.00 only.

SUMMARY OF FACTS

The Claimant who was employed by the Defendant on June 27^th 1983 had his employment terminated in 2014 vide a letter dated 28^th November, 2014 titled “Withdrawal of Services”. In the said instrument terminating his appointment, his terminal benefit was calculated to be N3,664,583.57 (Three Million Six Hundred and Sixty Four Thousand Five Hundred and Eighty Three Naira Fifty Seven Kobo). With a the sum of N158,998.76 deducted from his terminal benefit as his indebtedness to the Defendant, his balance was placed at N3,505,584.57. Besides the fact that the said N158,998.76 was debited twice from his account, the sum of N3,501,000.00 which represented another shortfall of N4,584.57 was paid into Claimant’s account as his terminal benefit. It is the case of the Claimant that in 1983 when he was employed, he was contracted to work for 35 years or retire on attaining the age of 60 years (whichever came first). However, in 2014 when his employment was terminated, he still had 7 years left to complete before retirement. Besides the fact that Claimant claims he is entitled to the salary of the uncompleted 7 years, he also states that he is entitled to 16 weeks salary of every year he worked as his terminal benefit as provided in the collective agreement between the Association of Senior Staff of Bank and Financial Institution employees and the Defendant.

On their part, Defendant, as can be gleaned from their Statement of Defence dated 13^th December, 2016 and filed 16^th December, 2016 states that the Defendant did not enter any contract with the Claimant to the extent that Claimant must stay in the employment and retire only when he has put in 35years of service or retire on attaining 60years of age (whichever came first). Rather, the employment was master-servant which can be terminated by either party on giving adequate notice. That among the terminal benefit calculated to be N3,664,583.33, Claimant was paid two months’ salary in lieu of notice. The deductions made were N158,988.76 which was Claimant’s indebtedness to the Defendant and the tax deducted from the two months’ salary in lieu of notice thereby leaving the balance at N3,501,000.00 which was paid to the Claimant as terminal benefit. The Defendant, while denying any liability to the Claimant asks the Court to dismiss this case.

COMMENCEMENT OF HEARING

Hearing commenced on 29^th June, 2017 to which the Claimant testified as CW1, adopted his written statement on oath as well as tendered exhibits in support of his case. He was cross examined accordingly. Thereafter, Claimant closed his case on 4^th June, 2018.

The Defence opened their case on the 26^th of June, 2018 by calling one Anthony Nsoro, a Human Resource Officer in the employment of the Defendant, as DW1. He adopted his witness Statement on Oath and was cross examined accordingly. Thereafter, Defendant closed their defence.

The case was thereafter adjourned for filing, exchange and adoption of final written addresses.

DEFENDANTS FINAL WRITTEN ADDRESS.

In Defendant’s final written address dated 17^th September, 2018 and filed 18^th September, 2018, Learned Counsel on behalf of Defendant formulated 3 issues for determination, that is:

Whether the Defendant breached its contract of employment with the Claimant to entitle him to the reliefs sought in this suit.

Whether, in the circumstances of this suit, the collective agreement relied upon by the Claimant could avail him in this case

Whether upon the preponderance of evidence before the Court, the Defendant double debited the account of the Claimant to the sum of N158,958.65 as claimed.

ARGUMENT

ON ISSUE 1: Whether the Defendant breached its contract of employment with the Claimant to entitle him to the reliefs sought in this suit.

Learned Counsel submitted that the relationship between the Claimant and Defendant in the employment is master-servant and as such, the Defendant can dispense with the services of the Claimant with or without reasons. He relied on Union Bank of Nigeria Plc V. Samuel Chinyere (2010) 10NWLR (Pt. 1203) P.453. Furthermore, in Nigerian Romanian Wood Industries Ltd V. J.O Akingbulugbe (2011) 11NWLR (Pt. 1257) P.131 at 148 paras C – G the Court held that in a suit where the Claimant is claiming that his employment was unlawfully terminated, he must prove:

That he is an employee of the Defendant
The terms and condition of his employment
The way and manner and by whom he can be removed
The way and manner the terms and conditions of his employment was breached by his employer.

That it is not the duty of the employer to prove any of the foregoing facts.

It is the submission of Learned Counsel that the Clamant has not proved any of the foregoing. That it is not enough to plead that Claimant is entitled to benefit from the collective agreement but he must prove that his employment was bound by the said collective agreement. The Claimant for reasons best known to him did not tender his employment letter to enable the Court decipher that the collective agreement is binding the contract of the Defendant with the Claimant.

Learned Counsel submitted further that the claim of the Claimant that he is entitled to all his salaries and entitlements until the time he would have retired is a fallacy because there is no evidence on record that the Claimant can of right remain in the employment of the Defendant until retirement.

He therefore urged the Court to hold that Claimant is not entitled to damages in this case

ON ISSUE 2: Whether, in the circumstances of this suit, the collective agreement relied upon by the Claimant could avail him in this case

Learned Counsel submitted that there is nothing before the Court to suggest that the Claimant can benefit from the “Collective Agreement between the Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Employees”. In Union Bank of Nigeria V. Edet (1993) 4NWLR (Pt. 287) P.288, Uwaifo JCA (as he then was) stated that collective agreement, except where they have been incorporated as forming part of the terms of employment, are not intended to give or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest nor are they meant to supplant or even supplement the contract of service.

Learned Counsel also referred Court to Union Bank of Nigeria Plc V. Samuel Chinyere (2010) 10NWLR (Pt.1203) P.453 where the Supreme Court held:

A collective agreement is known to Nigerian laws and has been specifically provided for and contemplated by Section 91 of the Labour Act as an important instrument in regulating relations between relevant employers and workers’ unions. However, a collective agreement cannot, per se, ground a cause a cause of action as it is a gentleman agreement except where it was embodied into the conditions of service. It is an extra legal document completely devoid of sanctions. In the instant case, there is no evidence that exhibit E, the collective agreement, was made part of the conditions of service of employment of the Respondent and binding on the Appellant. To the extent that exhibit E could only by way of incorporation or any other express or implied stipulation be said to be the terms of the contract of service, it remained irrelevant and of o legal consequence.

Flowing from the foregoing, Learned Counsel submitted that Claimant has not established any nexus between the terms of his employment and the collective agreement relied upon.

ON ISSUE 3: Whether upon the preponderance of evidence before the Court, the Defendant double debited the account of the Claimant to the sum of N158,958.65 as claimed.

Learned Counsel submitted that Claimant has not been able to prove that the sum of N158,958.65 as alleged was debited twice from his account.

He therefore urged the Court to dismiss this claim.

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated and filed 26^th September, 2018, Learned Counsel on behalf of Claimant formulated a sole issue for determination, that is:

Whether the Claimant is entitled to the reliefs sought.

ARGUMENT

Learned Counsel submitted that by virtue of Article 5 pages 22 and 23 of Exhibit 10 which is the collective agreement, Claimant is entitled to 16 weeks of his total emolument for each completed year of service as a result of redundancy which the said collective agreement defines as involuntary loss of employment through no fault of the employee. Therefore for the 31 years that the Claimant put into service, he is entitled to the sum of N52.8 million which is the calculation of the salary of the Claimant for 16 weeks of every completed year.

Learned Counsel also submitted that Claimant ought to work till 2021 before retirement and the expected year of retirement having been caught short by the termination letter of November, 2014, Claimant is entitled to be compensated for the loss of the 7 years. That given the circumstances, the early retirement of the Claimant is unlawful, null and void.

Learned Counsel submitted further that Claimant is entitled to the sum of N158,998.76 that was deducted twice from his account and the sum of N20,000,000.00 (Twenty Million Naira) as damages.

He therefore urged the Court to grant the claim of the Claimant.

COURT

Having gone through the Claimant’s Claim, Defendant’s Defence, exhibits tendered before this Honourable Court and final written submissions of both Counsel, this Court, while adopting all the issues raised by both Counsel, has distilled a sole issue for the just determination of this suit, to wit:

Whether the Claimant has proved his case to be entitled to the reliefs sought.

For starters, this Court wishes to state that having adopted all issues formulated by Counsel, it will address such issues when necessary, in the body of this judgment.

That said, the Court will proceed to address the issue distilled above.

The law is trite that civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The Court arrives at this by placing the totality of evidence by both parties on an imaginary scale to determine which side’s evidence is heavier and accordingly preponderates. The party whose evidence is heavier succeeds in the case. See Dr Useni Uwah & Anor V. Dr Edmundson T. Akpabio & Anor (2014) 2MJSC (Pt.11)108 @113.

From the nature of this case, it is obvious that the employment relationship between the Claimant and the Defendant is master-servant. In master-servant employment, the law is well settled that the employer can terminate the appointment of the employee at any time with or without reason. See the Supreme Court decision in Samson Babatunde Olarewaju V. Afribank Nigeria Plc (2001) 13NWLR (Pt.731) 691. Moreso, where it is proved that the employment was terminated wrongly, the Court cannot order reinstatement as the Court cannot foist a willing employee on an unwilling employer. Therefore, in proven cases of unlawful termination of employment in master-servant relationship, the remedy available to the Claimant is in damages and not in having the Court declare the termination null and void or ordering reinstatement. The remedy of having such employment declared null and void and ordering reinstatement is only available in employment with statutory flavour. See Olaniyan V. University of Lagos (1985) 2NWLR (Pt.9) 599; Shitta-bey V. Federal Public Service Commission (1981)1 SC. In this regard, it is wrong for the Claimant herein to entertain the notion that just because he was meant to retire after putting in 35years of service or on attaining 60 years of age (whichever came first), the Court should assume that even after the termination of his employment in 2014, his employment still subsists until seven years later. The Claimant should rather concentrate his effort on the terms of the employment and how the Defendant breached the terms of the employment in the alleged wrongful termination. If the Claimant is able to satisfy the Court that the terms of his employment were breached in the manner and way the Defendant terminated his employment, the Court, whilst unable to order reinstatement given the circumstances, will order/award damages commensurate with the breach of the terms of the contract of employment.

I have carefully gone through the evidence before me. Whereas the Claimant did not deem it fit to tender his employment letter or give any reason whatsoever for his failure to tender his employment letter before this Honourable Court, he however relied on Exhibit C11 which is titled “Collective Agreement between the Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Employees” (hereinafter referred to as the Collective Agreement). This Court wishes to state that long before collective agreements were embodied in Nigerian laws, collective agreement had long been in practice as common law. Nigeria, being a country with a common law jurisdiction has not deviated from the position of the English Court in Pneumatic Tyre Co Ltd V. Selfridge Ltd (1915) A.C and Ford Motor Co Ltd V. Amalgamated Union of Engineering and Foundary Workers (1969) 1 WLR 339 on the unenforceability of collective agreements. Collective agreement, by its very nature, is a gentleman’s agreement which binds the gentleman on his honour. As such, no collective agreement entered by union of employers on one side and union of employees on the other side is enforceable against a particular employer or employee unless it is expressly stated or incorporated in the employment contract between the particular employer and employee. This is more so because for a collective agreement to be binding in any employment, it must be shown that the parties intended to be bound by the terms or provision of the collective agreement. In the event that there is nothing to show that parties intended to be bound by the provision of the collective agreement, the Court cannot enforce it against the employer nor can it be enforced against the employee. This is governed by the overriding principle of the law that the Court respects agreement freely entered by parties and it cannot create a contract or agreement different from the one freely entered by parties. Another overriding principle which governs contract of this nature and makes it unenforceable if it is not expressly stated to be binding is the principle of privity of contract especially given the fact that most, if not all, collective agreements are entered into by workers union and employers union on behalf of the larger workforce and the larger employer of labour. It is therefore not surprising when in Union Bank of Nigeria V. Edet (supra) the Court held:

Collective agreements, except where they have been adopted as forming part of the terms of the employment, are not intended to give or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest nor are they meant to supplant or even supplement their contract of service.

Therefore, in the case herein, except the Claimant is able to prove that the collective agreement, that is Exhibit C11, was adopted or incorporated as part of his contract of service with the Defendant, the Claimant cannot rely on the provision of the said collective agreement nor can they be enforced against the Defendant, and I so hold. Incidentally, the Claimant did not prove by any scintilla of evidence how the collective agreement, Exhibit C11, forms part of his terms of employment or how it was incorporated into his employment to enable him benefit from same.

Nigerian Courts, as Courts of a country with common law jurisdiction have always declined to enforce collective agreement as a matter of course. However, from the combined effect of statute and decided cases, the exceptions to the unenforceability of collective agreements are:

Where the collective agreement has been incorporated into an individual employee’s contract of employment. SeeUnion Bank of Nigeria V. Edet (supra)
Where under the Trade Dispute Act, particularly Section 3(3), the minister orders that a collective agreement or any part thereof be enforceable between employer and employee
Where a party to the collective agreement has already relied on and claimed a right under it. SeeCorporative and Commerce Bank (Nig) Ltd V. Okonkwo (2001) 15NWLR (Pt.735) 114where the Court of Appeal held that having relied on the collective agreement to dismiss the employee, the employer was estopped from urging that the collective agreement was unenforceable.

From the case of the Claimant herein, the Claimant has failed to establish that his case falls under any of the exceptions. As such the Claimant is not entitled to plead or rely on the provisions of the collective agreement, and I so hold.

With regards to the double debit of N158,988.76 (One Hundred and Fifty Eight Thousand Nine Hundred and Eighty Eight Naira Seventy Six Kobo), this Court discovers that from Exhibit C3 which is the statement of account of the Claimant, the Defendant had earlier deducted the sum of N158,988.76 from the account of the Claimant even before paying the sum of N3,501,000.00 into the account of the Claimant as his balance entitlement. Therefore, having earlier deducted the sum N158,988.76 from the account of the Claimant, the Defendant had no business paying the Claimant the sum of N3,501,000.00 but the sum of N3,664,583.33, less tax of 2 months’ salary in lieu of notice, and I so hold.

As a result of the foregoing, the Claimant is entitled to a refund of N158,988.76 which amounts to a double deduction being that the said amount was already debited from his account yet when his balance terminal benefit was paid, same sum was also deducted from the balance paid as his terminal benefit.

With regards to the claim of the Claimant as touching on the sum of N4,564.57 (Four Thousand Five Hundred and Sixty Four Thousand Fifty Seven Kobo) complained by the Claimant as short payment, all that the Court can deduce from the said short fall is that the said amount is what the Defendant stated as the tax on the two months’ salary in lieu of notice.

From all that have been said above, the claim of the Claimant succeeds in part as follows:

CLAIM 1 Fails

CLAIM 2 Fails

CLAIM 3 Fails

CLAM 4 Fails

CLAIM 5 Succeeds

CLAIM 6 Succeeds

CLAIM 7 Succeeds only to the extent that Defendant shall pay the Claimant the sum of N100,000.00 (One Hundred Thousand Naira)as cost.

For the avoidance of doubt, the Court declares/orders as follows:

THE COURT HEREBY DECLARESthat the Defendant was wrong to debit the Claimant’s loan twice
THE COURT HEREBY ORDERSDefendant to refund the sum of N158,988.76 (One Hundred and Fifty Eight Thousand Nine Hundred and Eighty Eight Naira Seventy Six Kobo)debited twice from the account of the Claimant to the Claimant.
THE COURT HEREBY ORDERSthe Defendant to pay Claimant the sum of N100,000.00 (One Hundred Thousand Naira) as cost of litigation.

All judgment sums to be paid within 30 days of this judgment.

Judgment is entered accordingly.

…………………………………

HON. JUSTICE M.N ESOWE