THE NATIONAL INDUSTRIAL CO URT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:
HON. JUSTICE E.D.E ISELE – JUDGE
DATE: 17th September, 2019 – NICN/KN/17/2017
BETWEEN
ALIYU USMAN CLAIMANT AND
FIRST MONUMENT BANK (FCMB) PLC RESPONDENT
REPRESENTATIONS:
Claimant – Present
Defendant – Absent
APPEARANCE:
Abdullahi Ibrahim, Esq. for the Claimant
Sherifat Adeniga, Esq. for the Respondent
JUDGEMENT
The Claimant commenced this suit by a writ of complaint filed on the 28th of March 2017. The Claimant, later on amended his complaint and filed it on the 23rd of November, 2017. The claimant made the following claims:
- a)A Declaration that the claimant has a valid and subsisting employment contract with the respondent.
- b)An Order compelling the Respondent to pay the Claimant his unpaid salaries and all other entitlements commencing from the month of April, 2004 to date.
- c)An Order compelling the Respondent to allow the Claimant to resume his work.
- d)An Order for the immediate payment of the Claimant’s severance allowances and all other benefits.
- e)Exemplary damages in the sum of N30,000.00 (Thirty Million Naira only).
- f)Cost of this action in the sum of N2,500,000.00 (Two Million Five Hundred Naira only).
In the course of hearing the Claimant did not stated that he was employed by the defunct INLAND BANK in 1998 as a staff and his place of duty was located at Murtala Muhammad way NRC building, Kano.
The Claimant didn’t tender any letter of appointment in respect of his employment by the Bank. According to him, the letter was in police custody.
After the recapitalization of Nigerian banks, FIRST INLAND BANK acquired and took over the assets and liability of his employer, INLAND BANK in 2005.
Later on, FIRST INLAND BANK was acquired and to taken over by the FIRST CITY MONUMENT BANK on the 21st of September, 2012.
Simply put, the Respondent maintains he has become an employee of FIRST CITY MONUMENT BANK having acquired and taken over FIRST INLAND BANK which also acquired and took over the Claimant’s original employer, INLAND BANK.
The Claimant also stated that a letter of complaint was written and forwarded to the ASSISTANT COMMISSIONER of Police, State C.I.D Kano, accusing the him of diverting depositors’ fund to the tune of N6,812,740.00. for which he tendered EXHIBIT C.II the letter of complaint to the ACP, Kano dated 15th April, 2004.
The Claimant was later arrested by the police and detained by the police for 2 months and two weeks.
The Claimant Further stated that he was arraigned on the 7th July, 2004 before Magistrate Court No. 24 Gyadi-Gyadi, Court Road, Kano for criminal conspiracy, criminal Breach of Trust and dishonestly receiving stolen property.
Continuing, he maintained he was further detained for 3 week at Goron Dutse Prison on the order of the Magistrate.
And that, he was convicted by the said Magistrate for criminal breach of trust on the 24th January, 2011.
And that, he appealed against his conviction to the High Court of Kano and the said appeal was determined in his favour and allowed on the 28th March, 2013, at the High Court was presided by Hon. Justice Sadi Mato and Justice Farouk Lawan Adamu.
Where he, the claimant was discharged and acquitted. For this the claimant had tendered the record of proceedings in respect of the both courts as exhibits A1 to A65 and exhibits B1 to B13 respectively.
He maintained that, the respondent on stopped paying his Salaries since March 2004 and no reason was given in that regard.
The Claimant concluded that his employment was later terminated by the Respondent.
THE CASE OF THE DEFENDANT/RESPONDENT
The Respondent stated that INLAND BANK wasn’t acquired by any bank but was merged with 3 other banks to become FIRST INLAND BANK and later FINBANK.
The Respondent also stated that the Claimant was never an employee of the Respondent because he doesn’t have any letter of appointment effect and his name is not on the list of FINBANK staff given to her at the time of acquisition. In support of this, the Respondent tendered EXIBIT DA dated 9th November 2017.
And maintained that it was not in the know of the arrest and detention of the Respondent let alone the evacuation of his credentials and letter of appointment.
And the Respondent further maintained, that it is not in the know of any such involving the claimant and wasn’t a party to that the said suit.
The Claimant was never its employee. Therefore, it can’t be made to pay any salary to the Claimant.
The Respondent concluded that there is no valid and subsisting employment contract between the Respondent and the Claimant. Therefore, he is not entitled to all his claims.
THE WRITTEN ADDRESS OF THE PARTIES
The Respondents in its written address distilled the following issues for determination:
- Whether in the absence of any letter of appointment between the parties (Claimant & Respondent) the Court can award the Claimant’s claim in his favour?
- Whether there is a valid statement on Oath of the Claimant in this case before this Honourable Court?
- Whether the claimant has proved his case based on the preponderance of evidence.
In the Respondent’s legal argument on issue No. 1, it was contended that the claimants facts to tender his purported letter of appointment which is the basis of his claim. The Respondent also argued that paragraph 10 of the Claimant’s written deposition couldn’t be believed because it doesn’t contain an ioata of truth, citing section 132 of the Evidence Act, 2011 and the cases of Are VS. Adisa (1967) All NLR pg 158 @ pg 161 – 162, Maigoro VS. Bashir (2000) 11 NNLR pt. 679 pg 453 @464 Maximum Insurance Company Ltd. VS. Owoniyi (1994)3 NWLR pt. 331 pg 178 @ pg 192.
At paragraph 3.2 the Respondent submitted that since there is no any letter of appointment given or issued to the Claimant, that the Court can’t go on a voyage of speculation. Reliance was placed on Abubakar Dan Shalla VS. State (2008) 3 Nigerian criminal cases pg 182 at 184 ratio 1, Master Holding (Nig) ltd 8 others VS. Emeka Okefiena (2011) 6 NWLR (pt. 1244) pg 514 at 517.
The Respondent further submitted that going by the record of proceedings at the Magistrate Court Grade 1, Court 24, Gyadi – Gyadi, Kano, PW 3 testified to that the Claimant was not a permanent staff; that he was an auxiliary staff on a monthly salary of N10,000.00 contrary to the claimant’s written deposition his salary was N50,000.00 Reliance was placed on exhibit A1 – A65.
At paragraph 3.3 the Respondent urged the Court not to award the Claimant’s claim because doing so would amount to acting on speculation by the Court.
At paragraph 3.4 the Respondent further submitted that banks don’t engage persons with criminal character as staff. Therefore, the Claimant, having been convicted, couldn’t have been one of the staff inherited, and the Respondent had not acquired FIN BANK when the Claimant had his problem with his employer – INLAND BANK. That there is no nexus between the Claimant and the Respondent.
At paragraph 3.5 the Respondent argued that exhibit A didn’t emanate from them. The letter must have been written before acquisition of FINBANK. Therefore, the liability of the claimant can’t be transferred to it.
Reliance was placed on National Bank of Nig. Ltd VS. Olaloye Omotayo (2002) FWLR pt. 114 pg 454 at 454 at pg 466, paras F – G.
It was the contention of the Respondent at paragraph 3.6 that the Court has no Jurisdiction to award any amount of money to the Claimant due to the Claimant’s Failure to pay the appropriate filing fees for exemplary damages N30,000,000 claimed by the Claimant.
Reference was made to the cases of
Alh. A-R Sule & others VS. Mr. J. Orisajinmi (2006) All FWLR pt. 343 pg 1686 at pg 1699 ration 9 810 Abia State Transport corporation & Others VS. Quorum consortium Ltd (2009) All FWLR pt. 474 pg 1444 at 1450 ratio 3
On the issue No. 2, the Respondent submitted that failure of the Claimant to update or amend his written deposition on oath after amending his processes made the statement on Oath invalid.
Reliance was placed on
AGBAHONOVO VS. EDU YEGBE (1999) 3 NWLR pt. 594 pg 170 at 186 to 187 paras H – B
The Respondent further submitted that the Claimant ought to have amended and updated his written deposition in the light of the Court Order.
Reference was made to the cases of MARAYA PLASTICS LTD VS. INLAND BANK NIG. PLC (2002) 7 NWLR pt. 765 pg 109 @ 120 and CHIDUBEM VS. EKENNA (2009) ALL FWLR pt. 455 pg 1692 at pg 1705 – 1708.
On the issue No. 3, the Respondent submitted that the claimant woefully failed to adduce cogent and reliable evidence to prove his case; all the claims made by the claimant ranging from his employment with the defunct Inland Bank, to the alleged letter of complaint to the Assistant Commissioner of Police, Kano were not true.
The Respondent further contended that exhibits B to B13, being the proceedings by the Kano State High Court involving the Claimant and the Commissioner of Police did not make any re-instatement order of the Claimant to his employment.
Moreover, the name of the claimant is missing on exhibit DA
Reliance was placed on section 131 EVIDENCE ACT, 2011.
The Respondent concluded that the Claimant didn’t deserve the award of the amount claimed against the Respondent.
The Respondent also filed a reply of on point of Law to the Claimant’s final written address in which the Respondent argued that the objection to the admissibility of exhibit DA by the claimant couldn’t hold water as it was not raised at the point of tendering of the said document.
The Respondent further contended that the document in question was pleaded and proper foundation was laid before it was tendered.
It was the Respondent contention that since the claimant failed to raise an objection at the point of tendering of exhibit “DA”, he can’t be heard to complain.
Reliance was placed on ATTORNEY GENERAL OF OYO STATE VS. FAIRLANKES HOTELS (NO. 2) (1989) 5 NWLR pt. 121 pg 255 @pg 282 para C.
The Respondent concluded that the case of MB4 VS. STANBIC IBTC BANK PLC (2016) 12 NWLR pt.1527 cited by the Claimant is not relevant to this case because in MBU’S case, the merger was a direct one while in this case it is not On the other hand,
The claimant came up with 3 issues for determination in his written address:
1) Whether or not EXHIBIT “DA” is admissible in law and whether same can legally be acted upon by the court.
2) Whether there is a valid statement on Oath in support of the claimant’s claim.
3) Whether the claimant has proved his claims based on balance of probabilities as required by law and thus is entitled to Judgment.
In arguing issue one, the Claimant contended that exhibit “DA”, being an electronically generated evidence must meet the requirements of section 84 of the Evidence Act, 2011.
It was the contention of the Claimant that exhibit “DA” fell short of the requirements of section 84 (2) of the Evidence Act, 2011.
Hence, it can’t be admitted on evidence. The Claimant urged the Court to ignore it. The Claimant further argued that exhibit “DA”, didn’t start with serial No. 00001. At started with serial No. 00006, 00632. The Claimant contended that exhibit “DA” was neither comprehensive nor exhaustive and couldn’t be relied upon.
It was the contention of the claimant that since the claimant was able to show to the Court that he was employed by the defunct Inland Bank, which was later acquired by the First Inland Bank and later Fin Bank which was subsequently acquired by the Respondent, the Respondent couldn’t be absolved of liability.
Reference was made to the case of MBU V. STANBIC IBTC BANK PLC (2016) 12 NWLR pt. 1527 p. 342 and section 119 of ISA, 2007.
The Claimant contended that the testimony of the DW1 under cross – examination vindicated his claim that he was an employee of the defunct Inland Bank and the Respondent acquired the Fin Bank which acquired the Inland Bank.
In arguing issue 2, the claimant contended that it wasn’t the claimant’s fault about the date on the claimant’s statement on Oath; the fault could be attributed to the Court Registry.
Therefore, the mistake/fault of the Registry couldn’t be visited on the litigant.
Reliance was placed on SIEC. EKITI STATE VS. N.C.P (2008) 12 NWLR (pt. 1102) 270 @ 742 paras G – H.
On issue 3, it was the contention of the claimant that the matter before this Court is a civil one bordering on employer/employee relationship which is determined on the preponderance of evidence and balance of probabilities.
Reliance was placed on TANARAWA (NIG) LTD VS. ARZAI (2005) NWLR (pt. 919), pg. 593 @ 594.
The Claimant contended that he adduced cogent and reliable evidence to warrant the Court to give Judgment on his favour.
COURT’S DECISION
There is no doubt that the assets and liabilities of First Inland Bank had been taken over by the Defendant First City Monument Bank upon the merger as shown in exhibit C on 11th September, 2012. And from the review of the evidence it is also clear to me that the Claimant was a staff of the defunct Finland Bank in 2014 when the complaint arose and he was therefore not a staff of First City Monument Bank at the time. Further evidence in exhibit DA shows the Claimant was not a staff of the Defendant as at 2012 and rightly so.
At the time Inland Bank (Nig) plc. on April 15, 2004 wrote exhibit A, the complaint to the commissioner of Police Kano, CID against the Claimant, he was a staff of the first inland bank which had consequently metamorphosed in to the current First City Monument Bank. Even though it denies the Claimant being its staff the denial is only so because the Claimant is a liability, which has passed on to it. See MBV V. STANBIC (supra). However, exhibit DA cannot be explained away in the Claimant’s Favour.
Regarding the head of claims in the 1st head from the evidence before me, the Claimant cannot be said to have a valid and subsisting employment as at present with the current defendant. The evidence shows that his travails started in 2004 and ended in 2013 when the High Court overturned his conviction. He commenced this action about four years later. He pleaded his monthly salary at 1st Inland Bank in year 2004 was N 50, 000 per month. The Defendant denies this, that he has not been its staff. The Claimant has not pleaded what his current salary at FCMB would amount to per month at the time of commencing this action. As at the time of the incident he was a note counter at Inland Bank in 2004. I hold that exhibit DA shows as at 2012 and up to the time of filing the action the Defendant did not have any records to show the Claimant was it’s staff and apart from the succession of mergers nothing links the Claimant to First City Monument Bank. There is no evidence of that link or subsisting employment with the Respondent.
I hold further that the Claimant cannot on the face of the evidence he tendered show that he is a liability of the Defendant. That the Claimant in the first head of claim fails thereby. I hold that no implication of Law following a merger can grant the claimant what he claims against the Defendant in the absence of any verifiable link between the years 2004, 2012 and the present. See JOSEPH IFETA V. SHELL PETROLEUM DEVELOPMENT COMPANY LTD (2006) 32 WRN 1.
Regarding the 2nd claim for payment of Claimants salaries from the year 2004 up to the present date. Here the law is that in a master servant relationship salaries are paid only for work done. In this case it is clear that from April, 2004 until the present the Claimant has not worked for the Defendant. See NATIONAL BANK OF NIGERIA LTD V. OLALOYE OMOTAYO (2002) FWLR pt 114 pg 45 at pg 466.
As to the third claim to be reinstated by being allowed to resume work. The law is that a court will not first a willing employee on an unwilling employer. This is still the law. See the case of (2004) GODFREY ISIEVWORE V. NATIONAL ELECTRIC POWER AUTHORITY (2002) 13 NWLR (pt. 784) 417.
Having held that the first three heads of claim do not succeed. It should become apparent the claims in heads 4, 5 and 6 fail equally for lack of merit.
On the whole the claims of the Claimant are this dismissed hereby and there are no awards as to costs.
Judgment is entered accordingly.
________________________
HON. JUSTICE E.D.E ISELE
PRESIDENT JUDGE
