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National Industrial Court

Uchanma Ndukwe VS Diamond Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

 

DATE: APRIL 26, 2018                                                        SUIT NO: NICN/LA/427/2015

 

BETWEEN

Uchanma Ndukwe                                          –                                                           Claimant

 

AND

Diamond Bank Plc.                                         –                                                           Defendant

 

 

REPRESENTATION

Michael Aboh for the Claimant.

K.C Okwu with C.P. Emeh for the Defendant.

 

 

JUDGMENT

  1. Introduction & Claims

The Claimant approached this Court on 25/8/15 via her General Form of Complaint & Statement of Facts and sought the following reliefs –

 

  1. A declaration that the termination of the Claimant employment is unlawful.
  2. An order directing the Defendant to pay the Claimant her gratuity totaling =N=1,275,107.58, leave days to cash totaling =N=1,999,806.20 both totaling =N=3,274,913.78 and her pension benefits as to be calculated.
  3. An order restraining the Defendant from demanding the mortgage loan till after the 18 years tenor has elapsed as contained in the mortgage agreement.
  4. An injunction, restraining the Defendant from selling the Claimant’s mortgaged house situate at No. 14, Enitan Adekanbi Street, Iju Road Ishaga pending after the     eighteen (18) years tenor as contained in the mortgage agreement.
  5. Cost of this action.
  6. General damages for unlawful termination at the sum of =N=50,000,000.00 (Fifty Million Naira).

Claimant accompanied her  Form 1 and Statement of Facts with witness statement on oath, list of witness, list and copies of documents to be relied on at trial.

 

  1. Counter Claims

The Defendant entered an appearance on 17/9/15 and filed a statement of defence on 25/10/15. The statement of defence was accompanied by all requisite frontloaded processes. In its statement of defence, the Defendant sought the following counter claims –

  1. The sum of =N=25,480,864.62 (Twenty-five Million, Four Hundred and Eighty Thousand, Eight Hundred and Sixty-four naira, Sixty-two Kobo) being the net             indebtedness of the Claimant to the Defendant as at May 12, 2015 and consisting     of a large number of unearned refundable allowances, financial accommodation   and variety of loans availed the Claimant while in the employment of the             Defendant and utilized by her, together with the debit balance on the visa card      made available to her as a bona fide member of staff of the Defendant Bank and       which indebtedness has severally been admitted by the Claimant but which she has          to date, refused and or failed to repay.
  2. An order granting the Defendant/Counterclaimant leave to sell or dispose of the property situate and known as 14, Adekanbi Enitan Street, Eliot, Iju-Ishaga, Lagos     State being the property purchased by the Claimant with the mortgage loan of    =N=21,500,000.00 (Twenty-One Million Five Hundred Naira) availed her by the    Defendant/Counterclaimant and in respect of which she executed requisite             mortgage documents authorizing the Defendant to sell or dispose of in repaying    the mortgage loan in the manner agreed to by the parties, and which proceeds from          the contemplated sale are to be utilized in offsetting fully or partially, as the case         may be, the Claimant’s indebtedness to the Defendant.
  3. Interest on the said net indebtedness at the special staff rate of 4% interest for 90 days from May 12, 2015 and thereafter at the Monetary Policy Rate of 24% per           annum until judgment and thereafter until same is fully liquidated.
  4. The sum of =N=2,000,000.00 (Two Million Naira) being the costs of this action.

 

  1. Case of the Claimant

The hearing of this case commenced on 12/4/16 when the Claimant opened her case and testified as CW1, adopted her witness statement on oath dated 25/8/15 as her evidence in chief and tendered 6 documents as exhibits. The 6 documents were admitted without objection and marked as Exh. C1-Exh. C6 respectively. 2 additional documents were tendered through CW1 under cross examination and were marked as Exh. C7 & Exh. C8 respectively.

 

In her evidence in chief the Claimant stated that the Defendant is a Banking Institution and a registered company under the Company and Allied Matters Act LFN 2004 with head office at PGD’s place, Plot 4 Block V, BIS way, Oniru, Victoria Island, Lagos; that she was in the employment of the Defendant for nine years and worked last in the Defendant’s product programs team at the head office at commerce house No. 1, Idowu Taylor, Victoria Island, Lagos, in the credit analysis and processing division before my termination in April, 2015; that during her service with the Defendant, she did her duties diligently with utmost good faith and to the best interest of the defendant; that the transaction that culminated tin her unlawful termination was done based on the Defendant’s existing policy which was in turn approved by the senior staffs of the Defendant, to wit: the Regional Monitoring Officer and Regional Manager and the transaction was vetted and approved by the Legal Department of the Defendant; that the Defendant acted mala fide when it singled her out as the escape goat and punished her for no reason, in a transaction involving many other staffs, despite her good track record with the Defendant. The Claimant added that she was entitled to two months’ notice  or two month salary in lieu before any termination, according to her contract of employment; that she was not given any notice or paid salary in lieu before termination of her appointment or at the day of termination; that she is entitled to pension and gratuity according to the Defendant’s policy having been in the service of the Defendant for nine years; that she was not also paid her pension, as also stated in the policy, having worked for more than three years and has been contributing 7.5% of her basic salary, transport and rent allowance totaling Twenty Two Thousand, Two Hundred and Seventeen Naira, Seventy Eight kobo (=N=22,217.78) monthly while the Defendant contributes the other 7.5%; that the Defendant has not paid any entitlement to her since the termination of her appointment; that her total entitlement for gratuity is One Million, Two Hundred and Seventy Five Thousand, One Hundred and Seven Naira, Fifty Eight Kobo (=N=1,275,107.58), her leave to cash at =N=1,999,806.20 while her monthly pension contribution is Twenty Two Thousand, Two Hundred and Seventeen Naira, Seventy Eight kobo (=N=22,217.78) and has not been paid her pension benefits.

 

It is also the case of the Claimant that she has mortgage and automobile loan with the Defendant and will abide by the terms and conditions of the loan by serving the loans; that 4% interest rate agreed by parties in the mortgage agreement should stand as it is; that the Defendant has threatened to foreclose the mortgage and sell the property if she did not pay the mortgage loan, contrary to what is stated in the mortgage agreement; that she took the mortgage while she was a staff and agreed to pay the redemption as at when due from her salary and at the interest rate of 4%; that based on this she signed the consent to sell the mortgage property, hoping she would be constant in making payment from her salary; that she is to start paying the mortgage loan in installment from the month of April, but unfortunately her employment was terminated in that month of April 2015, and this act of the Defendant made it impossible for her to start paying for the mortgage loan; that she has no means to start payment of the mortgage loan, as she has no means of income yet and has not gotten another job, which is caused by the “stigma of termination” on her record, which she pleaded with the Defendant to allow her resign but the Defendant remained adamant; that she will start servicing the mortgage loan whenever she secures another job and it will cause great injustice and hardship to her if the Defendant sells the mortgage property now that she has no means of income and contrary to the mortgage agreement which has tenure of eighteen (18) years and that she wrote to the Defendant through her Lawyer to reverse its decision on my unlawful termination but the Defendant maintained its stance on the matter and also a pre action notice was sent to the Defendant, yet it did not respond.

 

Under cross examination, CW1 stated that she got a letter for her entitlement from the Defendant; that the letter shown to her was the letter she referred to; that she started working with Defendant in 2006; that she was given a letter of employment then; that her complaint in this Court is that she was not given notice of termination of her employment; that she was not paid in lieu of notice; that she was entitled to 2 months’ notice or payment in lieu and that she has not paid her indebtedness to the Defendant. Witness added that the facilities were given to her on low interest rate of 4% as an employee of the Bank; that the facilities remain as long as she is a staff of Defendant; that she has not been able to pay back the facilities because of the termination of her employment by the Defendant; that she was not dismissed by the Defendant; that she is aware that the Defendant has the right to sell the house she took loan to buy and recover their money; that the Defendant does not manage pension and that she was paid her leave days in cash by Defendant.

 

  1. Case of the Defendant

On 26/9/17, the Defendant opened its defence and called one Mr. Ugonna Onyema as its witness. The witness adopted his witness deposition on oath dated 28/10/15 as his evidence in chief and tendered 9 documents as exhibits. The 9 documents were admitted without objection and marked as Exh. D1 – Exh. D9 respectively.

 

The case of the Defendant as shown in its pleadings is that having been offered employment as a Banking Officer through the Defendant Bank’s Letter of Offer of April 27, 2006, the Claimant duly accepted and assumed duty as a member of staff of the Defendant on May 22, 2006; that on assumption of duty, particularly following her confirmation, the Claimant became a full-fledged member of staff of the Defendant Bank, entitled to the emoluments and allowances as substantially itemized and stated in the Claimant’s Letter of Offer of employment of April 27, 2006, in addition to other facilities, entitlements and incentives created and designed by the Defendant Bank as part of the industry-wide practice and ethos and intended to assist bona fide employees of the Defendant Bank; that as part of this industry-wide practice and custom, most of these allowances and subsidies, like medical allowance, rent allowance, leave allowance, education allowance, meal subsidy, transport, furniture allowance etc., are usually consolidated and paid en bloc, as different from the monthly salaries and other monthly entitlements, on annual basis to the respective members of staff as part of the compensation package at the beginning of the calendar year, on the assumption or expectation that the recipient member of staff would remain in the employment of the Defendant throughout the said year; that in the event that such member of staff discontinues or disengages from the services of the Defendant Bank, regardless of the circumstance of the disengagement or cessation, such part of the consolidated en bloc annual payment as may be applicable to the part of the particular calendar year in which the individual was no longer a member of staff of the Defendant Bank becomes immediately reimbursement or repayable to the Defendant.

 

The Defendant added that further and as part of the industry wide practice and custom, the Claimant was also entitled, as a bona fide member of staff of the Defendant Bank, to apply for and receive a raft of credit facilities and loans from the Defendant Bank at subsidized interest rates designed specifically and specially for members of staff of the Defendant Bank and applicable during the currency of their employment; that in the course of her employment in the Defendant Bank between May 22, 2006 and April 27, 2015, the Claimant took advantage of these facilities and incentives and applied for, and received various loans from the Defendant; that consistent with its extant practice and consistent with the obtainable custom in the banking industry in the country, the Defendant made available to the Claimant at the beginning of 2015, the consolidated payment for the entire year in respect of some allowances; that in 2015, the Defendant Bank having made a determination that it no longer required the services of the Claimant as an employee of the Bank, duly served the Claimant with a letter dated April 21, 2015 and captioned “Cessation of employment”, duly informing the Claimant hereto that her service would no longer required and consistent with the requirements of the extant personnel policies stipulations of the Bank, elected, in lieu of the requirement for a two month’s notice of termination, to bring the employment to an immediate cessation or termination by payment of two months’ salary in lieu of notice; that following the said Letter of April 21, 2015 and as stated therein, the Defendant sent a letter dated May 12, 2015  to the Claimant, captioned “Re: Cessation of Employment” in which the Defendant went to great length to itemize and set out in detail, the benefits accruable to the Claimant including the crediting to the Claimant’s account of the said two month salary in lieu of notice, vis-à-vis her terminal indebtedness to the Bank as at April 21, 2015, the effective date of her disengagement from the services of the Defendant Bank; that the Claimant’s pension contribution was, consistent with the extant practice and in accordance with the requirements of the law, remitted to her registered Pension Fund Administrators and in all circumstances in which claim would be made or entitlement to one’s pension sought or established, would be required or expected to apply for her pension from her Pension Fund Administrators (PFA); that the Defendant, as indeed all other major employers of labour, does not or no longer, as the case may be, administer pension schemes; that at the date the employment of the Claimant as a member of staff of the Defendant Bank came to end, which was April 21, 2015 allowances and payments in respect of that part of the calendar year beyond April 21, 2015 had been collected upfront by the Claimant, and which payments or collections she had indubitably neither worked for or earned and thus became refundable by the said Claimant; that as at May 12, 2015 the total indebtedness of the Claimant to the Defendant stood at =N=25,480,864,69 (Twenty Five Million, Four Hundred and Eighty Thousand, Eight Hundred and Sixty-Four Naira, Sixty-Nine Kobo) made up of the unearned reimbursement allowances paid in advance to the Claimant, the outstanding on loans collected by the Claimant, debit balance on account and debit balance on the visa card used by the Claimant hereto and which indebtedness was designed to attract the staff rate of 4% interest for 90 days and thereafter interest at Monetary Policy Rate and that a substantial part of the aggregate loans obtained and collected by the Claimant was in respect of the Mortgage Loan of =N=21,500,000.00 (Twenty-One Million, Five Hundred Thousand Naira) which was used by the Claimant to purchase a set of real estate property situate and known as 14, Adekanbi Enitan Street, Elliot, Iju-Ishaga, Lagos State and in respect of which the Claimant executed an equitable mortgage and other legal instruments in favour of the Defendant, authorizing the Defendant to sell the said property in the event of the Claimant’s refusal or failure or default in paying back the loan.

 

Under cross examination, DW1 stated that notice of termination was not given to the Claimant but that she was paid in lieu of notice; that the Claimant’s account was credited with payment in lieu; that the account was accessible to the Claimant; that he does not know if the Claimant withdrew the money in the account; that the Defendant deducted the indebtedness of the Claimant from her entitlement; that the Claimant is not servicing her loan presently; that the tenure of the mortgage claimant took is 18 years; that the legal mortgage was signed by the Bank; that the mortgage document shown to him was not signed by the Bank; that the Bank does not have gratuity scheme for staff; that the unearned leave allowance is part of the employee’s total emolument; that there is no agreement that unearned allowances are reimbursable upon termination; that it is part of the policy of the Bank; that loan to Claimant became repayable upon termination of appointment; that Claimant was to pay =N=2.4 million in the 1st year if she remained in the employment of Defendant; that she has not paid same since and that the deduction from Claimant’s entitlement was for all the loans she has with the Bank.

 

  1. Submissions by Counsel

Upon conclusion of trial and pursuant to the direction by the Court learned Counsel on either filed their final written address. The 11-page final written address of the Defendant was filed on 25/11/17. In it learned Counsel for the Defendant set down the following issues for determination –

 

  1. Whether having regard to the fact that the Defendant terminated the employment of the Claimant without notice but paid the requisite two (2) months’ salary in lieu of notice as contained in the Claimant’s contract of employment, the Claimant’s      termination can be said to be unlawful.
  2. Whether having regard to the fact that the mortgage loan was granted to the Claimant while she was a member of staff of the Bank, at an interest rate of 4%,        the Claimant would, upon her termination from the employment of the Defendant      continue to enjoy the benefits of a staff of the Defendant Bank, even when the    offer letter on the mortgage facility states that the loan shall automatically become         a commercial loan upon the termination or resignation of the Claimant from the       employment of the Defendant.
  3. Whether having regard to the fact that the Defendant consistent with its extant practice and custom, paid the Claimant upfront, unearned allowances in respect of          rent allowance, leave allowance, medical-off the-shelf allowance and reimbursable            allowance, the Claimant can be said to be indebted to the Defendant and therefore    liable to refund the unearned allowances to the Defendant.

 

On the other hand learned Counsel to the Claimant filed his final written address of 10 pages on 20/12/17 and set down the following issues for determination –

 

  1. Whether or not the termination of the Claimant is unlawful.
  2. Whether or not the Defendant calculated all the Claimant’s entitlements.
  3. Whether or not the Defendant is entitled to unearned allowances and whether such practice is not unfair labour practice.
  4. Whether or not the Defendant is entitled to immediate sell of the mortgage property, where it has used the Claimant’s entitlement to service the loan and             where the loan is for 18 years.

 

  1. Decision

I read all the processes filed with clear understanding. I heard the oral testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also listened to the oral argument as canvassed by learned Counsel on either side. Having done all this, I set the following issues down for the just determination of this case –

 

  1. Whether the Claimant has led sufficient cogent and admissible evidence in support of her case to warrant Judgment in her favor.
  2. Whether the Defendant has proved its counterclaim to be entitled to same.

 

It trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both the case law and the statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. The reliefs sought by the Claimant are majorly 6. To be granted any or all of these, the Claimant must lead both credible and admissible evidence in support of each of them. The first relief sought is for a declaration that the termination of the Claimant employment is unlawful. The law is trite that in an action for wrongful or unlawful termination of employment, the Claimant must place before the Court his contract of employment containing the terms and conditions of engagement. See Anifowoshe v. Wema Bank Plc (2015) LPELR-24811 (CA). The Claimant must thereafter prove to the Court what makes the termination of employment unlawful or wrongful within the confines of the applicable terms and conditions. See NITEL Plc vs. Akwa (2006) 2 NWLR (Pt 964)391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR (Pt.957)292 & Amodu vs. Amode (1990) 5 NWLR (Pt.150) 356.  The Claimant did not tender any contract of employment and neither did she tender any Staff Handbook or any such document regulating the relationship between the her and the Defendant. Claimant however tendered a Letter of Offer admitted in evidence and marked as Exh. C8. That exhibit is a 2-page document. Paragraph 3 on page 2 contains the following –

 

”You will be employed on a probationary basis for an initial period of six   months during which notice of termination by either party will be two weeks or       cash in lieu. If at the end of the six months your performance is considered    satisfactory, your appointment will be confirmed in writing, after which notice of        termination by either party becomes one             month notice or salary in lieu; or as may             be subsequently prescribed in the personnel policies manual”.

 

Claimant’s employment was terminated by Exh. C2 dated 21/4/15. The termination was ”with immediate effect” with a rider that the Claimant would be advised of her terminal benefits/indebtedness in a subsequent letter. Thus, by Exh. C7 dated 12/5/15 the Claimant was advised of her indebtedness as at 21/4/15. Among others, the sum of =N=283,357.24 was indicated as 2 months’ salary in lieu of notice. The terms of engagement agreed by the parties respecting termination of the relationship is either one month notice or salary in lieu; or as may be subsequently prescribed in       the personnel policies manual. No policies manual was tendered before me by the Claimant. Thus, she was ordinarily entitled to one month notice or one month salary in lieu of notice. The evidence before me is that the Claimant was paid 2 months’ salary in lieu of notice. I hold that the Claimant was paid in lieu of notice of termination though it was used in liquidating part of her outstanding indebtedness to the Defendant. I thus refuse and dismiss this head of relief and hold that the termination of the employment of the Claimant was not unlawful.

 

The second relief is for an order directing the Defendant to pay the Claimant her gratuity totaling =N=1,275,107.58, leave days to cash totaling =N=1,999,806.20 both totaling =N=3,274,913.78 and her pension benefits as to be calculated. The claim for gratuity by the Claimant apart from her averments and testimony in chief, is founded on Exh. C3. That exhibit is a sheet of paper with the INCENTIVES AVAILABLE TODB PLC STAFF. The exhibit has 12 main items on it. The exhibit was neither signed nor dated. The position of the law is trite that an undated and unsigned document is nothing but a worthless piece of paper. It has no evidential value and cannot assist the Court in reaching the justice of a matter. See Garuba vs Kwara Investment Co. Limited & 2 ORS. (2005) 5 NWLR (Pt 917) 160, Gbadamosi & Anor. vs. Biala & Ors. (2014)LPELR 24389(CA) & Brewtech Nigeria Limited v. Akinnawo & Anor (2016) LPELR (CA). Although this exhibit was admitted at trial, nothing prevents the Court from discountenancing same at this stage of evaluation. See Brossette Manufacturing Nig. Ltd vs. Hemobola Ltd & Ors (2007) 5SC 84. I thus find Exh. C3 unreliable. I discountenance and expunge same from this case. Now, Exh. C3 having been expunged from this proceedings, I find no evidence led by the Claimant in support of claim for gratuity in the sum of =N=1,275,107.58.  I refuse and dismiss same accordingly. Also under this head, the Claimant sought payment of the sum of =N=1,999,806.20 as her leave days converted to cash. I have referred to Exh. C7 earlier in this Judgment. That exhibit has again become relevant here. That exhibit itemise the benefits and indebtedness of the Claimant as at 21/4/15. The first item under benefits is Leave days to cash in the sum of =N=1,999,806.20. That exhibit evidenced the fact that the Claimant was already paid her leave days in cash. Indeed under cross examination on 14/11/16, Claimant gave evidence to the effect that she was paid in cash for her leave days. I have no hesitation in refusing this head of claim also and I so do. Finally under this head of claim, Claimant sought payment of ”…her pension benefits as to be calculated”. This claim is not clear. It is for a party seeking relief from the Court to make same as clear as possible. Claimant wants payment of her pension benefits as to be calculated. To be calculated by who? What will be the basis or yardstick for the calculation? I find no answer to these questions. I refuse and dismiss all the reliefs sought under this head of claim.

 

Thirdly, the Claimant sought an order restraining the Defendant from demanding the mortgage loan till after the 18 years tenor has elapsed as contained in the mortgage agreement. In her evidence in chief, the Claimant averred that she took a mortgage from the Defendant; that she was to start repayment from her monthly salary in April 2015; that the Defendant terminated her employment in the same month of April and that the fact of termination has made repayment impossible and that she would commence repayment the very moment she secures another employment. The Claimant did not tender any exhibit in respect of this. It is worthy of note that the Defendant also counter claimed along the same line. Indeed, the Defendant had counterclaimed thus –

 

”An order granting the Defendant/Counterclaimant leave to sell or dispose of the property situate and known as 14, Adekanbi Enitan Street, Eliot, Iju-Ishaga, Lagos     State being the property purchased by the Claimant with the mortgage loan of    =N=21,500,000.00 (Twenty-One Million Five Hundred Naira) availed her by the    Defendant/Counterclaimant and in respect of which she executed requisite             mortgage documents authorizing the Defendant to sell or dispose of in repaying    the mortgage loan in the manner agreed to by the parties, and which proceeds from          the contemplated sale are to be utilized in offsetting fully or partially, as the case         may be, the Claimant’s indebtedness to the Defendant”.

 

In support of its case the Defendant tendered Exh. D3. That document is of 25 pages. I dare say that the document is a combination of different documents. Pages 1-7 relate to a Lagos State Certificate of Occupancy in favor of one Amos Oladokun Oguntolu. Pages 8-13 is a Deed of Assignment between a Mr. Amos Oladokun Oguntolu (Assignor) and Mrs. Uchanma Uwara Ndukwe (Assignee). This document as part of Exh. D3 has no date. Page15 titled ”Re: Authority and Consent to Mortgage/Sale of All That Property, near Ishaga Area of Lagos State, Registered By a Deed of Assignment Registered As No …. in Volume …. At the Land Registry Office in Lagos” has no date on it. Pages 20 – 24 is a different document on its own. It was alleged to be a Deed of Mortgage between the Claimant and the Defendant. That document was not dated. It was executed only by the Claimant. The Defendant did not execute same. Again page 25 of the said exhibit was not dated as well. The imperative of dates on a document is to authenticate same. The law is clear that an undated document is a worthless piece of paper. See Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) at page 755 and Tsalibawa v. Habiba (1991) 7 NWLR (Pt. 174) at page 461 . See also Wema Bank PLC & Anor. v. Alaran Frozen Foods Agency Nigeria Limited & Anor (2015)LPELR-25980(CA). Being worthless therefore, I discountenance and expunge pages 8-13, 15 and 20-24 of Exh. D3 from this case. In the circumstance, I find no mortgage agreement between the parties before me. The only document before respecting any mortgage loan facility is page 16 of Exh. D3 that was an Offer Letter dated 17/6/14 made by the Defendant to the Claimant. By that letter, the facility is for =N=21,500,000.00 with a tenor of 18 years from the date of initial disbursement and interest rate of 4% per annum from the date of first draw down among others. There being no mortgage agreement before me, the Defendant is here restrained from demanding the mortgage loan till after the 18 years tenor has elapsed as contained in the letter of offer dated 17/6/14 on page 17 of Exh. D3.

 

The Claimant also sought an injunction restraining the Defendant from selling the Claimant’s mortgaged house situate at No. 14, Enitan Adekanbi Street, Iju Road Ishaga pending after the eighteen (18) years tenor as contained in the mortgage agreement. I have found and held that there is no legally admissible mortgage agreement before me. I have also held that indeed that the letter of offer dated 17/6/14 is the applicable document binding the parties in this case. That letter of offer is on page 16 of Exh. D3. I carefully perused that letter. It s a 2-page document. There is no provision or clause in the letter empowering the Defendant to sell the property under any circumstances at all to recover the loan given to purchase same. That being the case, an order of injunction is here issued restraining the Defendant from selling the Claimant’s mortgaged house situate at No. 14, Enitan Adekanbi Street, Iju Road Ishaga pending after the eighteen (18) years tenor as contained in the Letter of Offer dated 17/6/14. The claim for =N=50,000,000.00 as general damages for unlawful termination of employment is not sustainable this Court having found and held that the termination of the employment of the Claimant was not unlawful.  The claim for general damages is thus refused and dismissed.

 

The second issue for determination is whether the whether the Defendant has proved its counterclaim to be entitled to same. What then is counter claim? The Supreme Court in Maobison Inter-Link Associated Limited v. UTC Nigeria Plc (2013) LPELR-20335(SC) said thus –

 

” …, a counter claim is a claim for relief asserted against an opposing party after an           original claim has been made, that is a defendant’s claim in opposition to or as a      set-off against the plaintiff’s claim. See; Black’s Law Dictionary. Ninth Edition         page 402. In other words, a counter claim is a claim by the defendant against the          plaintiff in the same proceedings. It is regarded as an independent and separate         action in which the defendant/counter claimant is in the opposition of the plaintiff           and therefore has the burden of proving the counter claim to be entitled to         judgment thereon.”

 

A counterclaim is a separate and distinct action and a counterclaimant like all other claims, Counter Claimant must prove his claim against the person being counterclaimed before he can obtain judgment on the counterclaim. There is no need citing any authority in support of this well known principle of law because there is a rain of authorities. See however Ogbonna v. A – G Imo (1992) 1 NWLR (Pt.229) 647, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Obmiami Brick & Stone (Nig) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260. See also Ogiren v. Olufunmilayo & Ors (2015) LPELR-24295(CA). Thus, the Counterclaimant must adduce sufficiently cogent and admissible evidence in proof of his counterclaims without which he will not be entitled to the relief sought.

 

The first counter claim by the Defendant is for the sum of =N=25,480,864.62 (Twenty-five Million, Four Hundred and Eighty Thousand, Eight Hundred and Sixty-four Naira, Sixty-two Kobo) being the net indebtedness of the Claimant to the Defendant as at May 12, 2015 and consisting of a large number of unearned refundable allowances, financial accommodation and variety of loans availed the Claimant while in the employment of the Defendant and utilized by her, together with the debit balance on the visa card made available to her as a bona fide member of staff of the Defendant Bank and which indebtedness has severally been admitted by the Claimant but which she has to date, refused and or failed to repay.

 

The sum claimed under this head is a sum certain. It is a sum in the nature of special damages. The law is trite that special damages must be specifically pleaded and strictly proved. See Abi v. CBN (2011) LPELR-4192(CA). Apart from the evidence in chief of its lone witness, Defendant also tendered Exh. D6 which stated the total benefits and indebtedness of the Claimant. On that exhibit the net indebtedness was put at =N=24,622,354.29. This is aside from =N=858,510.40 said to be debit balance on the Claimant’s visa card. I have already made a finding respecting the Mortgage Loan. With respect to the other loans, I note that certain loans were given to the Claimant as a staff of the Defendant while in the employment of the Defendant. I also note that repayments of the loans were to be made from the monthly salary of the Claimant. The Claimant admitted to the existence of mortgage loan and special auto loan. I find no evidence led by the Defendant with regards to personal loan and staff share loan. In support of its grant of special auto loan to the Claimant, the Defendant tendered Exh. D2. That exhibit has 8 pages. Page 4 of it is headed Vehicle Loan Agreement. It was to state out the terms of the loan and the mode of repayment. Unfortunately, the copy tendered is blurred and impossible to read. I dare say that the purpose of tendering documents as exhibits is certainly not for the sake of tendering. When a document is tendered it must be with the intention of it assisting the Court in reaching a just decision. That purpose is defeated where the document is not legible, as in the instant case, for the Judge to read and evaluate. Therefore, any document tendered must be such as is legible enough for the Court to read for the purpose of evaluation. A Counsel who therefore tenders as exhibit an illegible document does so at his own risk. For, the Court cannot and will not make assumptions respecting the contents of exhibits tendered before it during the trial of a case. Aside from this, the document was only executed by the Claimant. For reasons best know to the Defendant it did not execute same. That is not a document that could assist this Court in reaching the justice of this case not having been executed by all the parties to same. In Anya v. Anya & Ors. (2014) LPELR-22479(CA) an appeal in which a particular exhibit which was not executed by all the parties was admitted at trial, the Court of Appeal said –

”The only problem with exhibit T is that it is an aborted terms of settlement with   no legal consequence. The document was not signed by all parties because 1st         respondent refused to sign same. Exhibit T cannot therefore be regarded as a valid           document. Though same was admitted in evidence the document should not have been afforded any probative value by the lower court”.

 

Exh. D2 is not helpful for the justice of this case. Learned Counsel to the Defendant also sought a refund of some allowances paid to the Claimant alleged to be reimbursable. These include Unearned Medical, Unearned Reimbursable Allowance April 22-31, 2015, Unearned Rent Allowance & Unearned Leave Allowance. In proof of these counter claims, the Defendant averred that it was

 

”… part of the industry-wide practice and custom, most of these allowances and    subsidies, like medical allowance, rent allowance, leave allowance, meal subsidy, transport, furniture allowance etc are usually consolidated and paid en bloc, as           different from the monthly salaries and other monthly entitlements, on annual       basis to the respective members of staff as part of the compensation package at the beginning of the calendar year, on the assumption or expectation that the recipient           member of staff would remain in the employment of the Defendant throughout the       said year”.

 

Any industry-wide practice and custom are facts which must be proved. See Oadele vs. Aromolaran II (1996) 6 NWLR (Pt. 453) 180 & Agbai vs. Okogbue (1991) LPELR-225(SC).  Defendant counterclaimant is under an obligation to adduce cogent, credible and admissible evidence in proof of the alleged industry-wide practice and custom for the Court to be positively disposed to its counter claim. Unfortunately, throughout the trial, the Defendant/Counter claimant did not lead evidence in proof of the alleged industry-wide practice and custom. I find no proof of this head of counterclaim. In the circumstance, I refuse and dismiss same for lack of proof.

 

The second head of counter claim is for an order granting the Defendant/Counterclaimant leave to sell or dispose of the property situate and known as 14, Adekanbi Enitan Street, Eliot, Iju-Ishaga, Lagos State being the property purchased by the Claimant with the mortgage loan of =N=21,500,000.00 (Twenty-One Million Five Hundred Naira) availed her by the Defendant/Counterclaimant and in respect of which she executed requisite mortgage documents authorizing the Defendant to sell or dispose of in repaying the mortgage loan in the manner agreed to by the parties, and which proceeds from the contemplated sale are to be utilized in offsetting fully or partially, as the case may be, the Claimant’s indebtedness to the Defendant. In the course of this Judgment, this Court has already issued an order of injunction restraining the Defendant from the sale of the property referred to. That order stands. In the light of that restraining order, this head of counter claim is refused and dismissed accordingly. In much the same vein, the 3rd and 4th head of counter claims for interest and cost of action are refused and dismissed.

 

Before I draw curtains on this Judgment, it is deserving that I make a comment or two on this case. Those who manage corporate business entities need to do so with human face and the fear of God. Besides, it is imperative to bear in mind always also that what goes around comes around. A practice where an employee, as in the instant case, is paid some allowances upfront and is obliged some loans with an understanding that the repayment of the loan would be through monthly deductions from the salary of the employee and for the employee to suddenly be laid off for no reason at all is both disheartening and inhuman. Such a face of corporate practice takes on the guise of a monster when the repayment of the loans are demanded from the employee forthwith notwithstanding the fact that the employee has now joined the bandwagon of the ever increasing unemployed lots of the society. This Court is both a Court of law as well as that of Equity. Jurisprudence teaches that Equity follows the Law; that the harshness of the Law led to the emergence of the doctrines of Equity and that Equity is applied to ameliorate the harshness, rigidity and inflexibility of the Common Law. See Karibi-Whyte, JSC in Akilu v. Fawehinmi (No.2) (1989) LPELR-339(SC). To grant the counterclaims of the Defendant may be acceptable within the confines of the Law but certainly it is not supported by Equity. It will not be out of place to urge corporate practitioners especially in the banking and related industry to review some of their policies relating more importantly to how their employees are treated.

 

Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,

 

  1. The termination of the employment of the Claimant was not unlawful.
  2. The Defendant is here restrained from demanding the mortgage loan till after the 18 years tenor has elapsed as contained in the letter of offer dated 17/6/14 on page 17 of Exh. D3.
  3. An order of injunction is here issued restraining the Defendant from selling the Claimant’s mortgaged house situate at No. 14, Enitan Adekanbi Street, Iju Road            Ishaga pending after the eighteen (18) years tenor as contained in the Letter of             Offer dated 17/6/14.
  4. The claim for =N=50,000,000.00 as damages for unlawful termination of employment is refused and dismissed.
  5. All the heads of counter claim are refused and dismissed for lack of proof by cogent, credible and admissible evidence.
  6. The Defendant is to pay to the Claimant the sum of =N=100,000.00 as cost of this action.

 

Judgment is entered accordingly.

 

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge

 

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