ONYENUCHEYA NKEIRU CHUDI -VS- UNITED BANK FOR AFRICA PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 17^th day of October, 2019 SUIT NO: NICN/PHC/39/2013

BETWEEN

ONYENUCHEYA NKEIRU CHUDI CLAIMANT

AND

UNITED BANK FOR AFRICA PLC DEFENDANT

Representations:

C.C. Achunuolo for the Claimant.

I. Osikoya for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 17^th of April, 2013 along with an affidavit of verification, statement of claim, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.

The suit was originally before Hon Justice F.I. Kola-Olalere and later transferred to Hon Justice J.T. Agbadu-Fishim before it was assigned to this court sometime in February, 2019.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

(i) A declaration that her dismissal from the employment of the defendant is wrongful and the claimant is entitled to payment of balance of her salaries for March, April, May, June, and her full salaries for the months of July and August, 2011 and her outstanding contributions to the Staff Pension Fund Scheme.

(ii) A Declaration that the claimant’s employment with the defendant effectively came to an end on July 26, 2011 when the claimant tendered her letter of resignation; therefore, the defendant’s letter of dismissal dated July 12, 2011 and delivered to the claimant on August 11,2011 is ineffectual, null and void and of no effect whatsoever.

(iii) Order of court directing the defendant to pay the claimant the balance of her salaries for March, April, May and June, 2011.

(iv) A declaration that the loan granted to the claimant by the defendant while the claimant was in the employment of the defendant was not in the nature of a commercial loan.

(v) A declaration that the defendant is in breach of the Service Agreement dated 30th March, 2004.

(vi) N900,000.00 damages against the defendant being for breach of the claimant’s service agreement.

In reaction to the claims, the Defendant entered conditional appearance on the 7^th of May, 2013 and filed a statement of defence and counter claim on the 31^st of October, 2013 along with list of witnesses, witness statement on oath, list of documents and copies of the listed documents.

The Defendant on the 22^nd of June, 2016 filed an amended copy of the said statement of defence and counter Claim along with an amended statement of defence.

Consequently, the Claimant on the 26^th of August, 2016 filed an amended reply to the amended statement of defence along with a defence to the Counter-claim.

Trial commenced before this court on the 15^th of March 2019 with the Claimant opening her case. The Claimant herself was the sole witness as CW1 and she adopted her witness statements on oath marked as C1 (a) and C1 (b). Through CW1, 9 documents were tendered in evidence and admitted as Exhibits C2 – C9. Exhibit C8 and C10 were however admitted under protest.

Arising from the statement of claim and witness statements on oath, the case of the Claimant is that at the completion of her NYSC service in 2001, the defendant retained her as a contract staff and sometime in 2003, the defendant converted her employment to that of a full staff. Claimant further avers that she worked diligently and she rose quickly to become the defendant’s Branch Operations Manager at her Umuaka branch in Njaba Local Government Area of Imo State in the year 2009. Claimant avers that sometime in January 2011, some amount of money in the sum of N421 ,000.00 meant for withholding tax and value added tax (VAT) were sent to the defendant’s said Umuaka branch via the defendant’s transit account, which must be nailed off on daily basis according to the defendant’s banking policy and practice. She averred that the payment of the money required Tax payer’s Identification Number (TIN) to be sent to her branch but same did not come as promised by her Manager and it led her to warehouse the money in one of her children’s account pending when the TIN would be supplied. She added that On 3^rd of March 2011 another sum of N203,000.00 was also received for tax but it also did not come with TIN and she had to warehouse the money as the earlier one. Claimant averred that as the control team were reviewing the branch expenses, they discovered the transaction and escalated same and the claimant was asked to proceed on suspension immediately for alleged diversion and conversion. Claimant posited that she was eventually dismissed even though her Manager was aware of the situation and she was not given the opportunity to explain herself and the defendant ignored the provisions of the Service Agreement guiding her relationship with the defendant in terminating her employment. She posited that from January 2011, her monthly salary was N411,000.00 but in April, May and June, 2011 the defendant paid her only N205,500.00, N205,500.00 and N50,000.00, respectively and never paid her any further salary until she received a letter dated 12/7/2011 dismissing her from the defendant’s employment. She also contended that her dismissal was ineffectual as she had written a letter of resignation delivered on July 26, 2011 before receiving the letter of dismissal on the 11/8/2011. She also posited that she wrote a letter of apology on the advice of a friend. Claimant further stated that while she was in the employment of the defendant she borrowed the sum of N2,000,000.00 and Ni ,000,000.00 respectively at different dates in January 2009 from the defendant which was granted to her as a privilege for being a staff of the defendant and as at the time of her dismissal she was yet to pay back N600,000 which the Defendant had dropped into her salary account and started charging her huge sums of money as interest on the loans which was not contemplated when the loan was granted to her.

Upon cross examination of CW1, she posited that she was Branch Operations Manager when she left the bank and was so for 3 years before dismissal. She posited that she was answerable to Area Operations Manager but he does not direct her daily on what to do. She added that when she became the Branch Operations Manager, she supervises other tellers and Fund transfers. She admitted that sometime in August 2004, she received a caution over shortage of N86,780.00 though the shortage was not incurred by her. She posited that she cannot remember being issued a letter of displeasure. She admitted she had email conversation with the branch that sent the money and confirmed the sum of monies sent were N450,275.98 and N203,950.00. she also admitted that the money was put in her daughter’s account and she knows that the sum cannot be paid into such account but she did it with reason. She admitted that the bank had an internal account for such fund but that she was stopped from using same. She also admitted that she was not stopped from using the account but was told not to use it without authorization. She also stated that the manager did not know the money was going to her daughter’s account and that he was not aware she made withdrawal from the funds after paying it into her daughter’s account. She also admitted that she withdrew the funds with the intention to pay back after she gets her cheque but she did not do so after getting the cheque. She posited that she responded to some of the memo/mails she received on 8/3/2011 asking her to justify why the money went to her daughter’s account. She stated that she had no salary to complete the pay back of the loan before she was suspended and that she received half salaries after she was suspended. She admitted that she was invited for a meeting with disciplinary committee and she was asked to report to the bank every two weeks during her suspension.

Upon discharge of CW1, Claimant closed her case while the Defendant opened theirs by calling one witnesses in person of Oluyomi Emmanuel as DW1 who adopted his witness statement on oath which was marked as D1. Through DW1, 14 documents were tendered and admitted in evidence as Exhibits D2 – D15, while Exhibits D4, D6, D7, D10 and D14 were admitted under protest.

Arising from the amended statement of defence and witness statements on oath, the case for the Defendant is that while the Claimant was the employee of the defendant, Claimant has had series of disciplinary sanctions imposed on her, because of her negligence, failure to perform assigned task and improper performance of her duty and on the 19^th of January 2011 and 4^th of March 2011 respectively, the Claimant diverted to her private/personal account the sum of N450, 275.98 (Four Hundred and Fifty Thousand, Two Hundred and Seventy Five Naira, Ninety Eight Kobo) and N203, 095.00 (Two Hundred and Three Thousand, and Ninety Five Naira) respectively which were funds transferred to her branch for payment of Withholding Tax (WHT) and Value Added Tax (VAT) and made withdrawals from the said monies. The Defendant added that the Claimant is well aware that it is against Banking policy for a staff to credit his/her personal account for whatever reasons with funds meant for a customer or the payment of Withholding Tax or VAT and to proceed further to make personal and unauthorized withdrawals from the said funds. The Defendant posited that it is not true that upon discovery of the act, the Claimant was immediately sent on suspension for alleged diversion and conversion but that the discovery of the unauthorized funds transfer of 4th March 2011 prompted a further inquiry by the Bank which revealed that a similar act had earlier taken place in January 2011 and that the Claimant had already started making series of withdrawals from the said funds for personal use. The defendant added that the Claimant was then suspended to allow for unimpeded investigation and was sent queries by mail and the final outcome of the investigation was communicated to her. The defendant further averred that the Claimant’s dismissal was in line with the bank’s disciplinary policy as contained in the Group H. R Disciplinary Process and Sanctions Policy No. H.R 002 of June 2010, and further that by the said policy, staff shall be placed on suspension in cases of suspected misapplication, misappropriation, conversion, insubordination etc. to allow for unimpeded investigation of any allegation. The Defendant also posited that in line with the Bank’s H.R Disciplinary Process and Sanctions Policy No. H.R. 002 of June 2010, where a staff is on suspension as a result of ongoing investigation, such a staff will be placed on 50% pay for the first three months and zero pay for subsequent months if the case is not fully decided at the end of the three months period and where he/she is completely exonerated, the suspension is withdrawn and such a staff is reimbursed his/her withheld salaries. However, if on conclusion of investigations, the staff is eventually dismissed (as in the case of the Claimant) such a staff will forfeit all accrued Salaries/benefits. The Defendant also posited that the Claimant’s dismissal was duly communicated to her through her Business office on 12^th of July, 2011. The Defendant concluded that the claims of the Claimant is misconceived, frivolous, vexatious, malicious and an abuse of the Court process which should be dismissed with substantial costs.

Upon cross examination, DW1 posited that the defendant has a counter claim of N1.3million arising from the loan which was over N700,000 at the time of Claimant’s exit. He posited that the loan is a staff loan and there was no security for it. He added that her employment was terminated in 2011 and payment stopped around then. He acknowledged from exh.D14 that the net indebtedness of the Claimant as at July 2011 stood at N749,000 and posited that it is not correct that she has paid the money. He stated that as at 2013, the money became N1.3million due to accrued interest as the loan became a commercial loan upon her ceasing to be a staff of the Defendant. he also stated that the commercial rate applied was 19% and added that an offer letter which contains a default rate at 31% also existed. He posited that the Claimant was issued Exh.D3 because she incurred cash shortage of N86,000. He posited that the money for which the Claimant was dismissed was for withholding tax and VAT and ought to ideally come with TIN but even if it did not come with TIN, she had no right to tamper with the tax money. He posited that the account wherein she warehoused the money was her daughter’s account and had other accounts to pay the money into but she failed to do so.

Upon the discharge of DW1, the Defendant closed their case and matter was adjourned for adoption of final addresses.

The Claimant first filed a final written address on the 16^th of July, 2019 while the Defendant filed on the 17^th of July 2019. Subsequently, the Claimant filed another final address on the 24^th of July, 2019 while the Defendant also filed another on the 23^rd of August, 2019.

Upon the matter coming up for adoption, counsel to the Defendant, O.I. Oshikoya Esq. adopted the address filed on the 23^rd of August, 2019 and withdrew that filed on the 17^th of July, 2019.

Counsel to the Claimant, C.C. Achunulo Esq. on the other hand adopted the written address filed on the 24^th of July, 2019 and is consequently considered to have abandoned that which was filed on 16^th of July 2019.

Arising from the said final address of the Defendant filed on the 23^rd of August, 2019, counsel to the Defendant, O.I. Oshikoya Esq. formulated four issues for determination to wit:

Whether the Claimant’s appointment with the Defendant was terminated in accordance with the principle of fair hearing, service contract and the Defendant’s disciplinary policies.
Whether the Claimant’s letter of resignation dated 20^th July, 2011 is effectual, effective in the circumstances of this case considering the provisions of her terms of agreement.
Whether the Claimant has proved her case as required by law to warrant the grant of the reliefs sought in her writ of summons and statement of claim by this Honorable Court.
Whether the Defendant/Counter Claimant has proved its Counter Claim as required by law to warrant the grant of the reliefs sought via its Counter Claim.

In arguing issue one, counsel contended that although the Claimant posited that she was not queried by the Defendant which could have afforded her the opportunity of defending herself, but during cross examination, she stated that she responded to some memo and emails asking her to justify why the money went to your daughter’s account. Counsel contended that it is crystal clear that the Claimant was issued queries and she indeed answered the queries sent to her via memo and emails.

Counsel added that it also in evidence as established in exhibit D6, D8 and exhibit D9, that the Claimant was given ample opportunity to defend herself. He posited that the Claimant in exhibit D8 admitted to have diverted and converted the said funds for her personal use and it was on the basis of her admission that the Defendant found her guilty of gross misconducts.

Counsel submitted that it is trite law that fair hearing is the opportunity to be heard and where an employee is issued queries or invited to face disciplinary penal before his dismissal from employment, such employee cannot complain of lack of fair hearing. He cited the case of IMONIKE V. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 AT 649.

With regards to whether the Claimant’s appointment was terminated in accordance with her contract of service and the Defendant’s Disciplinary Policies, counsel posited that the Claimant’s employment with the Defendant was not only governed by the Service Agreement but Exhibit D10 (i.e. the Group HR Disciplinary Process and Sanctions Policy) and Exhibit 15 (Defendant’s Staff Handbook). He also submitted that the dismissal of the Claimant was done in accordance with her terms and conditions of service and the court in determining the question of wrongful dismissal is bound to restrict herself to the interpretation of the terms and conditions of service. He cited the case of AKPABOT V. PHCN &OR (2013) LPELR-20697(CA).

Counsel referred to paragraph 15 of exhibit D10 i.e. Group HR Disciplinary process and sanctions policy and submitted that the Claimant’s act of diverting the funds meant for withholding tax and VAT in to her private account as admitted in evidence, was contrary to the Defendant’s policy and as such amounted to Conversion, misapplication or misappropriation of asset of the Defendant contrary to Group HR Disciplinary process and sanctions policy (admitted as exhibit D10) and that the Claimant’s willful disobedience to the Defendant’s policy amounted to an act of gross misconduct. He cited the case of NWOBOSI V. AFRICAN CONTINENTAL BANK LTD (1995) 6NWLR (PT. 404) P.658.

Counsel added that by the provisions of paragraph 9.5 of the Defendant’s Staff Handbook (admitted in evidence as exhibit D15) an employee would be dismissed from the employment of the defendant where found to have committed an act of gross misconduct.

Counsel submitted further that in view of the admission made by the Claimant as evidenced by her testimony before the court, the Claimant need not undergo criminal trial before the Defendant can exercise its power to dismiss her from its employment. Counsel cited the case of MALIKI V. MICHEAL IMODU INSTITUTE OF LABOUR STUDIES (2008) LPELR – 8467 (CA), PP. 41-47, PARAS. C-B.

In arguing issue two, counsel submitted on behalf of the Defendant that the Claimant’s letter of resignation dated the 20^th of July, 2011 is ineffective and ineffectual having not complied with the terms and agreement of the parties.

Counsel added that the letter of termination of the Claimant’s employment pre-dates the purported letter of resignation purportedly written by the Claimant hence the purported letter of resignation is ineffective and ineffectual for all intents and purposes. He added that assuming without conceding that the purported letter of resignation pre-dates the letter of termination of the Claimant’s appointment as alleged by the Claimant, the said letter of resignation is still materially defective and as such, ineffective, the Claimant having failed to comply with the provisions of the service agreement before resigning.

Counsel posited that a letter of resignation from an employment carries with it the right to leave the service automatically without any benefit subject to his paying of his indebtedness to his employer. He cited the case of WAEC V. OSHIONEBO (2006) 12 NWLR (PT. 994) AT P.272 PARA. B.

Counsel added that it is part of the service agreement of the parties that resigning staffs are required to settle their indebtedness as a condition precedent to acceptance of resignation. He cited Paragraph 2.6.2 (C) of the Defendant’s Staff Hand Book admitted in evidence as Exhibit D15. Counsel also added that it is not in dispute that the Claimant was given a loan facility by the Defendant which was not settled as at the time of her resignation.

Counsel contended that the Claimant did not place any evidence before this Honorable Court to show that she has paid to the Defendant the balance of the loan sum of N600, 000 prior to her letter of resignation.

Counsel argued further that it was the agreement of the parties as contained in paragraph 9.2.2 of the Defendant’s Staff Hand Book (Exhibit D15), that where Claimant intends to resign from the employment of the Defendant, she is required to either give the Defendant one month duration of notice or make payment of one month salary in lieu of notice. He posited that none of these procedures was complied with by the Claimant.

In arguing issue three, counsel submitted on behalf of the Defendant that the Claimant has failed woefully to prove her case as required by law to warrant the grant of the reliefs sought via her writ of summons and statement of claim by this Honorable Court.

Counsel added that it is an elementary principle of our law that he who asserts must prove and cited the case of AGBANA V. OWA (2004) 13 NWLR PT.889 AT PARA. B.

He proceeded by arguing that the law places the burden of prove on an employee who alleges the wrongful dismissal/termination of his employment by his employers to place before the Court the terms of the contract of employment before proceeding to prove the manner at which the said contract was breached by his employer. He cited the case of IBAMA V. SPDC (NIG.) LTD. (2005) 17 N.W.L.R (PT. 954) 378 – 379 and posited that Claimant failed to place before this Honourable Court any document in proof of her purported contract of employment, neither did she place before this Court the terms of the agreement that was allegedly breached by the Defendant nor stated the way and manner at which the contract of employment was breached by the Defendant.

Counsel argued further that as regards the Claimant’s contributions to the staff pension fund scheme, it is in evidence that the Claimant is aware that the Defendant remitted her pension contribution to the Claimant’s pension fund Administrator as shown in paragraph 22 of the Claimant’s witness disposition on oath admitted in evidence as Exhibit C1b. We therefore submit that the claim of the Claimant as contained in relief (i) and (iii) cannot stand as the said contribution is not in possession of the Defendant.

He added that the Claimant is not entitled to payment of balance of her salaries for the months of March, April, May and June, 2011 and her full salaries for the months of July and August, 2011, since the Claimant has failed to prove that she was wrongfully dismissed by the Defendant. Furthermore, she is not entitled to claim any balance of the said salaries for the months March, April, May and June, 2011 being the months she was on suspension.

With regards to reliefs (v) and (vi), counsel posited that there is no service agreement dated 30^th March 2004 before this court, and submitted that, this alone renders the relief sought incompetent and same ought to be dismissed. Counsel added that in view of the admission by the Claimant that she diverted funds leading to her dismissal, her claim for damages for breach of the service agreement is most certain to fail in view of paragraph 13.6.6. of Exhibit D10.

In arguing issue four, counsel submitted that the Defendant/Counter Claimant has proved its Counter Claim as required by law to warrant the grant of the reliefs sought via its Counter Claim.

Counsel added that the Defendant via its Counter Claim, relied on exhibit D14 and proved that the Defendant is entitled to the said sum of N1, 324,536.19 (One Million three hundred and twenty four thousand, five hundred and thirty six naira nineteen kobo) as at 30^th September, 2013 with interest, the Claimant having failed to pay the debt after her appointment was terminated by the Defendant.

Counsel submitted that no law prohibits a disengaged employee from paying a loan facility granted to her by her former employer, while from the agreement of the parties as contained in the Defendant Staff Hand Book admitted in evidence as Exhibit D15, the Claimant is required to settle all her indebtedness to the Defendant as at the time of exiting the Defendant’s Bank. He cited Paragraph 2.6.2 (C) of the Defendant’s Staff Hand Book.

Counsel added that it is also in evidence that the Defendant wrote a letter dated 19^th of September, 2011 admitted in evidence as D13 to the Claimant giving her notice to repay the loan and her failure to so do, the loan would be charged in the commercial interest rate.

Counsel concluded by urging the Court to refuse all the reliefs sought by the Claimant and consequently dismiss the Claimant’s action for lacking merit and substance. He added that in the likely event that the Claimant’s action is dismissed by this Honorable Court, the Defendant/Counter – Clamant prays the court to grant the reliefs sought by the Defendant/Counter Claimant in its Counter Claim.

Arising from the final address of the Claimant filed on the 24^th of July, 2019, counsel to the Claimant C.C. Achunulo Esq. formulated two issues for determination to wit:

Whether from the facts and evidence before the Court the Claimant has proved her claims to be entitled to the judgment of the Honourable Court.
Whether the Defendant has proved its Counter claim.

In arguing issue one, counsel submitted that where the dismissal of a servant is based on a criminal allegation, such allegation must first be proved before the dismissal can stand. Counsel cited the cases of OLANREWAJU VS.AFRIBANK PLC (2001) F.W.L.R. (Pt. 72) 2008, 20 16(F) and GARBA VS. UNIVERSITY OF MAIDUGURI (1986) 1 N.W.L.R. (Pt.18) 550.

He posited that evidence shows that the Claimant initially warehoused the funds in the private account of a staff of the Defendant but when the staff was transferred to another branch, the Claimant started innocently to warehouse the fund in her child’s account. He referred to paragraphs 13, 14 and 22 of her Written Deposition.

Counsel contended that Contrary to the argument of the Defendant’s Counsel that the Claimant failed to plead and produce the terms and conditions of her employment before the Court, the Claimant pleaded the Service Agreement at paragraph 26 of the Statement of Facts and the said Service Agreement is attached to Exhibit C3, which is before the Honourable Court.

Counsel also argued that Since the Defendant’s counsel has in his address admitted that the allegation against the Claimant borders on criminality and evidence shows that the criminal allegation was not proved before the Claimant was dismissed from her employment, the Court should hold that her dismissal from her employment was wrongful.

With regards to salaries of the Claimant, counsel argued that assuming, without conceding, that the Defendant’s dismissal is justified, what happened to the Claimant’s salary for June 2011 which was only N50,000.00 instead of 205,500.00 which would have represented half of her salary for that month. He added that the payment of N50,000.00 amounts to a breach of contract and the Claimant is entitled to payment of the outstanding balance of her salary for the month of June 2011. He cited the case of CENTRAL BANK OF NIGERIA VS. ARCHIBONG (2001) F.W.L.R. (Pt. 58) 1032, 1047(C).

With regards to letter of resignation, counsel contended that although the letter of dismissal was dated July 12, 2011 the endorsement for acknowledgment of receipt of the letter shows that it was only delivered to the Claimant on 11/8/2011 after the Claimant delivered her letter of resignation to the Defendant on July 26, 2011.

Counsel concluded by urging urge the court to resolve issue one in the affirmative.

In arguing issue two, counsel contended that the Defendant failed to prove its Counter claim while submitting that a counter claim is a separate action independent of the claimant’s action and citing the cases of J. 0. ANOLIEFO ENTERPRISES (NIG.) LTD VS. UNIVERSAL TRUST BANK (NIG.) LIMITED (2001) F.W.L.R. (Pt. 69) 1334, 133 8(RATIO 4) and FIRST BANK OF NIGERIA PLC VS. A. MAMMAN (NIG) LTD & ANOR (2001) F.W.L.R. (Pt. 31) 2890, 2892(RATIO 5).

Counsel added that to succeed on a counter claim, the defendant/counter claimant is bound in law to proof his counter claim on the preponderance of evidence, so that the same standard of prove which is required of a claimant to prove his claim is the same as that required of a defendant to prove his counter claim. He cited the case of NARINDEX TRUST LTD VS. NIGERIAN INTERCONTINENTAL MERCHANT BANK LTD. (2001) F.W.L.R. (Pt. 49) 1546, 1550(RATIO 6).

Counsel posited that in the Witness Deposition of the Defendant’s only witness, Mr. Emmanuel Oluyeri, no reference was made by him to paragraph 47 of the Amended Statement of Defence and Counter claim in his said witness deposition in prove of his Counter claim. He contended in addition that since the Defendant did not lead evidence on facts contained at paragraph 47 of the Defendant’s Counter claim, which is the main plank of its claim, the Honourable Court can ignore that portion of the Defendant’s pleadings.

Counsel cited the cases of OMISORE VS. AREGBESOLA (2015) ALL F.W.L.R. (Pt. 813) 1673, 1734(F).; ANYAKA VS. ANYAKA (2015) ALL F.W.L.R. (Pt. 799) 1150, 1167(F) and EMMANUEL VS. UMANA (2016) EJSC 107, 151(C-D)

Counsel added that contrary to the argument of the Defendant’s counsel at paragraph 6.4 of his address, the Claimant did not admit to be indebted to the Defendant to the tune of N600,000. Counsel contended that the use of the word “about” at paragraph 45 of the Statement of Facts and at paragraph 45 of her Written Deposition shows that she is not certain as to the exact amount she owes the Defendant.

Counsel submitted that a court of law is not a charitable institution and cannot grant a party a relief he has not claimed or proved. He cited the case of ALHASSAN VS. ISHAKU (2017) EJSC (VOL. 66) 142.

Counsel also contended that although both parties are in agreement that a loan was granted to the Claimant, they are not in agreement as to how much of the loan is remaining unpaid and whether the balance can be paid at all in the circumstances of this case and considering the Claimant’s unpaid salaries. He added that it is only credible evidence that can show how much has been repaid and how much that is remaining unpaid and since the Defendant is claiming that the sum of N1,324,536.19 is being owed to it by the Claimant, it has a duty to prove same and this it has failed to do.

Counsel submitted that where a party asserts the positive, it is his duty to produce evidence to prove same. He cited the case of SALAWAL MOTOR HOUSE LTD VS. LAWAL (2000) F.W.L.R. (Pt. 3) 517, 529(RATIO 10); APENA VS. AILERU (2015) ALL FWLR (PT. 790) 1256, 1274 — 1275(H — A) and N.I.T.E.L. VS. OKEKE (2017) ALL FWLR (PT. 899) 196, 218(F).

Counsel also contended that counsel for the Defendant tendered a statement of account which was admitted as Exhibit C10 under protest and that the said statement of account set up a new case between the Claimant and the Defendant because it was produced after pleadings had been settled by the parties by the Defendant who is an interested party in the proceedings and it was not frontloaded and so was not brought to the attention of the Claimant to enable her respond to it.

Counsel also submitted that parties and the Court are bound by the pleadings of the parties, so that no party is allowed to take the other by surprise. He cited the cases of SALAWAL MOTOR HOUSE LTD. VS. LAWAL supra at 524(E) and COMPTROLLER – GENERAL OF CUSTOM VS. GUSAU (2017) ALL FWLR(Pt. 911) 422, 450(E — F). He added that any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement tends to establish is not admissible in law. He cited Section 83(3) of the Evidence Act, 2011.

Counsel also argued that contrary to paragraph 6.6 and 6.7 of the address of Defendant’s counsel, no such letter dated 19^th September, 2011 was served on the Claimant by the Defendant and this is stated clearly at paragraph 21 of the Consequential Amended Reply to Amended Statement of Defence and confirmed by the Claimant at paragraph 21 of her Consequential Amended Deposition.

In addition, counsel posited that it is the duty of a bank which avers that there is an agreement between itself and its customers to charge interest on loans and advances to establish by credible evidence that the rate of interest which it is charging on the loan or advance is within the terms of agreement and that such interest is within the prime lending rate as contained in the CBN Guidelines to Banks on interest rate. He cited the case of FIRST BANK OF MG. PLC. VS. MAMMAN MG. LTD. (2001) F.W.L.R. (Pt. 31) 2890, 2904(D —E) and Section 15 of the Bank Act, Cap 28, LFN 1990 and contended that Defendant’s claim of 35% per annum from 1st October, 2013 till judgment is entered and thereafter 10% per annum till final satisfaction of the sum of N1,324,536.19 is baseless because no evidence was produced to justify those claims.

Counsel also contended that that no evidence was led by the Defendant at all in its claim for legal fees and filing fees.

Counsel concluded by urging the court to resolve issue two in the negative.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted in evidence.

I have also taken into account reliefs sought vis-à-vis the submissions of learned Counsel to both parties in their respective final written addresses.

In consideration of the forgoing, I find it apposite to determine the substantive suit of the Claimant before addressing the counter-claim made by the Defendant and arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for the determination of the substantive suit are to wit:

Whether or not in view of the facts, circumstances of this case and the evidence before the court, the letter of resignation tendered by the Claimant is effectual and it is same that determined the employment of the Claimant with the Defendant.
Whether or not in view of the facts, circumstances of this case and the evidence before the court, the termination of the Claimants employment by the Defendant was wrongful.
Whether or not the Claimant is entitled to the reliefs sought.

Before resolving the foregoing issues, it is incumbent on this court to determine the status of the exhibits admitted under protest. In this wise, I start with exhibits C8 which was tendered in evidence by counsel to the Claimant through CW1. Counsel to the Defendant contended that the document was not pleaded nor frontloaded. Counsel to the Claimant however responded that the said document was pleaded in paragraph 13 of Amended reply to the statement of defence.

I have taken a look at the said Exhibit C8 and find that same is a letter dated 29^th June 2005 addressed by the Defendant to the Claimant with the subject “Re:2004/2005 Staff Performance Appraisal Exercise”. I have also taken a look at the said paragraph 13 of the reply where the Claimant averred that she will rely on the periodic Appraisal and audit report issued by the defendant.

Consequent upon the foregoing finding, the said Exhibit C8 is accordingly considered to have been pleaded and same was listed in the additional list of documents filed on the 24^th of April, 2019. Consequently, the objection of counsel to the Defendant is unmeritorious and same is accordingly overruled while Exhibit C8 is accordingly admitted in evidence.

With regards to Exhibit C10 tendered through CW1 by counsel to the Defendant in the course of cross examination, counsel to the Claimant contended that the Exhibit was not pleaded nor frontloaded. While counsel to the Defendant retorted that upon the witness identifying the document in the course of cross examination, same can be considered to have been frontloaded.

In view of the contention, I have taken a look at the said exhibit C10 and find that same is a statement of account which CW1 identified to have been the one wherein she warehoused certain monies. Upon such identification, the document becomes relevant to the fact in issue before the court and as it is trite that relevancy governs admissibility, see OYEBODE & ANOR v. GABRIEL & ORS (2011) LPELR-8693(CA), the objection of counsel to the Claimant is overruled as the said exhibit C10 is accordingly admitted in evidence.

With regards to Exhibits D4, D6, D7, D10 and D14, all of which were tendered in evidence through DW1 by counsel to the Defendant. Counsel to the Claimant contended that Exhibits D4, D6, D7 and D10 were produced from the computer and necessary foundation was not laid while Exhibit D14 was not frontloaded nor pleaded and being a computer generated document did not comply with section 84 of the Evidence Act.

Counsel to the Defendant responded that there is a certificate of compliance attached to the emails i.e. Exhibits D4, D6, D7 and D10 while Exhibit D14 was frontloaded and pleaded in paragraph 94 and 103 of the witness statement on oath.

In view of the contention, I have taken a look at the said Exhibits D4, D6, D7 and D10 and find rightly so that the defendant filed along with the said exhibits, a certificate in compliance with section 84 of the Evidence Act with a statement signed by DW1 detailing how the said documents were produced. Consequently, the objection of counsel to the Claimant is overruled and the said exhibits are accordingly admitted in evidence.

With regards to exhibit D14(a) and (b) which are two sets of statements of account. I have taken a look at paragraphs 94 and 103 of the witness statement on oath of DW1 where the witness respectively mentioned the fact that the Claimant warehoused funds and diverted same into a personal account and that the Claimant’s statement of account will be relied upon at trial. Exhibit D14 (a) is the statement of account of the Claimant while D14(b) is her daughter’s. Consequently, I find that the said exhibits D14(a) and (b) are pleaded and relevant to the determination of this suit and that makes the objection of counsel to the Claimant to be baseless and same is accordingly overruled. Exhibits D14(a) and (b) are accordingly admitted in evidence.

That said, I now turn to the issues formulated. With regards to issue one, same is formulated in view of the second relief sought by the Claimant and some facts of this case to the effect that the Claimant posited that she tendered a letter of resignation to bring her employment to an end with the Defendant. Claimant tendered Exhibit C5 which is the letter of resignation dated 20^th of July, 2011 and received by the Defendant on the 26^th of July, 2011. The Claimant consequent upon the letter contends that having served the letter on the Defendant on the said, 26^th of July, 2011, the letter of dismissal, Exhibit C4, which was delivered to her on 11/8/2011 is of no effect in the determination of her employment even though the said letter of dismissal is dated the 12^th July, 2011.

In response to the contention, Defendant contended that the letter of resignation though received on the 26^th of July has no effect whatsoever in determining the employment of the Claimant with the Defendant in view of the Claimant having failed to satisfy the conditions precedent to acceptance of resignation. Counsel to the Defendant particularly argued that the Claimant failed to comply with paragraph 2.6.2 (c) of Exhibit D15 which is the Defendant’s staff handbook in view of the fact that the Claimant was indebted to the Defendant and failed to clear her indebtedness. He added that the Claimant also did not provide one month notice nor pay one month salary in lieu of notice in accordance with paragraph 9.2.2 of the Defendant’s Staff Handbook (Exhibit D15).

In view of the foregoing contention, I must state that facts pleaded find their strength in the evidence placed before the court in support of same. The court in the case of GUINNESS (NIGERIA) PLC V. ONEGBEDAN (2011) LPELR-4222(CA) posited that:

“The law is settled and trite too, that averments in pleadings do not take the place of proof of facts deposed to in the pleadings. Whoever makes an assertion in pleadings has the burden to prove such averment through credible evidence be it oral or documentary.” Per SANUSI, J.C.A. (P. 26, Paras. B-C).

In view of the foregoing contention, I must state that it is paramount to consider the facts and evidence before the court to ascertain if truly the staff Handbook of the Defendant provides a condition precedent for resignation which the Claimant did not fulfill particularly in view of the allegation of indebtedness to the Defendant.

With regards to allegation of indebtedness, I find that the Claimant herself stated between paragraphs 42 – 48 of her witness statement on oath that she while in the employment of the Defendant, she borrowed the total sum of N3,000,000.00 and that at the time she was suspended, the balance was about N600,000.00 and due to how she was disengaged, she has not been able to secure another job and she is therefore incapable of paying back the outstanding sum of N600,000.00.

In addition to the foregoing, I find that during cross examination of the Claimant as CW1, she admitted that she had a loan running with the Defendant and that she had no salary to complete the payment of the loan.

The foregoing finding makes it indisputable that the Claimant was at time of tendering the letter of resignation indebted to the Defendant arising from the loan given to her as a staff of the Defendant.

The question that arises is what impact would the indebtedness have on her resignation letter? In considering the impact, I find it apposite to restate the position of the law as stated in the case of THE WEST AFRICAN EXAMINATIONS COUNCIL V. FELIX IWARUE OSHIONEBO (2006) LPELR-7739(CA) where the court held that:

“Tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See (1) Benson v. Onitiri (1960) 5 ES.C. 69, (2) Osu v. PA.N. Ltd. (2001) 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State & Ors. (2001) 13 NWLR (Pt.731) 517.” Per ADEREMI, J.C.A. (Pp.17-18, Paras.F-A).

What is discernible from the foregoing is that an employee has the right to tender letter of resignation. If it is intended to grant the employee right to leave the service automatically and immediately, it will only take effect if the employee is not indebted to the employer and in such case, the resignation will cost the employee any benefit whatsoever.

In the instant case, the Claimant did not state whether or not she wants the notice of resignation to take immediate effect and neither did she give one month notice nor state that she intends to pay for one month in lieu.

Furthermore, upon the finding that the Claimant admitted being indebted to the Defendant and facts admitted need no further proof, I have taken a look at paragraph 2.6.2 (c) of the Staff Handbook and finds that same provides that:

Indebtedness policies and terminal benefits processes are under one umbrella – HMC. Therefore all resigning staff shall get their terminal statements within 24hrs of submission of resignation letter and resigning staff are required to settle their indebtedness as a condition to acceptance of resignation and clearance.

In addition, I have taken a look at paragraph 9.2.2 which requires staff who are resigning to give appropriate notice or make payment in lieu of notice.

In view of the foregoing, there is no gainsaying that the burden is on the Claimant to prove that she indeed complied with the provisions of the staff handbook which regulates her employment with respect to resignation. The Defendant posited that the Claimant has failed to comply with the foregoing requirements and rightly so, arising from the evidence before this court, none whatsoever establishes the fact that the Claimant cleared her indebtedness with the Defendant, nor gave the Defendant appropriate notice of one month nor payment in lieu of the one month.

Consequent upon the failure to prove the fulfillment of the condition precedent upon which to resign from the employment of the Defendant, the irresistible conclusion on issue one is that in view of the facts, circumstances of this case and the evidence before the court, the letter of resignation tendered by the Claimant is ineffectual and same did not determine the employment of the Claimant with the Defendant.

For avoidance of doubt, issue one is resolved against the Claimant and in favour of the Defendant to the effect that the letter of resignation tendered by the Claimant did not determine her employment with the Defendant in view of her failure to meet the condition precedent to make the letter of resignation effective.

I then turn to issue two which is “whether or not in view of the facts, circumstances of this case and the evidence before the court, the dismissal of the Claimant from the employment of the Defendant was wrongful”.

The formation of the said issue is in view of the declaration sought by the Claimant for the court to declare her dismissal from the employment of the Defendant as wrongful and for the court the declare that the Defendant breached a service agreement dated 30^th March, 2004.

In resolution of this issue, it is trite that an employee who complains of wrongful dismissal or termination of employment is saddled with the responsibility of presenting concrete evidence as to the terms of the employment and how those terms were breached bringing about wrongful dismissal or termination. The court in AFRIBANK (NIGERIA) PLC V. OSISANYA (1999) LPELR-5206(CA) held that:

“The law is well settled that when an employee complains that his employment has been wrongfully terminated, that employee has the onus: (a) to place before the court the terms and conditions of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The term of contract of service is the bedrock of any case where the issue of wrongful termination of employment calls for determination:- Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356; Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at 412. In Amodu v. Amode (supra) Agbaje, JSC who read the lead judgment observed at page 370 as follows: “…it appears clear to me that since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question” Per OBADINA, J.C.A.(Pp. 32-33, paras. C-D).

In addition, the court in UBA PLC v. ORANUBA (2013) LPELR-20692(CA) held that:

“It is settled law that in an action for wrongful dismissal from employment, the burden is always on the Claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer. Angel Spinning & Dyeing Ltd v Ajah (2000) 13 NWLR (Pt.685) 532. Further, in a contract of employment between a master and a servant without statutory flavour, once the master complies with the terms of the agreement, he may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason. Olatunbosun v. Nigerian Institute of Social & Economic Research Council (1988) 3 NWLR (Pt 80) 25. The master must in addition give the servant a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria.” Per IYIZOBA, J.C.A. (P. 20, paras. A-B)

In view of the foregoing burden placed on the Claimant, the highlight of facts leading to the dismissal of the Claimant from employment of the Defendant is that the Claimant as a staff of the Defendant, working as Branch Operations Manager at Umuaka branch, Imo State, received the sum of N421,000.00 in January 2011 and another sum of N203,000.00 in March, 2011 being monies meant for payment of withholding Tax and VAT. Claimant posited that Taxpayer’s Identification Number (TIN) was supposed to be sent along with the monies for same to be paid but the TIN did not come and she eventually had to warehouse the money into her daughter’s account maintained with the bank. The Defendant got to know of the fact that she warehoused the monies in her daughter’s account and the issue was escalated, leading to her suspension sometime in March, 2011 and eventually her dismissal in July, 2011.

The crux of the Claimant’s contention is that the Defendant had already made up its mind to disengage her from employment before setting up a disciplinary committee as she was asked to proceed on suspension without a query which would have afforded her the opportunity to explain what happened.

Claimant also contended that the manner in which her service with the Defendant can be terminated is provided in the Service Agreement dated 30^th March, 2004 between her and the Defendant and the Defendant ignored the provisions in terminating her employment.

The forgoing being a highlight of facts. In terms of evidence, the Claimant tendered Exhibit C2 which is a letter of offer of employment dated the 14^th of January, 2003; Exhibit C3 which is a letter of Confirmation of Appointment dated the 17^th of March, 2004 and Exhibit C4 which is a letter of Dismissal dated 12^th July, 2011.

Upon evaluation of the foregoing pieces of evidence, I find that apart from exhibit C3 which mentions in paragraph 2 that “We enclose herewith Staff Pension Fund Form and Service Agreement Form for you to complete”, none of the evidence tendered by the Claimant presents the Service Agreement which the Claimant alleged was not complied with in the termination of her employment.

The foregoing indicates clearly that the Claimant has failed to present the terms regulating her employment before the court in order to ascertain the manner in which her employment can be terminated and how her dismissal from employment was wrongful.

Notwithstanding the foregoing, for want of clarity and certainty and in view of the fact that the Claimant stated that she was not afforded the opportunity to explain herself before she was suspended and later dismissed, I find it apposite to consider the position of the Defendant who contended that the Dismissal of the Claimant was in accordance with the Group HR Disciplinary Process and Sanction Policy (Exhibit D10) and Defendant’s Staff Handbook (Exhibit D15). The Defendant contended that the Claimant was required to explain her position via email correspondences with regards to monies warehoused in her daughter’s account and the withdrawals made therefrom. The Defendant added that it is not true that upon discovery of the act, the Claimant was immediately sent on suspension for alleged diversion and conversion but that the discovery of the unauthorized funds transfer of 4^th March 2011 prompted a further inquiry by the Bank which revealed that a similar act had earlier taken place in January 2011.

The Defendant stated further that the Claimant was sent a query by mail which she responded to by admitting that she indeed authorized the Funds transfer officer to transfer of the said funds to her personal account and that the suspension was to allow unimpeded investigation in accordance with Exhibit D10.

In view of the foregoing, I have taken a careful look at the evidence placed before the court in relation to suspension and eventual dismissal of the Claimant. Exhibit D14 (b) which is a statement of account in the name of Onyenucheya Nkeiru ITF Chizubere shows that the sum of N450, 275.98 was credited into the account in January 2011 while another sum of N203,095.00 was credited into the account in March, 2011. The Exhibit also shows that withdrawals were made from the account on 5 occasions from 28^th January 2011 to 23^rd February, 2011. The Defendant also tendered Exhibit D6 and D7 which are email correspondence in relation to the warehousing of funds meant for Withholding tax and VAT in the Claimant’s personal account. Exhibit D6 started with a mail sent from one Uhegbu, Ikechukwu to the Claimant on the 8^th of March, 2011 at 9:04AM and the content of the Mail reads:

Good Morning BOM,

Kindly Explain why your account is warehousing this withholding tax (WHT) from FPO Owerri & VAT? Please clarify?.

On the same date, at 10:20 AM, another mail was sent to the Claimant from Nwankwo Mayagnes, who is the Cluster Control Manager. The mail reads:

BOM,

Debiting your transit to credit your savings account for WHT sent to your transit????????

Who taught you this and don’t you have internal accounts?

Please could you justify?

At 3:44 PM of the same date, the Claimant was sent another mail from Chima Darlignton, the Group Internal Control of the Defendant wherein the Claimant was informed thus:

We observed that on the 19-01-2011 your subject account was credited with N450,275.98 from the transit account and narrated as R/V of 17-01-2011 FIRS. Equally, cash withdrawals entered your account in the following order as represented in the table below which also didn’t sum up to the amount initially credited, Please explain further as there should be outstanding balance remaining for that credit.

As at 5:02 of the same day, when the Claimant had not replied the last mail from Chima Darlignton, she was sent another mail wherein she was informed that they are still awaiting her response.

All the foregoing correspondence took place on the 8^th of March, 2011 before the Claimant was suspended on the 9^th of March via Exhibit D11. Although the foregoing email correspondence was not headed as ‘query’, there is no gainsaying that they afforded the Claimant ample opportunity to explain herself in respect of the warehousing of monies into her personal account.

In addition to the foregoing, the Defendant tendered exhibit D8 which is the report on a case of diversion of withholding Tax from Umuaka BO Transit account to personal Account By the BOM- Onyenucheya Nkeiru dated 23^rd March 2011. The evidence was to establish the fact that an investigation was conducted into the matter before the Claimant was invited to appear before the Defendant’s Regional Bank Disciplinary Committee whose report, Exhibit D9, dated the 21^st of April, 2011 showed that the Claimant was invited before the Committee and that the Committee recommended that the Claimant should be dismissed.

The foregoing shows clearly that the Claimant was afforded the opportunity to explain herself before she was suspended and eventually before she was dismissed.

Counsel to the Defendant argued in addition that the act for which the Claimant was found wanting amounted to conversion which is a willful disobedience of the policy of the bank and amounted to gross misconduct and by paragraph 9.5. of Exhibits D15, the appropriate disciplinary action is dismissal.

Consequent upon the foregoing, I have paid attention to paragraph 15 of Exhibit D10 which is the Disciplinary Process and Sanction Policy of the Defendant and I find that the punishment for conversion, misappropriation, or Misappropriation of the assets of the Group or customers is dismissal. I have also paid attention to paragraph 9.5 of Exhibit D15 as referred to by counsel to the Defendant and find rightly so that the Defendant can dismiss an employee for gross misconduct and by Exhibit D12, the letter of dismissal, the Claimant was dismissed for gross misconduct. The said paragraph 9.5 provides that:

UBA Group may, without Notice or payment of any entitlements, dismiss from its employment any employee found to have committed an act of gross misconduct”

In view of the foregoing, it is ideal to reiterate the meaning of gross misconduct which the court in the case of EZE v. SPRING BANK PLC. (2011) LPELR-2892(SC) posited that:

“gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss of the employee see Ridge v. Baldwin (1953) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599.” Per MOHAMMED, J.S.C. (P.20, Paras.E-G).

Arising from the facts of the case, the Defendant has found the conduct of the Claimant to be a gross misconduct. The manifestation of the magnitude of the conduct is deducible from the email correspondence that ensued between the Claimant and officers of the Defendant in expressing disbelief as to why the Claimant would warehouse such funds in her personal account. An act which she admitted was done but with reason. It was also established that after warehousing the said funds, she made withdrawals from the account but she failed to disclose what the withdrawals were for.

There is no gainsaying that such conduct would undermine the confidence of the employer in terms of financial integrity of the Claimant as a banker and having established that due process was carried out to investigate the conduct, the Defendant cannot be faulted for summarily dismissing the Claimant.

I must categorically state that the summary dismissal of an employee for gross misconduct is not dependent on a criminal trial as misconceived by counsel to the Claimant. The Supreme Court settled this misconception in the case of Yusuf v. Union Bank of Nigeria Ltd., (1996) 6 NWLR (Pt.457) 632 (1996) 6 SCNJ. 203 where the court held that:

“It is not necessary, nor is it a requirement under S. 33 of the 1979 (now section 36 of 1999 Constitution) Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality… ” per Wali, JSC. at pages 214-215.

In view of all the foregoing, while the Claimant has failed woefully to establish the manner in which her dismissal was wrongful, the Defendant who is not burdened to prove, has presented cogent evidence to justify the dismissal of the Claimant from employment.

Consequently, issue two is resolved against the Claimant and in fovour of the Defendant to the effect that in view of the facts, circumstances of this case and the evidence before the court, the dismissal of the Claimant from the employment of the Defendant was not wrongful.

Having resolved issue one and two, I therefore turn to issue three which is in respect of the reliefs sought by the Claimant and same shall be considered accordingly.

In consideration of the reliefs, it is apposite to state that four of the reliefs sought by the Claimant are declaratory reliefs and the Claimant is saddled with the burden to prove that she is entitled to the declarations sought on the strength of her case and not on the weakness of the defence. The court reiterated this in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA)where the court posited that:

”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See: AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).

It is in view of the forgoing that I shall consider all the declaratory reliefs sought vis-à-vis the facts and evidence before the court and in relation to the resolution of issues one and two above.

That said, I find it apposite to start with relief 2 which is for “A Declaration that the claimant’s employment with the defendant effectively came to an end on July 26, 2011 when the claimant tendered her letter of resignation; therefore, the defendant’s letter of dismissal dated July 12, 2011 and delivered to the claimant on August 11,2011 is ineffectual, null and void and of no effect whatsoever”.

The grant of this relief is dependent on the resolution of issue one which this court resolved against the Claimant to the effect that the letter of resignation tendered by the Claimant did not determine her employment with the Defendant in view of her failure to meet the condition precedent to make the letter of resignation effective. The Claimant did not present any piece of evidence to prove that she cleared her indebtedness to the Defendant and neither did she present evidence of payment of salary in lieu of notice to make the letter of resignation take effect immediately upon submission to the Defendant as required by the Staff Handbook which guides her employment relationship with the Defendant.

Consequent upon the foregoing, there is no basis upon which to make the declaration sought in relief 2 and same is accordingly refused.

Relief 1 is for “A declaration that her dismissal from the employment of the defendant is wrongful and the claimant is entitled to payment of balance of her salaries for March, April, May, June, and her full salaries for the months of July and August, 2011 and her outstanding contributions to the Staff Pension Fund Scheme.”

The foregoing declaration sought is in two folds: the first is that the dismissal of the claimant from employment is wrongful and there is no gainsaying that the issue of dismissal has been dealt with in resolving issue two against the Claimant to the effect that the Claimant has failed woefully to establish the manner in which her dismissal was wrongful and the Defendant who is not burdened to prove, has presented cogent evidence to justify the dismissal of the Claimant from employment. To that end, the dismissal of the Claimant was valid and the relief sought to declare same wrongful is hereby refused.

The second limb of the relief has to do with salaries of the Claimant as the Claimant contended that from January 2011, her salary was N411,000.00 but in April May and June, she was paid N205,500.00, N205,500.00 and N50,000.00 respectively while she was not paid any further salary until she was dismissed.

The Claimant did not tender any piece of evidence to establish the assertion in relation to the payments made to her.

The Defendant in reacting to the claims however posited that by the Defendant’s HR Disciplinary Process and Sanctions Policy, the Claimant was only entitled to 50% of her salary upon suspension for first three months and if the suspension is extended, zero pay for the subsequent months until case is resolved. The Defendant tendered the said Policy as Exhibit D10.

Consequent upon the foregoing, I have taken a look at the said Exhibit and find rightly so that paragraph 13.6.3 and 13.6.4 as cited by counsel to the Defendant states that:

Suspension as a result of investigation shall attract 50% of full monthly salary subject to a maximum suspension period of 3 months…

It is expected that the case of a staff on suspension shall be determined within the 3 months period. In the event that the matter extends beyond 3 months … such staff shall be placed on zero pay for the period in excess of 3 months.

Arising from the foregoing provision, the Claimant ought to have known that she was paid what she was entitled to having been suspended on the 9^th of March, 2011 and eventually dismissed from employment via the letter dated 12^th of July 2011. It is needless to also argue that she received the letter of dismissal in the month of August and ought to be paid salaries for July and August since by the provisions of paragraph 13.6.4 of exhibit D10, the excess period of her suspension period attracts zero pay.

Also, in view of the fact that the Defendant has maintained that the Claimant was paid 50% salary for the first three months, the burden rests on the Claimant who posited that she was paid N50,000.00 in the month of June to establish that the month of June was part of the first three months of suspension and that she was paid N50,000.00 instead of 50% of her salary.

With regards to outstanding pension contribution to the staff pension fund scheme, the Claimant failed to tender any piece of evidence in relation to the pension scheme. However, I reckon that the claimant posited that the Defendant deducts about N13,000 from her salary as contribution to pension scheme.

The Defendant responded that the deductions have been remitted to her Pension Fund Administrator and same can be assessed through the Administrator.

The Claimant has not established by any scintilla of evidence that the said deductions were not remitted hence, there is no basis upon which the court can make a declaration that she is entitled to the payment.

Having failed to establish her claim that she was entitled to the said stated salaries or that her pension contributions were deducted but not remitted, the second fold of the declaration sought in relief 1 also fails woefully and same is accordingly refused.

Relief 4 is for “A declaration that the loan granted to the claimant by the defendant while the claimant was in the employment of the defendant was not in the nature of a commercial loan”. With regards to this relief, the highlight of fact surrounding same is that the Claimant posited that as staff of the Defendant Bank, she borrowed the sum of N2,000,000.00 and N1,000,000.00 at different dates in January, 2011 and with respect to the N2,000,000.00, the Defendant deducts N75,000.00 monthly from her salary while in respect of N1,000,000.00, the Defendant deducts N35,000.000 and it ought to have continued so until the loan was fully liquidated. She posited that by March, 2011 when the Defendant suspended her, the balance of the loan was about N600, 000 but by the time she was dismissed, the Defendant dropped the loan into her salary account and started charging her huge sum as interest on the said loan which was not contemplated. She contends that the loan was granted to her as a staff and not as a commercial loan.

In response, the Defendant posited that the said loan was indeed granted to the Claimant while in the Defendant’s employment as a staff loan but with effect from 12^th July, 2011 when the Claimant’s employment was determined, the loan became recoverable at commercial rate since the Claimant was no longer a staff of the Defendant.

The foregoing notwithstanding, what the Claimant seeks is for the court to declare that the loan granted to her was not in the nature of a commercial loan. Rightly so, the Defendant had acknowledged and admitted in paragraph 43 of the amended statement of defence that the loan was granted to the Claimant as a staff loan since same was not a commercial loan at the time it was granted. Based on the admission, it is a trite position of the law that facts admitted need no proof, hence, this court finds it appropriate to grant relief 4 to the effect that this court makes:

“A declaration that the loan granted to the claimant by the defendant while the claimant was in the employment of the defendant was in the nature of staff loan and not in the nature of a commercial loan”.

Relief 5 is for “A declaration that the defendant is in breach of the Service Agreement dated 30th March, 2004”. In addressing this relief, I have mentioned in the course of resolution of issue two that the Claimant bears the burden to present the terms of contract of employment breached and to establish how same was breached by the employer. I also found that apart from exhibit C3 which mentions in paragraph 2 that “We enclose herewith Staff Pension Fund Form and Service Agreement Form for you to complete”, none of the evidence tendered by the Claimant is a copy of the Service Agreement which the Claimant alleged was not complied with in the termination of her employment.

In the light of the foregoing, it is more than clear that the Claimant has not only failed to present the Service Agreement dated 30^th March, 2004, she has also woefully failed to establish by any iota of evidence how the Defendant is in breach of the agreement.

Consequently, relief 5 lacks any form of proof and same is accordingly refused.

Relief 3 is for an Order of court directing the defendant to pay the claimant the balance of her salaries for March, April, May and June, 2011. There is no gainsaying that the grant of the said relief is dependent on the success or failure of the declaration sought in relief 1 in terms of 50% salaries paid to the Claimant by the Defendant.

Without much ado, this court has resolved that the Claimant has not placed any cogent, credible or convincing evidence before the court to establish that the Defendant is indebted to her for salaries for the stated months. Also, it is resolved that the claim for full salaries from the month the Claimant was suspended lacks merit in view of the provisions in Exhibit D10 which approves 50% of salary for staff on suspension for the first three months and zero pay for subsequent months.

In view of the foregoing, the claim made by the Claimant via relief 3 lacks merit and same is accordingly refused.

Relief 6 which is for “N900,000.00 damages against the defendant being for breach of the claimant’s service agreement” is also bound to fail in view of the fate of relief 5. Upon the failure of the Claimant to present a service Agreement dated the 30^th of March, 2004 and failure to establish how the said service agreement was breached, there is no gainsaying that there is no basis upon which damages for a breach can be predicated.

Consequently, relief 6 lacks merit in its entirety and same is accordingly refused.

In the final analysis, issue three is resolved largely against the Claimant as the claims of the Claimant is meritorious only in the extent to which relief 4 has been granted while other claims lack merit in their entirety and they are accordingly dismissed.

Judgment is accordingly entered in respect of the substantive suit.

I then turn to the Counter-claim. In this regard, it is trite that a Counter-Claim is an independent suit. The court in NWAENANG V. NDARAKE & ORS (2013) LPELR-20720(CA) posited that:

“…counter-claim is an independent action and not part of the original action, though for convenience the two are tried together. Thus, there is no separate hearing for a counter-claim. Usual practice is for the plaintiff to give evidence on his pleadings, which would include his reply to the counter-claim. Where a plaintiff fails to do so, he would be deemed to have abandoned his defence to the counterclaim.” Per OTISI, J.C.A. (P. 79, paras. A-C).

In the light of the foregoing, the Defendant/Counter-Claimant repeated the averments in the amended statement of defence in addition to separate facts in relation to the counter claim while the Claimant Defendant filed a defence to the counter claim along with the reply to the amended Statement of Defence and counter claim filed by the Defendant in the substantive suit.

Arising from the foregoing, the Defendant/Counter-Claimant is claiming against the Claimant/Defendant the following:

i) The sum of N1, 324,536.19 (One Million three hundred and twenty four thousand five hundred and thirty six Naira Nineteen kobo) being the outstanding indebtedness of the Claimant to the Defendant/Counter Claimant as at 30^thSeptember, 2013.
ii) Interest thereon at the rate of 35% per annum from the 1^stOctober, 2013 till judgment is entered and thereafter at 10% per annum till final satisfaction of the said debt.

iii) Cost of this counter claim action as follows — legal fees N1, 000,000.00 and filing fees as evidenced by the revenue receipt for filing.

The highlight of facts in relation to the claim is that the Defendant as the employer of the Claimant granted loan in the sum of N3,000,000 to the Claimant while she was in the employment of the Defendant and by the time she was dismissed from employment, her indebtedness to the Defendant arising from the loan stood at N745,300.82. Defendant contended that she was notified by a letter dated 19^th of September, 2011 that upon her exit, interest will be charged on the loan if not repaid. The Defendant added that she did not make the said payment and by 30^th of September, 2013, the sum had accumulated to N1, 324,536.19 and the Claimant has refused to liquidate same till date.

Defendant tendered Exhibit D13 which is the letter dated, 19^th September, 2011 and Exhibit D14(a) which is the statement of account of the Claimant.

Claimant in reaction stated that the loan was granted to her as a staff loan and not as commercial loan and at her exit, the loan becomes a bad debt which ought to be written off by the Defendant. she posited that the sum due was about N600,000.00 at the time of her suspension.

Counsel to the Defendant argued that there is no law that precludes a disengaged staff from paying a loan facility granted by the employer and the Defendant’s staff handbook requires disengaged staff to settle all indebtedness at the time of exit. Counsel posited that by Exhibit D13 and the admission of the Claimant that as at March 2011, the indebtedness was about N600,000, there is evidence before the court to grant the counter Claim.

In reaction, counsel to the Claimant contended that the Defendant bears the burden of proof and that there is uncertainty as to the balance that is outstanding in view of the Claimant’s admission that the sum is ‘about’ N600,000. He added that the Claimant had denied being served with the letter of 19^th September, 2011 and that the said letter was made for the purpose of this suit. counsel also argued that the burden is on the Defendant to establish that there was agreement for interest to be charged on the loan.

In view of the foregoing contention, the sole issue for determination of the counter claim is to wit:

whether or not the Defendant/Counter-Claimant is entitled to the counter claims

in resolving the sole issue, it goes without saying that the burden of proof rests on the Defendant/Counter Claimant as the court in the case of AFOLAYAN v. ARIYO & ANOR (2014) LPELR-22775(CA) held in this regard that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence.” Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B).

In consideration of whether the Counter Claimant has discharged the burden, I shal take into account each relief sought.

Relief 1 is for an order for the payment of the sum of N1, 324,536.19 (One Million three hundred and twenty four thousand five hundred and thirty six Naira Nineteen kobo) being the outstanding indebtedness of the Claimant to the Defendant/Counter Claimant as at 30^th September, 2013.

The controversy surrounding this claim is that while both parties are in accord that the Claimant took a loan from the Defendant during the course of her being in the Defendant’s employment, the parties are in disagreement as to the fact that the balance of the said loan should or should not attract interest in the way of a commercial loan.

In the face of the controversy, I have considered the evidence before this court and find that while the Claimant tendered no evidence whatsoever in relation to the loan transaction in the substantive suit, the Defendant tendered Exhibit D13 which is a letter dated the 19^th of September, 2011 and titled Re: Letter of Dismissal. Arising from the said letter, the Claimant was notified that her indebtedness to the Defendant is tentatively put at N745,300.82 and she is expected to pay of the balance immediately as the debit balance will continue to accrue interest at the prevailing commercial rate.

Perhaps the Claimant did not react to the letter as the said balance of N745,300.82 was accordingly placed into the Claimant’s account on the 14^th of October, 2011.

Claimant contended that she did not receive the said letter and her counsel also argued that the said letter was made in the course of trial for the purpose of this suit. However, I do not find the argument and contention to be plausible since the Claimant herself in the course of initiating the substantive suit reckoned through her statement of fact and witness statement on oath that the balance of her loan was dropped into her account and she knew from the onset that she was indebted to the Defendant at the time of her dismissal. Also, the statement of account shows clearly that the sum of N745,300.82 had been dropped into the account since October, 2011 while the substantive suit was instituted in April 2013.

I also do not find the basis upon which the Claimant expected the Defendant to write off her debt upon the determination of her employment irrespective of how her employment came to an end.

That notwithstanding, the burden is on the Defendant/Counter Claimant to establish the fact that as at the time the loan was created as a staff loan, it was agreed that upon cessation of the Claimant’s employment, the loan, or any balance arising therefrom, will be converted to a commercial loan and same would attract interest at the prevailing commercial rate. No such evidence is before this court.

Consequently, in the absence of such agreement as to interest on the loan or an agreement as to the conversion of the staff loan to commercial loan, the outstanding indebtedness of the Claimant to the Defendant/Counter-Claimant remains intact as it was at the time of the exit of the Claimant from the employment of the Defendant and same is as captured in Exhibit D13 and D14 to be in the sum of N745, 300.82. and not the sum of N1,324,536.19.

In view of the foregoing, relief one is granted to the extent that this court makes an order that the Claimant/Defendant pay to the Defendant/Counter-Claimant the sum of N745,300.82. (Seven Hundred and Forty Five Thousand, Three Hundred Naira and Eighty Two kobo) being the outstanding indebtedness of the Claimant/Defendant to the Defendant/Counter-Claimant.

Relief 2 is for an order for the payment of ‘interest thereon at the rate of 35% per annum from the 1^st October, 2013 till judgment is entered and thereafter at 10% per annum till final satisfaction of the said debt’.

In consideration of this relief which is in two limbs, I find that the 35% interest sought by the Counter Claimant is a prejudgment interest and in view of that, I must reiterate that there is no evidence before the court is support of an agreement over the rate of interest to accrue on the outstanding balance arising from the loan issued to the Claimant as a staff. The Defendant/Counter-Claimant has failed to present any evidence in support of the demand for 35% interest to accruing on the outstanding sum of N745,300.82 and the relief is to this extent refused. However, in view of the fact that second limb of the relief sought is a post judgment interest, I take into cognizance the provision of the rules of this court which in Order 47 Rule 7 stipulates that the Court may at the time of delivering judgment or making the order, give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.

In view of the foregoing provision and in view of the grant of relief 1, relief 2 is accordingly granted to the effect that this court makes “an order that the sum of N745,300.82. being the outstanding indebtedness owed to Defendant/Counter Claimant shall be payable within 60 days of the delivery of this judgment failure of which same shall attract interest at the rate of 20% per annum”.

Relief 3 is for cost of the counter claim which this court has discretion to grant or refuse. The court in Jaiyeola v. Abioye [2003] 4 NWLR (Pt.810)397 held that:

“The law is however also settled that costs are not meant to be a bonus to a successful party. It is also not meant to be as punitive measures. In making the award, the court must exercise the discretion conferred on it judiciously and judicially… the main aim of awarding cost is to relieve the successful party of his costs of the litigation he was unjustly put into by the unsuccessful party, the facts of each case must be taken into consideration in deciding whether the costs awarded is reasonable.” Per AKINTAN, J.C.A.(Pp. 28-29, Paras E-C).

In the circumstance of this case and particularly in view of the fact that the Defendant Counter-Claimant has not placed any material evidence in support of cost incurred, I find it most appropriate to exercise discretion in refusing the award of cost. Both parties are to bear their respective cost of this suit.

In the final analysis, the sole issue is resolved largely in favour of the Defendant/Counter-Claimant to the effect that in view of the evidence before the court, the Counter-Claimant is entitled to the reliefs that have accordingly been granted. Consequently, the case of the Defendant-Counter Claim is meritorious in the extent to which reliefs 1 and 2 have been granted.

Judgment is accordingly entered in respect of the Counter-Claim.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE