IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: November 05, 2018 Suit No: NICN/IB/14/2017
Between:
Suleiman A. Adigun —————————————————- Claimant
And
Keystone Bank Limited ————————————————— Defendant
Representation:
O.O. Ogungbade with Kelly O. Ogbe and O.A. Adenipekun for the claimant.
I.C. Ifediora with Ayodele Oguntimehin for the defendant.
COURT’S JUDGMENT
1. On February 16, 2017 the claimant filed this complaint against the defendant, seeking for the following reliefs:
A Declaration that the Defendant’s refusal to pay the Claimant his end of service benefits in line with the Policy as contained in the letter dated 8th November, 2013 and as practiced by the Defendant in her previous retrenchment exercise of employees; particularly that of July and November 2013 amongst others; is wrongful, oppressive, unfair and contrary to the Defendant’s Policy (HCP Manual Revised 2013); which envisage fair treatment and equality to all employed staff.
A Declaration that the Claimant is entitled to be paid a month’s Salary in Lieu of Notice in addition to other end of service benefits for failure of the Defendant to give the Claimant a Month Notice before the Defendant’s brought the Claimant employment to an end via the Letter dated 8th November, 2013.
A Declaration that the Defendant’s refusal to pay the Claimant his full end of service benefits in line with the Letter of Employment and the Defendant’s Policy Manual (Handbook regulating the contract of employment between the Claimant and the Defendant) amounts to a breach of contract of employment.
A Declaration that the Claimant is entitled to be paid his end of service benefits under redundancy as contained in the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013; to wit: the payment of monetary compensation of the sum of ₦8, 716,672.57K (Eight Million, Seven Hundred and Sixteen Thousand, Six Hundred and Seventy-two Naira, Fifty-seven Kobo) being the 75% of the gross annual salary (less tax and bonus) of a Senior Manager.
A Declaration that the Claimant is entitled to be paid his end of service benefits under the Gratuity Scheme having spent a minimum of 7 years in the services of the Defendant in line with the Defendant’s Policy Manual to wit: gratuity payment of the sum of ₦7, 933,333.31K (Seven Million, Nine Hundred and Thirty-three Thousand, Three Hundred and Thirty-three Naira, Thirty-one Kobo) being the 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the Defendant (7 years).
A Declaration that the Defendant’s refusal to pay the Claimant his total end of service benefits in the sum of ₦8, 716,672.57K + ₦7, 933,333.31K = ₦16,650,005.88K (Sixteen Million, Six Hundred and Fifty Thousand, Five Naira, Eighty-eight Kobo) in line with the Defendant’s Policy Manual (Handbook regulating the contract of employment between the Claimant and the Defendant) as at when due (exit date of November, 2013) amounts to a breach of contract of employment.
A Declaration that by virtue of the combined provisions of paragraphs 4.1.2, 5.2 – 5.4, 6.1 and 8.2 of the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013; the Defendant owes the Claimant a mandatory duty to furnish/advised the Claimant with an accurate computation of his final exit entitlement (severance/end of service benefit) and outstanding indebtedness of the Claimant to the Defendant (Mortgage Loan Balance) within two weeks after the disengagement of the Claimant from the employment services of the Defendant for the purpose of balancing of accounts and netting off.
A Declaration that the Defendant failed and wilfully neglected his duty to furnish/advise the Claimant with an accurate computation of his final exit entitlement (severance/end of service benefit) within two weeks after the disengagement of the Claimant from the employment services of the Defendant for the purpose of balancing of accounts and netting off.
A Declaration that it was wrongful for the Defendant not to have netted off the Claimant’s total indebtedness to the Defendant (Mortgage Loan Balance) from the total sum of ₦16,650,005.88K (being the Claimant’s total severance package) as at the time of exit (November, 2013).
A Declaration that it is wrongful for the Defendant to have continued to apply interest charges and other debits charges on the Claimant’s indebted sum to the Defendant (Mortgage Loan Balance) after the date of exit (November, 2013) when parties ought to have settled account as at the time of exit through the Defendant’s netting off policy as contained in the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013.
An Order directing the Defendant to pay the Claimant the sum of ₦8,716,672.57K (Eight Million, Seven Hundred and Sixteen Thousand, Six Hundred and Seventy-two Naira, Fifty-seven Kobo) being the 75% of his gross annual salary (less tax and bonus) as a Senior Manager.
PARTICULARS
Gross Annual salary——————– ₦14, 047,055.00K
(less tax and bonus)——————— ₦11, 622,230.10K
75% of ₦11, 622, 230.10K …….…….₦8, 716,672.57K
An Order directing the Defendant to pay the Claimant the sum of₦7, 933, 333.31K (Seven Million, Nine Hundred and Thirty-three Thousand, Three Hundred and Thirty-three Naira, Thirty-one Kobo) being 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the Defendant (7 years).
PARTICULARS
100% monthly total package————-₦1, 333,333.33K
number of years———–7
total sum———————————-₦7, 933,333.31K
An Order of General Damages in the sum of ₦2, 500, 000.00K (Two Million, Five Hundred Thousand Naira) for breach of contract of employment and the cost of litigation of this suit.
A Pre-Judgment interest of 20% on Claimant’s total end of service benefits in the sum of ₦16, 650,005.88K (₦8, 716,672.57K + ₦7, 933, 333.31K) from date of Exit (November 2013) till date of Judgment.
A Post-Judgment interest of 10% on the judgment sum from the date of judgment until final liquidation of the Judgment sum.
IN THE ALTERNATIVE
An Order compelling the Defendant to apply the netting off policy of the Defendant as contained in the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013, to wit: the deduction of the Claimant total indebted sum (Mortgage loan balance) at the time of exit from the Claimant’s full severance package of ₦16, 650,005.88K
An Order of Perpetual Injunction Restraining the Defendant or his Agent from selling or taking any steps against the property of the Claimant at No. 10A Shendam Road, Off Sokoto Road, Kaduna, Kaduna State (used as collateral for the Staff Mortgage Loan Facility) upon the settlement of the Claimant’s indebtedness through netting off of Claimant’s indebtedness (Mortgage Loan Balance) from Claimant’s severance package of ₦16, 650,005.88K (Sixteen Million, Six Hundred and Fifty Thousand, Five Naira, Eighty-eight Kobo)
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearances through its counsel and filed its statement of defence together with other processes in compliance with the Rules of this Court.
2. CLAIMANT’S PLEADINGS
The case of the claimant as pleaded is that he was formally an employee of the defendant before his employment was terminated on the ground that the claimant’s service is no longer required. He went on that Bank PHB Plc. was fully operational before it was nationalized by the Nigerian Deposit Insurance Corporation (NDIC) and the Central Bank of Nigeria (CBN) in 2011 to become the Defendant. That it is the practice of the Defendant in her retrenchment exercise of its employees to pay end of service benefits under redundancy to them when their services are no longer required. He continued that while the defendant paid 3 months’ basic salary in lieu of notice to him when his own service was determined, the defendant failed to pay him his end of service benefits under redundancy and gratuity.
3. DEFENDANT’S PLEADINGS
The case of the defendant as pleaded is that the Claimant was its former employee before his employment was terminated and that the claimant only worked with the defendant for a period of 2 years, 3 months and 3 days. The defendant avers that the Defendant’s HCM Policy Manual Revised in 2013 is not part of the Claimant’s contract and that this cannot be regarded as a new agreement entered into between the parties. The defendant went on that the claimant is not entitled to his claims before the court because he is only entitled to the 3 months’ salary in lieu of Notice paid to him out of the abundance of the Defendant’s heart.
During trial of the case, the claimant gave evidence as CW 1 while one Alabi Abimbola Adeola testified as DW1 on behalf of the defendant. Therefore, parties filed their final written addresses as directed by the Court.
4. COUNSEL TO THE DEFENDANT OBJECTION TO THE ADMISSIBILITY SOME OF THE CLAIMANT’S DOCUMENTS
On Documents C6, C7, C8, C9, C10, C10a, C10b, C10c, and C11
Counsel submitted that these documents relate to letters of Employment, Resignation letters and the Bank Account Statement of some ex- staff of the Defendant, which were not given to the Claimant but to third parties and that the defendant cannot cross examine the claimant on them. Therefore, he submitted that these documents offend sections 37 and section 83(1) of the Evidence Act, 2011.
On Documents C5, C12 and C13,
These are copies of Punch Newspapers of December 26, 2013, August 6, 2011 and October 1, 2013 respectively. Counsel to the defendant submitted that only a Certified True Copy of page 8 of Saturday Punch, August 6, 2011 is admissible in evidence and not its photocopy; regardless of whether Notice to produce was given or not or whether the document is produced or not. He referred the court to Ogbuninya v. Okudo (No.2) [1979] All N.L.R. 105; [1979] 6-9 S.C. 24; sections 2, 4 and 5 of the National Library Act of 1970 CAP N56 Laws of the Federation of Nigeria, 2004. He also urged the Court to reject Document C12 on the ground of same being a photocopy without any foundation.
On Document C.15; the AMCON Letter dated 24th January 2014. Counsel urged the Court to reject this document as only a photocopy was tendered without any foundation. That the Claimant cannot hide under a notice to produce as the Defendant does not possess and is not said to be in possession of the original.
On Document C.10a(i), C.10b(i), C.10c(i), C.11a and C.14; counsel submitted that these Documents are totally irrelevant to the Claimant’s rights since relevance is the primary condition for admissibility of evidence.
On Document C.17; the Collective Agreement between the Nigerian Employers Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) 2005, counsel submitted that the Claimant is not a party to this Agreement or document , hence same is a documentary hearsay evidence, citing Nyesom v. Peterside [2016] 2 SCNJ 208 and Shuaibu v. Nigeria – Arab Bank Ltd. [1998] 4 SCNJ 109.
On Document C21, the Purchase and Assumption Agreement between the Defendant and AMCON dated August 2011, counsel submitted that it is a public document by virtue of section 102(a)(ii) of the Evidence Act 2011, hence; it requires Certification.
On Document C3 and C18, a Memo on the subject: UPDATE ON STAFF WELFARE sent via e-mail to all Defendant’s staff dated December 13, 2011 at 7:15AM. and the claimant’s ‘end of service advice’; counsel submitted that Document C3 was sent to the Claimant’s colleague and not to the Claimant, therefore; same cannot be tendered by the claimant. Also that Document C3 is a computer generated document, which was tendered contrary to the provision of the Evidence Act, referring to sections 37 and 83(1) & (4) of the Evidence Act, 2011.
On the claimant’s additional list of Document, Documents: C16, C16A, C17, C17A, C18, C18A, C19, C19A, C20, C20A, C21 C22 and C23; counsel also urged the court to rejects these documents on similar ground of same not being tendered by their makers or owners and not being certified true copies.
6. RESPONSE OF THE CLAIMANT’S COUNSEL TO THE OBJECTION OF THE DEFENDANT TO THE ADMISSIBILITY OF THE CLAIMANT’S DOCUMENTS AND THEIR LIST
On the Defendant’s Objection to Documents C6, C7, C8, C9, C10(a), C10(b), C10(c), C11, C15 and C17 on ground of Documentary Hearsay; claimant’s counsel noted that these documents been attacked by the Defendant involve several persons including the Defendant and that going by the Defendant’s argument, the several persons must be called by the Claimant for the sole purpose of tendering the respective documents that relates to them. These several persons so involved are the Defendant and these other named people: (1) Lawani A. Adeyinka (2) Yakubu Suleiman Abdullah (3) Adesina Bimbo (4) Dada Lawrence Olufemi (5) Akiotu Solomon (6) Gbadamosi Waidi (7) Bashir Shuaibu (8) Mohammed Ciroma (9) Ifeanyi Onuba (10) Dr. Yerima Ngama- then Minister of State.
Counsel submitted that from the nature and the content of the documents in question, the law will not impose on the Claimant the onerous duty to call all twelve (12) witnesses for the sole purpose of tendering the documents through the makers and be cross-examined on the content in satisfaction of Section 83(1) of the Evidence Act in a civil action. To him this is where subsection section 83(5) of the Evidence Act also comes in for the court to draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances. He continued that it will be totally ridiculous to the practice and procedure of this Court which is in accord with principle of fair hearing, equity and international best practices. He further argued that by virtue of Section 83(2)(a) of the Evidence Act, 2011 the maker of a document need not come where undue delay or expense would be caused if he is to come and testify, referring to A.G. Oyo State v. Fairlakes Hotels (No.2) [1989] 5 NWLR (Pt. 121) 255 at 282 paras A-C.
6. On Defendant’s Objection to Documents C5, C12, C13 and C15 on the Ground that they are Photocopies; counsel submitted that an objection to secondary documentary evidence (photocopy) on the ground of failure to lay proper foundation before tendering same can only be done at the point of tendering and not thereafter. The law is trite that failure to raise such objection timeously at the point of tendering of a photocopy is taken as a waiver of right of objection because the essence of laying foundation is to assure the Court that indeed the original documents exist somewhere but out of the reach of the party who tendered the photocopies as secondary evidence. He referred the court to the cases of A.G. Oyo State vs. Fairlakes Hotels (No.2) (supra) at 273 para B and Kossen (Nig.) Ltd. v. Savannah Bank (Nig.) Ltd. [1995] 9 NWLR (Pt. 420) 439 at 453 paras E-F.
On Defendant’s Objection to Document C.21on the Ground that it was not properly certified as a Public Document, counsel contended that Document C.21 is a public document and same was properly certified in accordance with the Evidence Act. That the document has a customize CTC Certificate stamp which has the words Certified True Copy, Date, Name of the Officer Certifying and his designation, including his signature. It is not a requirement of the Evidence Act that the CTC Certification must be handwriting.
On Defendant’s Objection to Documents C3 & C18 on the ground of failure to comply with section 84(4) of the Evidence Act and Non-signature on Document C3; counsel argued that these documents being computer generated evidence need no physical signature but electronic signature, citing section 93(2)& (3) of the Evidence Act 2011
7. On Defendant’s Objection to Documents C10(a)(i), C10(b)(i), C10(c)(i), C11 and C14 on the Ground of Irrelevancy; counsel submitted that issue of relevancy of document to its admissibility cannot be considered in isolation from the pleadings of the parties and the reliefs sought. He maintained that once a document is pleaded it attains the status of being relevant, citing Okonji v. Njokanma [1999] 14 NWLR (Pt. 638) 250 SC.
On the Defendant’s Objection/Argument on Issue of Weight and Probative Value to be attached to the claimant’s documents; counsel to the claimant submitted that the issue of weight and the probative value that will be attached to the Claimant’s Documents has been settled by the pleadings of the parties; referring the court to Order 32 Rules 2 and 3 of the NIC Rules, 2017 and submitted that matters admitted in pleadings need no further proof because admitted facts cease to be facts in issue and that the law is also firmly established that admitted facts during evidence automatically establishes facts in issue and is deem proved, citing Asafa Foods Factory Ltd v. Alraine Nig. Ltd. Yusufu v. Kupper International N.V. [1996] 5 NWLR (Pt. 446) 17 at pp. 32-33, paras H-B; Asafa Foods Factory Ltd v. Alraine Nig. Ltd. (supra) at 775-776 paras H-A; Ordia v. Piedmont (Nig.) Ltd. [1995] 2 NWLR (Pt. 379) 516 at 528 paras B-C and Omorhirhi v. Enatevwe [1988] 1 NWLR (Pt. 73) 746.
Counsel went on that if any party against whom a document has been admitted wishes that the court should not rely on it, such a party should, at the trial, challenge its contents or at any rate lead contrary evidence to controvert its contents; otherwise the court will accord such documentary evidence its due weight as the Court is bound to accord all the Exhibits their due weights. He is of the view that the Defendant cannot challenge same at Final Addresses’ stage. He again contended that the court may, in the interest of justice, depart from the provisions of Evidence Act in considering the documents before it; referring to section 12(2)(b) of the NIC Act, 2006.
8. DEFENDANT’S WRITTEN ARGUMENTS
In his final written address, counsel to the defendant formulated the following issues for the determination of the Court:
Whether the Claimant who is literate and of full age is bound by Document C.2, his letter of Employment dated 5th August 2011 which he signed?
Whether the Claimant has been able to prove that his employment in 2006 by Bank PHB was transferred to Keystone Bank Ltd. in August 2011?
Whether the Claimant, who had been paid his benefits under his contract of Employment with the Defendant Keystone Bank can in February 2017; bring a suit claiming more benefits under the “Human Capital Policies and Procedures Manual” (hereafter called the HCPPM)?
Whether the Keystone Bank Human Capital Policies and Procedures Manual (HCPPM) Revised in 2013 forms part of the contract of Employment of the Claimant when it was not incorporated in the said letter of employment dated 5th August 2011?
Assuming while not conceding that the Keystone Bank HCPP Manual Revised in 2013 was part of the Claimant’s contract of employment, whether the Claimant has proved its claim for gratuity as provided in the said Keystone Bank HCPP Manual Revised in 2013?
Assuming while not conceding that the Keystone Bank HCPPM Revised in 2013 was part of the Claimant’s contract of employment whether the Claimant has proved that the Defendant terminated his contract of employment within the meaning of Redundancy as is contained in the Keystone Bank HCPPM Revised in 2013?
Where the contract of the parties provide for at least six (6) modes of terminating the contract whether it is proper for the employer to terminate under one mode?
Whether the Claimant can rely on the Collective Agreement between The Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) which provided for 75% of gross annual salary (less tax and bonus) as end of service benefits for employees in the grade level of the Claimant?
Whether the Claimant has proved his principle as stated in sub-paragraphs 86xi and 86xii of his claims before the court?
Whether the Claimant and the Defendant in this case are bound by their contract (Document C.2) or by the terms of settlement (consent judgment) entered in respect of some ex-staff of the Defendant who went to court?
9. Arguing the first issue of whether the claimant is bound by the contract he signed, counsel contended that the Claimant is an adult of full age and that he is literate who signed the duplicate copy of his letter of Employment dated 5-8-11 (Document C.2) and that he is; therefore, bound by the contents of the document except in cases where fraud, deceit or misrepresentation are established; which is not so in this case. Counsel referred the Court to the case of Omiyi v. Alabi [2015] 2 SCNJ 494.
Arguing issue two of whether the Claimant was been able to prove that his employment of 2006 with Bank PHB was transferred to Keystone Bank Ltd. in August 2011; counsel referred the court to paragraphs 17 and 18 of the Statement of facts, paragraph 5 of the Statement of Defence and the Claimant’s Reply to the Defendant’s Statement of Defence and submitted that the Defendant joined issues with the Claimant on hid claim that his employment was transferred from Bank PHB to the Defendant Bank. Counsel went on that neither Document C2, the Defendant’s letter of August 5th, 2011; nor any other Document from the defendant to the claimant states the said transfer. To counsel, Document C.2 is the foundation of the relationship or Agreement between the parties and it is to the effect that the Claimant was employed on 5th August, 2011.
10. On Document C.3, the memo on ‘Update on Staff Welfare’ counsel urged the Court to note that this document bears no name and it is not signed. Hence it has no evidential value citing Omega Bank Nig. Plc. v. O.B.C. Ltd. [2005] 1 S.C. (Pt. 1) 49 at 73. Counsel went on that while Document C.18, the end of service advice from Keystone Bank Limited; is to the effect that the Claimant resigned instead of the fact that his employment was terminated. Counsel went on that Documents C.5 and C.12 are photocopies of pages of a newspaper, which is a public document; hence they are inadmissible because they are not certified. But assuming they are admissible in evidence, counsel argued that they are hearsay. On Document C.21 (Purchase & Assumption Agreement), counsel submitted that same is a Public Document which is not certified. He further submitted that the Claimant cannot rely on that document for anything whatsoever even if the said document gave him a benefit by virtue of the principle of privity of contract, citing the cases of Basinco Motors Limited v. Woermann-Line and Another [2009] 6 SCNJ 222 and Akauve Moses Osoh and others v. Unity Bank Plc. [2013] 2 SCNJ 1083. He also referred the Court to page 28 of Document C.21 under the heading MISCELLANEOUS; clause 9.1, where it is stated that any Asset not expressly purchased and liability not expressly assumed under this assumed under this (sic) Agreement has not been purchased or assumed respectively.
Furthermore, counsel submitted that Document C.2 is the foundation of the Claimant’s case and that without it the Claimant’s case will be dismissed without going into the merits of his case, citing Aji v. Chad Basin [2015] 3 SCNJ 392; as the law does not allow extrinsic evidence to contradict a written Agreement. He referred in support to section 128(1) (a) (b) (c) (d) of the Evidence Act 2011.
11. Counsel again submitted that of all the Documents relied upon by the Claimant, it is only Document C.3 that stated that Keystone Bank Ltd, the Defendant, “has assumed the years of service of all legacy staff”. He maintained that this document does not use the word “transfer” but the word “assume”. Counsel contended that admissible documents must be construed together to determine the contract, citing Koiki & ors v. Magnuson [1999] 5 SCNJ 298; Delek Nig. Ltd. v. OMPADEC [2007] 2 SCNJ 218; Yadis Nig. Ltd. v. GNIC Ltd. [2007] 5 SCNJ 86 Okonkwo v. Co-operative and Commerce Bank Plc. &ors [2003] 2 SCNJ 90; Baliol Nig. Ltd. v. Navcom Nig. Ltd. [2010] 5 SCNJ 125; Adesoye Olanlege v. Afro Continental Nig. Ltd. [1996] 7 SCNJ 145; International Messengers Nig. Ltd. v. Pegofor Industries Ltd. [2005] 5 SCNJ 120. Counsel submitted that parties are bound by their contract as represented by Document C.2 and that the Court lacks the power to re-write the agreement of parties, citing Okechukwu v. Onuorah [2000] 12 SCNJ 146 (b) Anyaegbunam v. Osaka [2000] 3 SCNJ 1(c) Nigerian Bank for Commerce and Industry v. Alfijir (Mining) Nig. Ltd. [1999] 12 SCNJ 249; Afrotech Pechnical Services (Nig.) Ltd. v. MR & SONS Ltd. [2000] 12 SCNJ 298; Evbuomwon v. Elema [1994] 7-8 SCNJ 243.
On the plea of the Claimant that the Defendant is estopped by Document C3 and some other documents from stating that the Claimant’s employment with Bank PHB was not transferred to Keystone Bank Limited, counsel submitted that estoppel is generally utilized as a shield and not a sword and that estoppel cannot be used to found a cause of action unless it is supported by consideration, which is not the case here; citing Abalogu v. SPDC of Nigeria Ltd. [2003] 6 SCNJ 262.
12. Arguing issue three of whether the Claimant who had been paid his benefits under his contract can bring a suit claiming more benefits under the “Human Capital Policies and Procedures Manual; counsel contended that Claimant’s employment was determined vide Document C.4 and that he was paid three (3) months’ salary in lieu of notice on 24-1-2014. To counsel, the Claimant was supposed to be paid only one (1) month salary in lieu of notice by the content of Document C.2 but he was over paid three months’ salary out of the defendant’s magnanimity. He continued that the Claimant did not protest his end of service entitlement either orally or in writing when the money paid until it finished, more than three (3) years after the payment, the Claimant brought this suit saying that his contact of employment was wrongfully terminated, and claiming more benefits. Counsel maintained that it is the law that the effect of accepting the termination of employment is the validation of the termination, citing Morohunfola v. Kwara State College of Technology [1990] 7 SCNJ 51.
Arguing issue four of whether Keystone Bank Human Capital Policies and Procedures Manual (HCPPM) Revised in 2013 forms part of the contract of Employment of the Claimant, counsel submitted that this Manual was not incorporated into the contract of employment between the Claimant and Keystone Bank Limited dated 5th August, 2011; therefore, it is not binding on the Defendant; citing Friday U-Abalogu v. The Shell Development Co. of Nigeria Limited [2003] 13 NWLR (Pt. 837) 309 or [2003] LPELR -18 (SC). He continued that the word “expected” as used in the contract of employment dated 5-8-2011 under clause 1: Code of Conduct, means that it does not bind the employer. The employees are only expected to comply with the Bank’s code of conduct, rules and regulations.
13. Arguing issue five of whether the Claimant has proved his claim for gratuity as provided in the said Manual, counsel went on that assuming that Manual is part of the Claimant’s contract; he submitted that there is no provision in the Manual for payment of gratuity to any staff who has spent less than five (5) years with the Bank, referring to page 28 of the HCPP Manual, Clause 5.1. He that the Claimant’s contract of Employment is dated 5-8-2011; Document C.2 and his letter of termination was with effect from 8-11-2015. He concluded that the Claimant; therefore, did not spend up to five (5) years with the Defendant. Also, counsel submitted that the Defendant Bank was given Banking license by the Central Bank of Nigeria on 5-8-2011. And so, the Claimant spent exactly 2 years 3 months and 3 days including day his employment was terminated with the defendant. Counsel continued that there is nothing in Clause 5.1 of the Manual stating that if a staff is transferred from another Bank to Keystone Bank Ltd. his period of service in the other Bank will count as the number of years he spent in Keystone Bank Ltd. To him, Clause 5.1 is specific; it is the number of years spent in the Defendant Keystone Bank Ltd. that entitles the Claimant to gratuity. Hence, he submitted that the Claimant is not entitled to payment of any gratuity.
Arguing issue six of whether the defendant determined the claimant’s employment as a result of redundancy under the Manual, counsel contended that the claimant did not plead that the Defendant declared him Redundant or that he could not be placed in another position based on his training, experience or qualifications. The Claimant did not plead that there was contraction of available work the cause, which is beyond the control of the Bank. He went on that the Claimant did not plead that his job was eliminated due to organizational or technological changes neither did he plead that there was technological changes that affected his work. He referred the Court to paragraphs 35, 38, 48c and 48d of his Statement of Facts dated 16-2-2017.
14. Arguing issue seven where the contract of the parties provide for at least six (6) modes of terminating the contract, whether it is proper for the employer to terminate under one mode; counsel submitted that both the Document C.2 – the letter of employment of August 2011 and the Manual (Document C.16) provides for different ways of determination of the contract between the parties; thus, where the Defendant terminated the Claimant’s employment under one of the modes, the Claimant’s employment was properly terminated; citing Katto v. CBN [1999] 5 SCNJ 1.
Arguing issue eight of whether the Claimant can rely on the Collective Agreement between The Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI); counsel referred the Court to paragraph 32 of the Statement of Facts and submitted that the Collective Agreement between NEABIAI and ASSBIFI if not incorporated into an employment contract does form part of the contract of employment. That Document C.17 will not form part of Document C.2 since Document C.17 is not incorporated either expressly or by implication into Document C.2, citing Abalogu v. The Shell Petroleum Development 10 of Nigeria Ltd. [2003] 13 NWLR (Pt. 837) 309; [2003] 6 S.C. (Pt. 11) 19 and Shuaibu v. Nigerian – Arab Bank Ltd. [1998] 4 SCNJ 109.
15. Arguing issue nine of whether the Claimant has proved his principle as stated in sub-paragraphs 86xi and 86xii, counsel submitted that while paragraph 48h of the Manual is based on Redundancy paragraph 48i is based on gratuity. He contended that the Claimant has failed to prove Redundancy the Manual and even if the Claimant has proved Redundancy, he is not entitled to 75%. At best he would have been entitled to 50% since he is not of the Grade Level of AGMs and above. In respect of paragraph 48i of the Manual; the Claimant has not spent up to 5 years in the Defendant bank. Therefore his claim for gratuity must fail as he is not entitled to any gratuity because he spent just less than three years with the defendant. The effect is that the claims under paragraphs 86xi and 86xii of the Manual are principal; since these claims have failed, all the other claims will also fail.
Arguing issue ten of whether the parties are bound by their contract in Document C.2 or by the terms of settlement (consent judgment) entered by the defendant with some of its ex-staff, counsel submitted that the Claimant is bound by the content of Document C.2 and not by extraneous facts such as the Terms of Settlement filed in other cases of ex – employees. He maintained that there is sanctity of contracts, privity of contracts and the exclusion of extraneous facts upon which the parties do not agree. He finally urged the Court to dismiss the claimant’s suit.
16. CLAIMANT’S WRITTEN ARGUMENTS
Counsel to the claimant filed his final written address and formulated the following issues for determination of the court:
Whether the Claimant’s date of joining the Defendant’s employment is February 2006 or August 5, 2011.
Whether the circumstances surrounding the Claimant’s exit from the Defendant’s employment via EXHIBIT C4 amounts to redundancy as contemplated in the contract of employment and recognized globally.
IN THE ALTERNATIVE to (ii): Whether the Claimant is entitled to award of compensation or damages for wrongful termination of employment via EXHIBIT C4 under Section 19(d) of the NIC Act, 2006
17. Arguing the first issue of when the claimant’s employment with the defendant commenced, counsel referred the court to paras. 6, and 10, 11-27 of the Statement of facts; paras 8-10 of CWSO and EXHS. C.2, paragraphs 1-3 of the defendant statement of defence and contended that the Defendant joined issues with the Claimant in its pleadings but that the Defendant’s Witness did not challenge or contradict the above evidence in his Witness Statement on Oath. To counsel, this evidence was admitted by the Defendant; citing Oguma v. I.B.W.A. (supra). On EXHS C12, 13(a), C15 & C21; counsel submitted that the Defendant was established without any assets of its own or its own employees but was simply created for the sole purposes of carrying on and continuing the banking business of Bank PHB Plc. and to assume all the recorded deposit liabilities and other liabilities of Bank PHB Plc. including the employment agreement between Bank PHB Plc. and its staff. That the Claimant on the dates of his employment (February 2006) and the fact that his employment was transferred to the Defendant very probably since Claimant is only expected to prove his case on the basis of probability, citing L.S.B.P.C. v. Purification Tech. (Nig.) Ltd. [2013] 7 NWLR (Pt. 1352) 182; Registered Trustees, L.C.N. v. Obat [2009] All FWLR (Pt. 477) 67 at pp. 88 – 89; section 566 of Companies and Allied Matters Act (CAMA, CAP. C20) Laws of Federation of Nigeria, (2010).
18. Counsel submitted that the absence of any letter expressly determining the employment of the Claimant by either Bank PHB Plc. or NDIC before EXH. C2 was issued by the Defendant and with the Defendant’s explanation in EXH. C4 is proof that the Claimant’s employment was transferred from Bank PHB Plc. to the Defendant without any break in employment and that EXH. C2 was only a confirmation of the transfer.
On Employer’s Successor Clause Contained in EXH C.21 (a) (PAA Agreement), counsel referred the court to Clause 4.3 of EXH. C.21 (a) at page 15 that same provides for the transfer of all employment contracts from the erstwhile staff of Bank PHB Plc. to the Defendant if the Defendant fails to communicate to NDIC by WRITTEN NOTIFICATION within ninety (90) days specifying whether it elects to assume or not to assume such employment contract between Bank PHB Plc. and its staff.
19. On EXHIBITS C1, C2 and C3 counsel conceded that the content of doc.C1 contains grade level of “Senior Executive Associate” while doc C2contains grade level of “Senior Manager”. That the defendant by Doc. C3; assuaged the contention of the Defendant at paras 3.7 & 3.8 that there was a manifestation of clear intention by the parties and the meeting of minds of the parties as to the terms contained in doc. C2 and the voluntariness of the parties to the contract cannot be correct. That the use of the words “RE: EMPLOYMENT” in doc C2 portend that there was already an existing employment somewhere that is why RE: is being used. If it is not so the word ‘RE’ would not have been used in the title of the letter because it is not used for a new employment. He went on that the word ‘RE’ is used as heading to introduce a reference and that the use of RE: in the title in EXH. C2 is consistent with title of standard letters of employment when there is a transfer of undertaking or consolidation, merger or acquisition; citing Mr. David E. Ukaa & Ors v. Access Bank Plc. in Suit No: NICN/LA/198/2011; delivered 2015-10-14 by the Lagos Division: Per Hon. Justice O. O. Oyewumi; MOHAMMED ZUBAIR vs. KEYSTONE BANK LTD with Suit No. NICN/IB/54/2016; F.B.N. Plc v. M.O. Nwadialu & Sons Ltd. [2016] 16 NWLR (Pt. 1543) 1 C.A at p. 48 para H; Oyeyemi v. Commissioner for Local Govt., Kwara State [1992] 2 NWLR (Pt. 226) 661 at 680 paras D-F. Ezeonwu v Onyechi [1996] 3 NWLR (Pt 438) 499 and Mr. Vincent Ike v. Fidelity Bank Plc. in Suit No: NICN/LA/598/2013. He also cited Sections 84 and 85 of the Evidence Act, 2011. Counsel continued that there is a cardinal presumption that parties are presumed to have intended what they have in fact said, so that their words as they stand must be construed in the language it will admit to be the clear intent of the parties.
He urged the court to consider Documents: C1, C2, C3, C12, C13, C15, C18, 19 and C21 in determining the date that the Claimant joined the services of the Defendant in order to determine whether the Claimant has spent more than five (years) particularly seven (7) years in the services of the Defendant as to be entitled to his gratuity Claim in the sum of ₦7,933,333.31K (Seven Million, Nine Hundred and Thirty-three Thousand, Three Hundred and Thirty-three Naira, Thirty-one Kobo) being the 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the Defendant (7 years); referring to the Defendant’s Handbook (Doc. C16 at page 28 Clause 5.0-5 –Gratuity Scheme), paragraph 58 of the Claimant’s Statement of Fact, page 5 of EXH. C2 (Offer Letter of August 5, 2011) containing the Claimant’s Annual Remuneration in a total sum of ₦14,047,055. (Fourteen Million, Forty-seven Thousand, Fifty-five Naira); Eze & 147 Ors. v. Governor of Abia State & 2 Ors. [2014] 14 NWLR (Pt. 1426) 192 at 217-218.
20. Arguing issue two of whether the claimant is entitled to Redundancy payment, counsel contended that at paragraphs 44 – 52 of the Statement of Facts the claimant avers that himself with 34 of his colleagues were disengaged by the Defendant via letters dated November 8, 2013; with the subject: ‘Service No Longer Required’. To him, this means Redundancy. Also in paragraphs 29 – 42 of the Statement of Facts, the Claimant avers that it is a standard practice of the Defendant to disengage its staff through retrenchment; which again means redundancy in the Defendant’s HCM Policy Manual and that the affected staff were usually paid end of service benefits under “Redundancy” as provided in the Defendant’s Policy Manual. Furthermore, counsel referred the court to paragraphs 36 and 39 of the Statement of Facts contended that the Claimant gave evidence on how the Defendant had applied Retrenchment/Redundancy policy its employees who left the Bank in the past and even showed what those employees were paid as provided in Document C.16 particularly at pages 80 – 81 clause 8.2 of this document. Counsel continued that by Document C.18; which is the Claimant’s End of Service Advice issued by the Defendant, it is stated that the Claimant’s exit from the Defendant was by resignation and not termination, and the Defendant did not challenge neither did it contradict this evidence.
On the Position of the Law on Retrenchment/Redundancy, counsel referred the Court to Sections 7(6), 13 and 15 of the NIC Act, 2006; section 20 (3) of the Labour Act and to the cases of: Evans Bros. (Nig.) Ltd v Falaiye [2003] 12 NWLR (Pt. 838) 564 at 588; Mbilitrem v Unity Kapital Assurance Plc. (supra); Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria v. Management of Transaltic Nigeria Limited [1988] Unreported Suit No. NIC/14/87; Akinsete v. Westergeco Seismic Nig. Ltd. [2015] 56 NLLR (Pt. 191) 297; Mr. David E. Ukaa&Ors v. Access Bank Plc. unreported Suit No: NICN/LA/198/2011 delivered on 2015-10-14 by Hon. Justice Oyewumi O.O. Further, counsel submitted that the Claimant is a member of ASSBIFI which makes Document C.17 to be applicable to him, referring to paragraphs 30 – 33 of the Statement of Facts.
On Judicial Application of the Concept of Ex-Gratia, counsel submitted that the mere use of the phrase ex-gratia is not intended and cannot be interpreted to mean that it should have no binding effect as the facts and circumstances surrounding its use must be taken into consideration.; referring the court to the cases of: Edwards v. Skyways Limited [1964]1 All E.R 494 at 500; Registered Trustees of Union Bank & Another v. Union Bank & Others [2015] 56 NLLR (Pt. 190) 78 NIC.
21. Arguing issue three of whether the claimant is to be paid compensation for wrongful termination of his appointment, counsel submitted that if the Claimant’s relief for Redundancy payment fails, the court is enjoined under Section 19(d) of the NIC Act, 2006 to consider paying him compensation or damages for wrongful termination of his employment; referring to Mr. Vincent Ike v. Fidelity Bank Plc. (Unreported) in Suit No: NICN/LA/598/2013; delivered on 2015-11-19 by Hon. Justice J. D. Peters; Akinsete v. Westergeco Seismic Nig. Ltd. (supra) and Industrial Cartons Ltd v NUPAPPW [2006] 6 NLLR (Pt. 15) 258. He also cited section 254C (1)(f & h) of the 1999 Constitution as amended and sections 7(6), 13, 15 and 19 of the NIC Act, 2006.
On Claimant’s Claim of N2.5 Million for Damages for Breach of Contract, counsel submitted that, counsel canvassed that if any of the Claimant’s main reliefs succeed either in whole or in part, the Claimant will ordinarily be entitled to damages for breach of contract. To him, failure of an employer to pay an employee all his terminal benefit/entitlement upon the determination of the employment as provided for in the contract of employment is a breach of that contract of employment; citing Julius Berger Nig. Plc. v. Nwagwu [2006] 12 NWLR (Pt. 995) 518 and LUTH & M.B. v. Adewale [1998] 5 NWLR (Pt. 550) 406; Ijebu Ode Local Government v. Adedeji Balogun & Co. [1991] 1 NWLR (Pt. 166) 36; Bello v. AG Oyo State [1986] 5 NWLR (Pt. 45) 828; UBN Ltd. v. Odusote Book Stores Ltd [1995] 9 NWLR (Pt. 421) 558.
22. COURT’S DECISION
I have carefully read through the facts of this case as pleaded and the evidence thereon, I have also carefully considered the arguments of counsel to the parties; from all of this, I am of the firm view that the following issues are to be resolved within the parties:
Whether or not the objection of the defendant to the claimant’s documents can be sustained.
Whether or not the Claimant’s date of employment with the Defendant is February 15, 2006 or August 5, 2011.
Whether or not the defendant’s Human Capital Policies & Procedure Manual Revised, 2013 (Document C.16) is part of the Terms and Conditions of the contract of employment between the parties.
Whether or not the Claimant’s exit from the Defendant’s employment was as a result of redundancy as contemplated in his contract of employment or in any of the lay down ways of determining his employment as stated in the terms and conditions of his contract.
Whether or not the claimant is entitled to payment of gratuity.
23. ON THE OBJECTION OF THE DEFENDANT TO THE ADMISSIBILITY OF SOME OF THE CLAIMANT’S DOCUMENTS.
In all, the claimant tendered in evidence 21 documents as exhibits; they are Documents C.1 to C.21, see pages 48 to 264 and 361 to 396 of the Court’s record. However, the defendant is objecting to 18 out of these documents; they are: Documents C.3, C.5, C.6, C.7, C.8, C.9, C.10, C.10(a), C.10(b), C.10(c), C.11, C.11(a) C.12, C.13, C.14, C.17, C.18 & C.21.
The defendant objected to Documents C.6, C.7, C.8, C.9, C.10, C.10 (b), C.10(c) & C.11 on the ground that they relate to the Resignation, Termination and Bank Account Statements of some ex-staff of the defendant and that the claimant is not their owner or maker; hence, by tendering them in evidence through the claimant, the defendant will not be able to cross-examine the claimant on those documents. Counsel to the defendant urged the Court to reject them in evidence for offending the provisions of sections 37 and 83(1) of the Evidence Act. Section 37 of the Evidence Act is on hearsay evidence, while section 83(1) of the Evidence Act is on Admissibility of documentary evidence generally. It is my considered view that calling all the persons involved in the making and receiving of the documents in question for the sole purpose of proving their contents will be cumbersome and this will unnecessarily prolong the proceedings. In so far as the defendant’s counsel is not challenging the authenticity of these documents, it is my finding that the provision of section 12 (2) of the NIC Act, 2006 allows this Court to depart from the provisions of the Evidence Act by admitting the said documents the way the Court did in the interest of justice and I so hold.
24. Defendant’s Objection To The Admissibility of Documents C5, C12, C13
These are newspaper publications. Document C.5 is the Press Release published in Nigerian Punch Newspaper of December 26, 2013; at page 62 of the record. Document C.12 is an Article in Saturday Punch Newspaper of August 6, 2011 at page 138 of the record; while Document C.13 is another Article in Punch Newspaper of October 1, 2013 at page 139 of the record. Here the defendant’s counsel contended that sections 2, 4 and 5 of the National Library Act of 1970 CAP. N56 Laws of the Federation of Nigeria, 2004 provides that the National Library and all its branches in all States of Nigeria have the custody of Newspapers and can give Certified True Copies thereof. However, section 2 of this Act is on the Functions and Powers of the National Library Board, section 4 of the Act is on Deposit Obligations and section 5 of this Act is on the general financial provisions. In essence, these sections were wrongly cited and they are not applicable to the issue of admissibility of photocopy of pages of a newspaper under which they were cited and I so hold. I further hold that this objection was not satisfactorily argued by the defendant and the objection is accordingly dismissed. I again hold that the three documents were properly admitted in evidence by the Court.
ON THE ADMISSIBILITY OF DOCUMENT C.15
This Document is a photocopy of the reply by AMCON to a letter written to it by the Claimant’s counsel. The main reason for this objection by the defendant is because it is a photocopy. This being the only reason, I find and hold that the defect is cured by the provision of section 12 (2) of the NIC Act, 2006 and that the said document was properly admitted in evidence in this case.
25. ON THE ADMISSIBILITY OF DOCUMENTS C.10(a)(i), C10(b)(i), C10(c)(i), C11(a)
From the Court’s record on this case, there are no documents marked as C.10(a)(i), C10(b)(i) and C10(c)(i) before the Court. What the Court has are C.10(a), C10(b) and C10(c); these are the letters of termination of some ex-staff of the defendant like the claimant and their consent judgment with the defendant from the National Industrial Court of Nigeria. The defendant’s ground of this objection is that the documents cannot form the basis for determining this case as they are not part of the terms of the claimant’s contract of employment. In my considered opinion, this is not a valid ground for this objection as this reason only affects the weight to attach to the documents, which will be resolved on the merit of the case and I sold hold. In addition I further hold that this objection lacks merit and it is accordingly dismissed.
ON THE ADMISSIBILITY OF DOCUMENT C.14
This document is the letter written by the claimant’s counsel to AMCON dated January 24, 2014. To the defendant, this document was not written by the Bank neither was it copied to the Bank, so it is not relevant to the case. It suffices to say here that the document was pleaded in paragraph 15 of the Statement of Facts and paragraph 15 of the Written Statement on Oath of the claimant. Therefore, I find and hold that this document is relevant and the weight to attach to it will be determined on the merit of the case. In the circumstance, this objection is overruled and dismissed.
ON THE ADMISSIBILITY OF DOCUMENT C.17 – The Collective Agreement.
This is the Collective Agreement between the Nigerian Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), 2005. The defendant contended that the claimant was not a party to the agreement hence; tendering it amounts to hearsay evidence and urged the Court not to attach any probable value to it. Even though this document was pleaded in paragraph 38 of the Statement of Facts and testified on in paragraph 38 of the written statement on oath of the claimant, it is not incorporated in the letter of employment of the claimant by the defendant. This is because, for a collective Agreement between Organization and Trade Union to be enforceable between the employer and employee, it must be incorporated in the contact; see Chukwuma-Eneh, JSC’s holding in the case of Osho & Ors v. Unity Bank Plc. [2014] 46 NLLR (Pt. 148) 164 at 213-214 (SC). Therefore, I find and hold that this document is not applicable to this case as it does not bind the defendant in respect of the claimant’s employment with the bank. This objection is accordingly upheld and Document 17, the Collective Agreement is hereby struck out.
26. ON THE ADMISSIBILITY OF DOCUMENT C.21
This document is the Purchase and Assumption Agreement dated August 2011 between the defendant and the Nigeria Deposit Insurance Corporation (NDIC). The basis for this objection is that the claimant is not part of this agreement, the document is not properly certified and that it is not relevant to this case. In paragraphs 17 to 19 of the Statement of Facts, this document is pleaded and evidence was given on it in paragraphs 17 to 19 of the written statement on oath of the claimant. This makes the document relevant and applicable. Again by the provisions of section 106 (a) (ii) of the Evidence Act, this document is simply required to be certified by the appropriate authority without further stating the steps to be taken for the certification and by section 146 (2) of the Evidence Act, the Court is allowed to presume that the document is properly certified if there is evidence of certification on it except if the contrary is proved. In the instance case, there is a stamp on the document as evidence of certification, thus; I find that the defendant has not satisfactorily proved that this document was not properly certified since it could not show the Court the legal authority for this objection. Therefore, this objection is overruled and dismissed. Additionally, I hold that Document C.21 was properly admitted in evidence in this case.
27. ON THE ADMISSIBILITY OF DOCUMENTS C.3 & C.18.
Document C.3 is the Memo on the subject: ‘Update on Staff Welfare’ sent via e-mail to all staff of the Defendant from the Defendant’s Corporate Communications on Tuesday, December 13, 2011 at 7:15AM; while Document C.18 is the Claimant’s ‘End of Service Advice’ sent to the claimant via e-mail from the Defendant’s HCM Contact Centre on Fri, Jan. 24, 2014. The defendant is objecting to the admissibility of these documents on the ground that section 84(4) of the Evidence Act was not complied with as the claimant did not issue certificate of compliance. As I have held earlier in this judgment, if that is the only reason for this objection, I hold again that the provision of section 12(2) of the NIC Act, 2006 cures this defect; because this provision allows the court to depart from the Rules of evidence in order to better serve the interest of justice. This objection is overruled and dismissed; I further hold that Documents C.3 & C.18 were properly admitted in evidence.
On the whole, the objection of the defendant’s counsel to Document C.17; the Collective Agreement is sustained and the document is accordingly struck out. The objection of the defendant’s counsel to Documents: C.3, C.5, C.6, C.7, C.8, C.9, C.10, C.10(a), C.10(b), C.10(c), C.11, C.11(a) C.12, C.13, C.14, C.18 & C.21 is hereby overruled and dismissed. I further hold that these documents were properly admitted in evidence as exhibits in this case.
28. WHETHER THE DEFENDANT’S HUMAN CAPITAL POLICIES & PROCEDURE MANUAL REVISED, 2013 (DOCUMENT C.16) IS PART OF THE TERMS AND CONDITIONS OF THE CONTRACT OF EMPLOYMENT BETWEEN THE PARTIES.
The argument of the defendant’s counsel is that this document is not incorporated into the contract of employment between the parties dated August 5, 2011 and he urged the court to hold that since the Manual was not so incorporated into the contract of employment, it is not binding on the Defendant. But the claimant contended that this document contains part of the claimant’s terms and conditions of his employment with the defendant.
The letter of the claimant’s employment with the defendant is marked as Document C.2 in this case; it is dated August 5, 2011 and it is at pages 54 to 58 of the Court’s record. At page 2 of this Document is a sub-title: ‘Terms of Employment’; the first term under it is Code of Conduct. This term states in part:
All employees are expected to comply with the Bank’s code of conduct, rules and regulations as contained in the Human Capital Staff Policy and all such other circulars and policy statements that may be issued from time to time.
In my considered view, Document C. 16 is the Human Capital Staff Policy mentioned in Document C.2, which the claimant was expected to comply with together with the rules and regulations contained/stated therein as part of the terms and conditions of the contract of his employment; contrary to the argument of counsel to the defendant. Therefore, I find and hold that Document C.16 contains parts of the terms and conditions of the contract of employment between the parties.
29. WHETHER THE DATE OF EMPLOYMENT OF THE CLAIMANT WITH THE DEFENDANT WAS FEBRUARY 15, 2006 OR AUGUST 5, 2011.
To the defendant’s counsel, the claimant’s employment with the defendant commenced vide Document C.2 on August 5, 2011; while the position of the claimant’s counsel is that the said employment commenced on February 15, 2006 because the claimant’s former employment with Bank PHB that was acquired by the defendant was also transferred to the defendant.
Document C.2 is titled “Re: Employment”. The word ‘Re:’ means; ‘in the matter of’ (used typically as the first word in the heading of an official document or to introduce a reference in a formal letter). See The Oxford Living Dictionary of the Oxford University Press, 2018. Other words with similar meanings with ‘Re’: are: ‘concerning’, ‘regarding’, ‘about’, ‘on the subject of’, ‘with regards to’ and ‘with reference to’. The word “Re:” is not used to title a letter/Memo or a Formal correspondence on a fresh subject matter. It is an Administrative or Executive word only used to refer to a previous subject matter. Therefore, I find that this title on Document C.2 connotes that there was already an employment in existence that is being referred to here and that it was in reference of that previous employment that Document C.2 was issued. It is to be noted that from the evidence before the Court in relation to the claimant, there is no other employment prior to the one stated in Document C.2 other than the one stated in Document C.1 of February 15, 2006 with Bank PHB. In the circumstance, I find and hold that Document C.2 was issued by the defendant with reference to the claimant’s employment that was with effect from February 15, 2006.
Furthermore, Document C.3 before the Court is an email memo/correspondence from the defendant’s HCMD to all staff of the defendant. It was issued from Corporate Communications of the defendant and it is titled: ‘Update on Staff Welfare’ on December 13, 2011; see pages 59 to 60 of the record. Paragraph 2 of this correspondence is sub-titled – ‘Probation and Years of Service’; it states:
No staff from the erstwhile Bank is on Probation. Keystone Bank has assumed the years of service of all legacy staff. —.
30. In his final written address, counsel to the claimant argued that the phrase “Assumed Years of Service” in Document C.3 means ‘Transfer of Service’ by implication and that both terms have the same effect and implication. With due respect, I do not agree with this line of argument of the learned counsel because we cannot read into this document what is not expressly contained therein as it is trite that ‘the express mention of one thing is the total exclusion of others’ see Olanrewaju Commercial Services Ltd v. Sogaolu & Anor [2014] LPELR-24086(CA). This Court is required to respect the sanctity of the contract between the parties and not to allow a term on which there was no agreement to be read in to it, except if there is ambiguity in the document; see the case of Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) SC 96 at 115 paragraphs C-E. In the circumstance, I reject the argument of the claimant’s counsel that ‘transfer of service’ is meant by “Assumed Years of Service” in Document C.2.
Nonetheless, I again find that the contents of Document C.2 are ambiguous and that they need more clarifications in order to understand the full gist or the subject of the document. It is my further finding that Document C.3 (titled: Update on Staff welfare) was issued to give the necessary explanation on the subject of Document C.2. The content of Document C.3 is to the effect that those who became employees of the defendant; like the claimant via Document C.2 for example, but who were in the employment of the erstwhile Bank, that is; those who were in employment of the former; previous; past or old bank, were not required to be on Probation. Document C.3 – the memo on ‘Update on Staff welfare’ continues that Keystone Bank has assumed the years of service of all legacy staff. This means that the defendant has undertaken, accepted, adopted, taken up or taken responsibility of the years of service of all legacy staff; all bequest or inherited staff of the bank acquired or purchased by the defendant, including Bank PHB; I so find and hold.
From the content of Document C.3, I again find that the use of the phrase ‘has assumed’ is in compliance with the meaning of the phrase ‘the Assuming Bank agrees to comply with the terms of each such agreement’ used in Clause 4.3 of Document C.21 before the Court, ‘the Purchase and Assumption Agreement (PAA) of August 2011.
31. Additionally, on May 2, 2018 the defendant’s witness, D.W.1; Alabi Abimbola Adeola, the Head, Learning Academy of the defendant gave evidence for the defendant. Under Cross examination, he testified that:
When the defendant absorbed staff of Bank PHB, it issued letters of appointment to them. I cannot confirm whether the absorbed staff were paid gratuity for their service with PHB after been absorbed.
This testimony of D.W.1 under cross-examination supports more, the finding of the Court that the old staff who were inherited from the acquired or purchased bank needed not be on probation as stated in paragraph 3 of Document C.2 as their previous employment were assumed by the defendant. More so, that there is no evidence that the claimant’s previous employment was properly determined and his entitlement under it was paid to him. Hence, I find that the requirement of probation period as stated in paragraph 3 of Document C.2 is not applicable to him. Consequently, I find and hold that the years of service of the claimant in Bank PHB were factored into his employment with and assumed by the defendant. See Documents C.2 & C.3 in this case. In addition I hold that the employment of the claimant with the defendant was with effect from February 15, 2006.
32. WHETHER OR NOT THE CLAIMANT’S EMPLOYMENT WAS DETERMINED BY THE DEFENDANT AS A RESULT OF REDUNDANCY AS CONTEMPLATED IN HIS CONTRACT OF EMPLOYMENT OR IT WAS DETERMINATED IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF HIS CONTRACT.
The letter that puts an end to the claimant’s employment with the defendant is marked as Document C. 4 before the Court; it is at page 61 of the record. It is titled: “Service No Longer Required” and dated November 8, 2013. The claimant’s contention is that the way his employment was put to an end by the defendant is on ground of redundancy as contemplated by his contract of employment or at least, that the titled ground was not covered or provided for by the terms and conditions of his contract of his employment with the defendant. On the other hand, the defendant maintained that the Bank complied with the necessary terms and conditions of the contract in determining the said employment.
Was the claimant’s employment determined on ground of Redundancy?
As shown above, the letter of determination of the claimant’s employment is titled: “Service No Longer Required”. This clearly points out that the claimant was not declared Redundant neither was his employment determined on ground of redundancy by the defendant. This is the ordinary meaning of the content of Document C.4 (the letter of determination of the claimant’s employment) and the Court is only allowed to give literary meaning to this document unless there is an ambiguity in doing this. See the case of Julius Berger Nigeria Plc. & Anor v. Toki Rainbow Community Bank Ltd. [2009] LPELR- CA/PH/365/2006 and International Standard Securities v. Union Bank of Nigeria Plc. (Registrar’s Department) [2009] LPELR-CA/A/127/05. Consequently, I find and hold that the claimant’s employment was not determined on ground of Redundancy.
Termination on the ground that: ‘Service No Longer Required’
The claimant’s counsel argued extensively that the claimant’s employment was not determined in line with the provision of the defendant’s Policy Manual Revised in 2013. Document C.16 is the said Policy Manual of 2013 and this document states four ways by which the claimant’s employment with the defendant can be determined. The first one is by termination/dismissal due to an offence in line with the Bank’s appropriate sanctions; see paragraphs 6.9 & 6.10 at page 46 of Document C.16 and page 188 of the record. See also paragraph 4.1.3 at page 72 of the document at page 214 of the record. The second way of determining an employee’s employment including that of the claimant as provided in the Policy Manual is by death, see paragraph 4.1.4 & by abandonment, see paragraph 4.1.5 both at page 73 of Document C.16, and at page 215 of the record. The third way of determining the employment in question is by Resignation; see paragraph 8.1 at page 80 of the Policy Manual and the fourth way of determining the employment is by Redundancy; See paragraph 8.2 at pages 80 – 81 of the Policy Manual at pages 222 and 223 of the record.
33. The ground for which the claimant’s employment was determined by the defendant in the instant case does not fall under any of the four ways provided in the terms and conditions of the parties’ contract as a means of determination of the said contract and I so find. In a recent judgment of this Court delivered on February 15, 2018; unreported with Suit No: NICN/IB/02/2015 between: Mr. Olufemi Olushakin v. First City Monument Bank Plc. at page 12 of the judgment, this Court held thus:
While I agree with the defendant that generally, an employer can terminate the appointment of its employee on the ground (inter alia) that his services are no longer required; in this particular instance, “termination” of the employee’s appointment in the defendant’s Establishment is tagged as “deserve punishment” based ‘on the gravity of the offence’ involved; in the terms and conditions of the contract of employment (Document C9) specifically applicable to the two parties before the Court. The defendant’s position in its written argument is that, even though its Disciplinary Committee investigated certain allegations against the claimant, the claimant’s employment was not terminated as a result of the outcome of that Committee’s report; but simply because the claimant’s services were no longer required. In my considered view, the defendant in this instant case can only terminate the employment of the claimant as a deserving punishment in respect of an offence or misconduct he must have committed in the Bank depending on the gravity of that offence or misconduct.
Since the claimant was not found wanting of any of the twenty offences listed under clause 1.9 of Document C.9 by the defendant; I find and hold that the defendant cannot terminate the employment of the claimant as it did. I further hold that the letter of termination of the claimant’s appointment was wrongly issued contrary to the terms and conditions of employment as the claimant was not found wanting of any of the offences or misconducts so listed in the parties’ terms and conditions of employment. This is because the two parties before the Court in this case are bond by the terms and conditions of this contract of service they freely entered into. In the circumstance, the letter of termination of the claimant’s employment, Document C6 is accordingly set aside.
See also the decision of this Court in the case of Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc. [2015] 58 NLLR (Pt. 199) 92 (NIC) on the similar issue.
34. Parties are bound by the terms and conditions of the contract that they freely entered into. In the circumstance, the defendant was expected to abide by the terms and conditions of the contract of service as stipulated in Document C.16 while determining the employment of the claimant in this instant case. Moreover, in as much as the claimant was not found wanting in any way by the defendant and the Bank still no longer wanted his services, the option the Bank had in determining the claimant’s employment was to declare him redundant as provided in paragraph 8.2 at pages 80 – 81 of the Policy Manual at pages 222 and 223 of the record; but the defendant did not do that in deviance to the content of Document C.16. Instead, the defendant put an end to the claimant’s employment with the Bank vide Document C. 4 titled: ‘Services No Longer Required’; which ground or way of determination is unknown the parties’ contract. The words of the parties’ agreement as stated in paragraphs 6.9 & 6.10; paragraphs 4.1.3, paragraph 4.1.4 & 4.1.5 together with those in paragraphs 8.1 and 8.2 of the defendant’s Policy Manual, Revised in 2013; Document C16 were clear and unambiguous and as such, should be given their ordinary grammatical meanings. See Olanrewaju Commercial Services Ltd v. Sogaolu & Anor (Supra). See also UBN v. Ozigi [1994] 3 NWLR (Pt. 333) pg-333 and Owoniboys Technical Services Ltd v. UBN Ltd. [2003] 15 NWLR (Pt. 844) pg. 545. It is trite that the express mention of one thing is the total exclusion of others. See A.G. Bendel State v. Aideyan [1989] 4 NWLR (Pt. 118) pg.646 and Ogunyinya v. Okudo [1979] 6-9 SC pg.32.
Consequently, I hold that the claimant’s contract of employment with the defendant was wrongly determined by the Bank. I again hold that, for the wrongful determination of his employment from the Bank, which was for no fault of his, the claimant shall be paid his gross salary for six months as compensation.
35. In paragraph 6 of the Statement of Defence, the defendant denied paragraph 58 of the statement of facts and pleaded that the claimant’s gross annual salary was N16,417,588.00. The Law is that facts admitted needs no further prove and I so hold; see the case of Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc. [2015] 58 NLLR (Pt. 199) 92 (NIC) at page 132 paragraphs C – D. The claimant’s compensation for his wrongful termination is calculated this way: The claimant’s annual salary of N16,417,588.00 divided by 12months gives us the sum of N1,368,132.33 as the claimant’s monthly salary; which he received last in the defendant Bank. For the claimant’s 6months’ salary compensation; the sum of N1,368,132.33 will be multiplied by 6months, and this gives us the sum of N8,208,703.98. Therefore, I order the defendant to pay the sum of N8,208,703.98 (Eight Million, Two Hundred and Eight Thousand, Seven Hundred and Three Naira, Ninety Eight Kobo) only to the claimant as compensation for the wrongful determination of his employment.
36. WHETHER THE CLAIMANT IS ENTITLED TO PAYMENT OF GRATUITY
In his relief (iv) as endorsed on the complaint (see also the claimant’s pleadings in paragraphs 57 to 60 of the Statement of Facts and his evidence in paragraphs 57 to 60 of his written statement on oath); the claimant is praying for a declaration that he is entitled to end of service benefits of ₦7, 933,333.31K as Gratuity having spent minimum of 7 years in the services of the Defendant. I have held above that the employment of the claimant with the defendant was with effect from February 15, 2006; see Document C.1. The claimant’s employment was determined with immediate effect on November 8, 2013; see Document C.4. Therefore, the period of the claimant’s employment with the defendant was a total of 7years, 9months and 24days. In essence, the claimant worked with the defendant for seven clear years before his employment was determined and I so hold.
Clause 5.0 of Document C.16; the Policy Manual of the defendant provides for Gratuity Scheme for employees of the defendant; see page 28 of the Manual at page 170 of the Court’s record. In this Clause, any employee of the defendant who has served the Bank for 5year and above before exiting the Bank is entitled to payment of gratuity; which will be calculated by 100% of his monthly total salary (less bonus) multiplied by number of years spent in the services of the Bank.
37. In paragraphs 58 of the Statement of Facts and the claimant’s written statement on oath, the Claimant pleaded and gave evidence respectively that his monthly total package (less bonus) as a Senior Manager of the defendant was the sum of ₦1,133,333.33K. However, in paragraph 6 of the Statement of Defence, the defendant denied paragraph 58 of the statement of facts and pleaded that the claimant’s gross annual salary was N16,417, 588.00 while his net annual salary less National Housing Fund, Pension and Tax was N13,032,376.63. In the interest of justice, the Court will work with the defendant’s admitted sum of the claimant’s net annual salary of N13,032,376.63 as it is trite that facts admitted need no further prove; see the case of Baalo v. FRN [2016] LPELR-40500(SC) and Ume & Ors v. Ibe [2016] LPELR-40080(CA) and I so hold.
In the circumstance, the monthly net salary of the claimant is calculated this way: the sum of N13,032,376.63 divided by 12months, equals N1,086,031.39. Therefore, I hold that the claimant’s monthly net salary less bonuses at exit from the defendant’s employment as a Senior Manager of the defendant was the sum of was N1,086,031.39 (One Million, Eighty Six Thousand and Thirty One Naira Thirty- Nine Kobo) only. Hence, the claimant’s gratuity is calculated thus: N1,086,031.39 multiplied by 7years, equals N7,602,219.73. Consequently, I find and hold that the claimant is entitled to gratuity in the sum of N7,602,219.73 (Seven Million, Six Hundred and Two Thousand, Two Hundred and Nineteen Naira, Seventy Three Kobo) only. I further hold that the defendant is to pay this sum of N7,602,219.73 to the claimant as his gratuity from the Bank.
38. On the whole, I declare, hold and order as follows:
I declare and hold that the objection of the defendant to Document C.17, the Collective Agreement is sustained and the document is accordingly struck out. However, the objection of the defendant to Documents: C.3, C.5, C.6, C.7, C.8, C.9, C.10, C.10(a), C.10(b), C.10(c), C.11, C.11(a) C.12, C.13, C.14, C.18 & C.21 is hereby overruled and dismissed as the listed documents are properly admitted in evidence.
I declare and hold that the Claimant’s date of employment with the Defendant is with effect from February 15, 2006.
I declare and hold that the defendant’s Human Capital Policies & Procedure Manual Revised, 2013 (Document C.16) is part of the Terms and Conditions of the contract of employment between the parties.
I declare and hold that the Claimant’s exit from the Defendant’s employment was not as a result of redundancy as contemplated in his contract of employment neither was it in compliance with any of the lay down ways of determining the claimant’s employment as stated in the terms and conditions of his contract.
I declare and hold that the claimant is entitled to payment of gratuity after his exit from the defendant Bank as provided for in the terms and conditions of his employment in Document C.16.
I hereby order that the defendant is to pay the claimant his Six months’ gross salary as compensation for the wrongful determination of his employment; which is a total sum of N8,208,703.98.
I hereby Order the defendant to pay to the claimant the sum of N7,602,219.73 as his gratuity.
I hereby order that the defendant is to pay N100,000.00 to the claimant as cost of this litigation.
The defendant is to pay the judgment sum to the claimant within 60days from today; thereafter, the judgment sum begins to attract 10% interest per annum until it is finally liquidated.
Judgment is entered accordingly.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
