Ganiyu Abiodun Salami -VS- Aiyepe Microfinance Bank Ltd.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

Date: September 17, 2019

Suit No: NICN /IB/44/2016

Between:

Ganiyu Abiodun Salami Claimant

And

Aiyepe Microfinance Bank Ltd. Defendant

Representation

Moruff O. Balogun Esq, for the Claimant

Oyenike Aliyu-Adenike for the Defendant

COURT’S JUDGMENT

The Claimant instituted this action by complaint on April 15, 2016 praying for the following reliefs:
A declaration that the suspension and summary dismissal of the claimant from the employment of the defendant is unfair, unlawful and illegal.
An order directing the defendant to reinstate the claimant into the employment of the defendant and place him on the level which he would have been, had the defendant not unlawfully and unjustly summarily dismissed him.
An order directing the defendant to pay the claimant the sum of Ten Million Naira (N10,000,000.00) being compensation/damages for the unlawful and unjust summary dismissal of the claimant from the defendant employment considering the grade/level and numbers of years the claimant has selflessly served the defendant.
An order directing the defendant to pay the sum of One Million Naira (N1,000,000.00) to the claimant as special damages.
The cost of this action.

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through his counsel and filed its statement of defence with other processes in compliance with the Rules of this Court.

CLAIMANT’S CASE AS PLEADED

The case of the claimant is that he was a former employee of the defendant for over 20 years before his alleged unlawful summary dismissal. He stated that he was employed into the service of the defendant as a clerk by virtue of a letter of appointment dated 24^th December, 1991. He went on that while he was in the employ of the defendant; he rose to the position of Acting Managing Director and a member of the National Institute of Bankers before the determination of his appointment. He pleaded further that the defendant unlawfully and wrongfully terminated his employment by a letter on January 27, 2016; but that the defendant did not follow due process with its disciplinary procedure on him that led to his dismissal as contained in paragraph 3 of page 4 under summary dismissal in the defendant’s terms and conditions of service. This to him, is because he was not given any query or asked to appear before any disciplinary committee before the defendant dismissed him, neither was he given a warning or suspension by the defendant prior to his dismissal as required by the terms and conditions of his contract.

The claimant pleaded further that he had served in several capacities in the defendant’s organization, which include senior clerk, supervisor, accountant, Head of Operations, and Acting Managing Director. He continued that his salary before his dismissal was N125, 000.00; apart from his other allowances. In addition, the claimant pleaded that he has suffered deprivation, psychological trauma and humiliation as a result of his dismissal, which has portrayed him as a fraudster, a person of low integrity and unworthy of being put in a position of trust.

DEFENDANT’S CASE AS PLEADED

The case of the defendant is that the Claimant was its former employee who rose through the ranks to become the Acting Managing Director of the financial outfit and that he has been having a lot of issues outstanding against him for some time before his dismissal.

The defendant pleaded that all through the Claimant’s stay with the Defendant; he was respectfully treated and promoted as at when due, until his actions and dispositions were no longer compatible with those expected of a banker. The defendant further states that the Claimant has been having a lot of issues with the Defendant bothering on financial impropriety, insincerity, unsecured loans granted by him and outright lifting of depositors fund by him, which could not be satisfactorily explained by him when he was confronted with the facts. The Defendant explained in its pleadings that the determination of the Claimant’s employment was not an overnight thing but based on accumulation of the facts on his itemized misbehaviours and the air of insubordination around him. To the defendant; therefore, the termination of the claimant’s appointment is a sought of soft landing for him and also a way for the Defendant to abate and mitigate its loss, which if pursued; the Claimant will not be able to pay back.

The Defendant again pleads that the termination is lawful since the claimant was fully aware of the case against him but that he has been so heady and refused to proffer a solution. Furthermore, the defendant states that what was standing against the Claimant was act of fraud and unlawfully dealing with customers’ fund, which at any level attracts maximum punishment. The Defendant went on that, the Claimant was not too truthful in his case and that the allegations against him were communicated to him and that this led to his initial suspension before his appointment was terminated to foreclose pressing charges against him. The Defendant continued that there was an avenue open to the Claimant but he failed to take the opportunity by giving satisfactory explanation; however, he could not give any convincing explanation. And so, the claimant was suspended upon the allegations against him and that it was his suspension that led to his termination.

During the hearing of this case, the claimant gave evidence as CW 1 while the defendant’s Acting Managing Director, gave evidence as DW 1.

DEFENDANT’S WRITTEN ARGUMENTS

In his final written address, counsel to the defendant formulated issues for determination as follows:

Whether a Claimant can claim any right under a non-existing terms and conditions of service in order to be entitled to judgment.
Assuming without conceding that the terms and conditions are in place, can a person benefit from his own admitted wrong doing in the face of Exhibits C5?
Arguing the first Issue, the defendant’s counsel submitted that the claimant stated that the Defendant contravened Paragraph 3 of page 4 of its Terms and Conditions of service; therefore, he cannot based his claim on it. He further contended that during the cross examination of the Defendant’s witness, there was evidence that the condition of service booklet relied on by the claimant was yet to be implemented and enforced for workers’ use and that what the Claimant frontloaded was just a draft. Therefore, he urged the court not to rely on the Document C3.

The defendant’s counsel further contended that the law applicable to a cause of action is the law in force as at the time of dispute; citing the case of NURTW v. RTEAN [2012] 10 NWLR (Pt. 170) (No Page). He further contended that the alleged terms and conditions of service, which was yet to be in force has no citation, no commencement date, no formal copy and was only presented in draft form. To him, the purported terms and conditions did not exist at the material time and so, they are unenforceable. He urged the Court to hold that this suit has no cause of action, it is lacking in merit and competence.

Arguing issue two of whether the claimant can benefit from his own wrong, the defendant’s counsel submitted that it is an elementary law that a person cannot benefit from his wrong doing. He contended that notwithstanding the argument on the 1^stissue above, the claimant exhibited and relied on Documents C5, which is a document made by the Claimant himself as a rejoinder to the termination of his employment. To counsel, the claimant having admitted guilt by his own document, cannot Require the defendant to further proof the same admitted facts, as this need no proof.

He submitted that a party is bound by his pleadings; therefore, by his statement of facts, statement of oath and all other documents frontloaded; the claimant has admitted the defendant’s arguments, referring to the case of Onamade v. ACB Ltd. [1997] 1 NWLR (Pt. 480) 123 @ 145 and Okafor v. Okitiakpe [1973] 2 SC, 49. Counsel continued that Document C5 binds the claimant even to the exclusion of the case of the defendant and also because the claimant must succeed on the strength of this case as noted by the court in Nwagwa v. Registered Trustees of Recreation Club [2004] FWLR (Pt. 190] 1360. Counsel concluded that, facts admitted need no further proof and he urged the court to dismiss the claim of the claimant for lacking in merit, being frivolous and gold digging and with punitive cost of Two Hundred Thousand Naira (N200, 000:00) Only.

CLAIMANT’S WRITTEN ARGUMENTS

The claimant counsel filed his final address and formulated these two issues for determination of the Court:

Whether the dismissal of the claimant by the defendant was lawful
Whether the claimant is entitled to the reliefs sought.

Arguing issue one, counsel referred the court to Article 3 (V) of Exhibit C3; the terms and conditions of service, under summary dismissal. The Article states that “Before summary dismissal is effected, the Employee shall be given a written query and afforded the opportunity of defending himself or herself in writing, except where the employee has absconded”. He referred to the case of Oloruntoba-Oju v. Abdulraheem [2009] 13 NWLR page 100, which states that the onus is on a plaintiff to prove that the termination of his appointment is unlawful. He continued that in that case, the Supreme Court held that to discharge this onus, the plaintiff/claimant must prove:

That he is an employee of the defendant
The terms and conditions of his employment by placing before the court the terms of the contract.

iii. Who can appoint and who can remove him.

In what circumstances the appointment can be determined by the employer and the breach of the terms.

Counsel argued further that in order to justify the dismissal or termination of appointment of an employee; the employer must prove to the court’s satisfaction:
That the allegation was disclosed to the employee.
That he was given a fair hearing; and
That the employer believed that the employee committed the offence after hearing witnesses.

He contended that the claimant has successfully proved/established the fact that he was an employee of the defendant by virtue of Exhibits C1 and C2 prior to his unlawful dismissal and that he has equally proved the terms and conditions of his employment through Exhibit C3 in this case. Counsel submitted that the defendant did not adhere to the terms neither did it give fair hearing to the claimant on the allegation against him. Counsel concluded on this issue by urging the Court to grant the claimant’s reliefs.

10.The defendants filed reply on point of law to the claimant’s final written address and stated that Document C3 is not a valid document as it did not originate from the defendant bank. The said reply is not on point of law but mere argument of fact as counsel did not back it up with any law (be it case law or statute).

COURT’S DECISION

I have carefully considered the facts of this case, the arguments of counsel to the parties and their cited authorities, from all of this; I am of the considered view that this Court need to resolve these two issues between the parties:

Whether or not the defendant wrongfully terminated its employment relationship with claimant.
Whether or not the claimant is entitled to the reliefs he is seeking for in this case.
Before going to the merit or otherwise of this case, it is worthy of note that the provision of Order 45 Rule 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is to the effect that a written address is to be set out in paragraphs and numbered serially. However, the written address of counsel to the claimant is not properly numbered, as it is only the introductory part of same that contains 3 paragraphs; which are 1.0, 2.0, and 2.1; see page 121 and page 122 of the record. The remaining five pages of the address from page 123 to page 127 of the record containing the issue for determination and the arguments thereon; they are not numbered at all as required by the rules of this court. I advise counsel to be more compliant with the Rules of this Court in his further dealings with this court because those Rules were not made for fun.
On Whether Document C3; the Defendant’s Terms and Conditions of Employment, is applicable to this case.

In his finally written address, counsel to the claimant contended in his last paragraph at page 124 and the 3^rd paragraph of page 125 of the record that the claimant has proved the terms and conditions of his employment through Document C3. On the other hand, counsel to the defendant argued in paragraphs 5.4 and 5.6 of his final written address that the terms and conditions of service before the court is only a draft copy and that same is not ripe for enforcement or application in determining this case between the parties.

Document C3 is at pages 20 to 26 of the record. A critical look at this document reveals that it has no title, no ending, no date of commencement neither is the document authored nor signed by any person to authenticate that it is genuine. Furthermore, there is no evidence that this document has been published by the defendant as the terms and conditions of employment of its employees and it has no citation.

It is trite that an unsigned and undated document is a worthless piece of paper that has no evidential value in law; see the cases ofAmaizu v. Nzerube[1989] 4 NWLR (Pt. 118) at page 755; Salibawa v. Habilat [1991] 7 NWLR (Pt.174) at page 461 and Dantiye & anor v. Kanya & ors [2008] LPELR-CA/K/EP/NA/26/2007 “Per Okoro, JCA (P. 39, paras. F-G). With all my findings on Document C.3, which the claimant presented to this Court as the terms and conditions of his employment with the defendant; I hold that Document C.3 is a worthless piece of paper, without any legal value and that this Court cannot ascribe any weight to it at all. Therefore, this Court cannot rely on it in determining the merit of this case; and so, Document C.3 is accordingly discountenanced in this judgment.
On the Documents that governs the employment relationship between the parties

It is a settled law that in cases of private employments otherwise known as master and servant relationship like the instant one, the first hurdle to cross is for the court to examine the terms and conditions of service/employment, in order to determine the rights and duties of the parties in their contractual relationship. In doing this, the court is bound to look at the employee’s letter of appointment, any service regulation connected with establishment of the employer including the provisions of any statute or decree, which relates to or regulates the service conditions of the Establishment. We should not forget that whoever assert must prove; see Odiase v. Auchi Polytechnic, Auchi [2015] 60 NLLR (Pt. 208) 1 CA at 23-24, paragraphs F-A and Kafaru v. Reliance Telecommunications Ltd [2015] 60 NLLR (Pt. 211) 627 at 641, paragraphs E – G.

In proof of his case, the claimant tendered the following documents as Exhibits:

Document C.1, the Letter of Appointment dated 24^th December, 1991

Document C.2, the Letter of Re: Offer of employment dated 25^th July, 2005

Document C.3, the Defendant’s Terms and Conditions of Service

Document C.4, the Letter of Termination of Employment dated 27^th January, 2016

Document C.5, Re: Termination of Employment Letter dated 17^th February, 2016

On the other hand, the defendant tendered and relied on the following three documents for its defence: Document D.1, the Corporate Affairs Commission registration documents for Guinea Ade Enterprises dated 6/4/1992; Document D.2, Front page of document requesting to open a current account by Guinea Ade Enterprises as signed by the claimant and Document D.3, specific Account Code detail and balance as generated by the bank.

Having held above that Document C.3 has no legal value and having discountenanced same in the determination of this case, it is my considered view that the terms and conditions of the employment relationship between the parties are as contained in Document C.1, the Letter of Appointment and Document C.2, the letter titled: ‘Re: Offer of Employment’. In the circumstance, the rights, duties and liabilities of the parties in this case will be determined from the content of these two documents and I so hold.

Whether or not the termination of claimant’s employment was wrongful.

In reliefs one to three of the claimant as endorsed on his complaint, he is praying the Court to declare that his suspension and summary dismissal from the defendant’s employment is unfair, unlawful and illegal. He is also praying for an Order directing the defendant to reinstate him into its employment and to place him on the level which he would have been, had the defendant not unlawfully and unjustly summarily dismissed him. He is again praying for an Order directing the defendant to pay him N10,000,000.00 as compensation/damages for his unlawful and unjust summary dismissal considering his grade/level and numbers of years he had selflessly served the defendant. Furthermore, he is praying for an order directing the defendant to pay him N1,000,000.00 as special damages together with the cost of this action.

As shown above, the 1^strelief of the claimant as endorsed particularly at page 2 of the record and as pleaded in paragraph 9 of his Statement of Facts at page 8 of the record is to the effect that he was summarily dismissed from the employment of the defendant. However, the letter through which his employment was determined is Document C.4 before the Court and it is titled ‘Letter of Termination of Employment’ dated 27^thJanuary, 2016; see page 16 of the record. This means that the employment of the claimant was terminated and not dismissed as endorsed and argued by counsel to the claimant. The law is that when an employee complains that his employment has been wrongfully terminated, he has the onus to; a) Place before the court the terms and conditions of his contract of employment; and b) he is also required to prove the manner in which the said terms and conditions were breached by the employer; see Afribank (Nig.) Plc. v. Osisanya [2000]1 NWLR (Pt. 642) 592. In other words, the claimant in the instant case is required to satisfy this Court that the defendant has breached the terms and conditions of the contract expressly agreed to by the parties as stated in Documents C1 and C2.

Nevertheless, in paragraph 6 of Document C.1, the letter of employment of December 24, 1991 at page14 of the record; parties agreed that a month’s notice should be given before either of them determines the contract if the claimant was on probation and three months’ notice if his employment was confirmed. In paragraph 3 of Document C.2, the letter of Re: Offer of Employment dated 25/07/2005 at page 15 of the record; it is stated that the claimant will be on probation for 6months, after which he will be confirmed. The claimant was in the defendant’s employment from July 25, 2005 to January 27, 2016 when his employment was terminated. This means that the employment of the claimant was already confirmed before it was terminated; and so, the claimant was entitled to three months’ notice before he could be terminated or payment of his three months’ salary in lieu of the notice.

By paragraph 4 of Document C4, the letter of termination of the claimant’s employment at page 16 of the record, the termination of the claimant’s employment was with immediate effect. In the circumstance, the defendant has not complied with the term of the contract stated in paragraph 6 of Document C.1 since the Bank did not give the claimant three months’ notice neither did it pay him three months’ salary in lieu of the notice prior to the said termination. On this score, I find and hold that the termination of claimant’s employment is wrongful. I further hold that even though I have held that the said termination is wrongful; the termination in question is not unlawful or illegal because, by the terms and conditions of the employment; either of the parties can terminate the employment after satisfying certain conditions. Therefore, I decline to hold that the termination of the claimant’s employment is unlawful or illegal.

Whether the claimant is entitled to the reliefs he is praying for.

I have found and held above that the defendant did not summarily dismiss the claimant as claimed in his reliefs one to three, but that his employment was terminated with immediate effect. The law is that the quantum of damages that can be awarded in case of wrongful termination of contract of employment is what the employee would have earned in lieu of proper notice; together with any other benefit he is entitled by the terms and conditions of his employment. But if there is no provision for prior notice, then it would be what the employee could have earned if reasonable notice was given, see Afribank (Nig.) Plc. v. Osisanya (supra). This pre-supposes that if an employer terminates the contract of employment of its employee wrongly, he must pay compensation for breach of contract and the remedy is in damages. In the circumstance, I hold that the claimant is entitled to payment of his three months’ salary in lieu of notice for the wrongful termination of his employment. It is trite that the court cannot force an employee on an unwilling employer except such employment is protected by statute. Since the claimant’s employment is not protected by statute, I hold that he is not entitled to reinstatement as claimed in his relief 2.

The 3^rdrelief of the claimant is for an order directing the defendant to pay him the sum of N10,000,000.00 as compensation/damages for his unlawful and unjust summary dismissal. The said sum is not for compensation or damages for wrongful termination. Hence, I find that this Court cannot grant a relief that is not claimed in this case. Therefore, I hold that the claimant is not entitled to the sum of N10,000,000.00 erroneously claimed as compensation/damages for his unlawful and unjust summary dismissal because he was only terminated by the defendant. Furthermore, I hold that the claimant failed to prove to the satisfaction of the Court that he is entitled to the sum of N1,000,000.00 as special damages from the defendant as the said claim is not even particularized. In the circumstance, this claim also fails and it is accordingly dismissed. In addition, I hold that the claimant is not entitled to any payment as cost of this action as he has failed to prove any sum of money he is claiming under this head before the Court.

On the whole, I hold that the claimant is entitled to his three months’ salary in lieu of notice for the termination of his employment with immediate effect. I hereby direct the defendant to pay the claimant the judgment debt within 30days from today. All the other claims of the claimant failed and they are accordingly dismissed.

Judgment is entered accordingly. I make no order as to cost.

Hon. Justice F. I. Kola-Olalere

Presiding Judge