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National Industrial Court

Mr. Oizimede Omage -VS- UDA Micro Finance Bank Ltd & ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

 

DATED: 19TH OF FEBRUARY, 2020            SUIT NO.: NICN/BEN/03/2017

 

BETWEEN:

MR OIZIMEDE OMAGE                         ………….        CLAIMANT

 

AND

 

  1. UDA MICROFINANCE BANK LIMITED …………..DEFENDANTS
  2. MR. GREGORY I. OKOSUN

 

REPRESENTATIONS:

  1. Abure with him; D.E Adodo for the claimant

Bola Adekanle with him, M.E.S Oviere, E.B Aghawegbehe, B.O Okhahume for the defendants

 

JUDGMENT

 

1.1.         It is the claimant’s case that he was employed by the 1st defendant in 2007 and his employment was confirmed on the 2nd March, 2011. He rose through the ranks in the 1st defendant until 11th January, 2017 when his employment was purportedly dismissed by a disclaimer publication. He continued that on the 30th of September, 2016 the claimant was served an internal memo which he responded to on the 23rd September, 2016 in respect of four loan facilities that were advanced to applicants; hope cooperative society 5,400,000 purpose cooperative society N7, 500,000 Osehi Cooperative N1, 680,000 and Ivie Cooperative society N7, 500,000 totaling the sum of N22, 000,000.00. According to him the defendants refused to pay him his monthly salary of N129, 352 and placed him on half salary from September, 2016 – December, 2016 and dismissed him by a publication ‘disclaimer’ which was pasted in strategic places and in the bank premises. It is his testimony that by his schedule of duty, he neither initiates the process of obtaining loans nor has he the capacity or power to grant or approve loans or credit facilities of such magnitude to anybody as his authority as Branch manager to grant and approve loans is limited to N200,000,000 (Two Hundred Million Naira) and that the loans in question were approved by the three Directors Gregory Okosun on the 16/02/16; Paul Agbonifo on 24/3/16 and Bishop Mon Igbinose on 29/06/16 and on 21/04/16 respectively. He stated that when the issue of the non performing loans came up for enquiry he found that it was the 2nd defendant who brought the four applicants to the credit and marketing department with a firm instruction to process their applications as they were personally known to him and that the 2nd defendant now denies same. That on the 11th of January, 2017 police men stormed his home but met his absence then he protested to the Commissioner of Police who carried and concluded investigation indicting the 2nd defendant, one Paul Ehiarekhin Okosun and Gideon Ose Eromon. He pleaded that the procedure for his dismissal is wrongful as it did not follow his condition of service the Uda Micro finance Bank Manual. He averred that the 1st defendant has failed to refund the money accruing to him in the Staff Pension Funds Account domiciled in the Bank.

 

1.2.         It is against this background that the claimant filed his claims vide a      complaint and all his accompanying documents dated 27th of March, 2017. He amended his General Form of complaint on the 21st of February, 2018 claiming against the defendants as follows;

 

  1. A Declaration that the procedures followed by the defendants in       dismissing the appointment of the claimant with the 1st defendant is inconsistent with the procedures laid down by the Banks Regulations/ Staff manual.
  2. A Declaration that the dismissal of the claimant’s appointment with the 1st defendant vide a ‘disclaimer’ publication dated 11th day of January, 2017 is inconsistent with the provisions of Banks Regulation/Staff manual.
  3. AN Order on the 1st defendant to pay the claimant the sum of N258,704 being claimant’s unpaid half salaries for the months of September, October, November and December, 2016.
  4. An Order on the 1st defendant to pay the claimant the sum of N129,352 being one month salary for January, 2016[SIC] in lieu of notice.
  5. An Order on the 1st defendant to pay the claimant the sum of N155, 227.4 (One Hundred and Fifty Five Thousand Two Hundred and Twenty Seven Naira Four Kobo) being his annual leave allowance.
  6. An Order on the 1st defendant to pay the claimant the sum of N1, 170,382.50. (One Million, One Hundred and Seventy Thousand Three and Eighty Two Naira, Fifty kobo) being his contribution to the staff trust fund retirement savings Account.
  7. An Order on the 1st defendant to pay the claimant the sum accruing to the claimant in the staff’s pension funds account being monies deducted monthly from claimant’s salaries since his employment as staff contribution.
  8. An Order for the payment of sum of N20, 000,000 (Twenty Million Naira) to the claimant as general damages for unlawful dismissal from the services of the 1st defendant.
  9. Ten percent interest on the judgment sum until the date of liquidation.

 

2.0. The defendants in response to the above filed their joint statement of defence on the 17th of May, 2017, where they stated that the claimant was a senior staff of the 1st defendant until he absented himself from duty without permission for more than one month. That sometimes in September, 2016 the customer services officer of the 1st defendant caused an internal Memo to be written to the claimant to make available to him complete particulars of four accounts opened at his instance without complete documentation which he refused to heed to because of the fraud he committed in relation to these accounts. They denied that 2nd defendant instructed the claimant to process the application for the said facility and pleaded that it is the responsibility of the claimant and the Head of Credit/ Marketing Department of the 1st defendant one Mrs Matilda Idialu to verify the claim of the applicants’ before sending them to the directors for approval. It is their statement that in an attempt to cover his atrocities and prevent the 1st defendant from knowing the person behind these fictitious groups, he removed the files relating to these accounts. That when he appeared before the 1st defendant Board of Directors he refused to disclose the identity of the persons behind these accounts but promised to recover the loans as at when due hence he was posted to debt recovery unit of the 1st defendant. Defendants stated further that the claimant in connivance with Mrs Matilda Idialu granted another facility to one Johnbull Odion but used other names under various self-help group such as Lovers, Emmanuel, Glorious, Destiny and Akhigbe Aiku self-help groups. That the disclaimer was put up because of the activities of the claimant and his cohort as they were telling lies to customers that the 1st defendant is on the verge of collapsing. They pleaded that it is not true that the police indicted the 2nd defendant because when the issue was reported to the Police the claimant evaded arrest and the police had not concluded investigation when the defendants petitioned to the Economic and Financial Crimes Commission (EFCC) for proper investigation. That the claimant is not entitled to his claims as his action lacks merit.

 

During trial, the claimant testified for himself as CW. He adopted his written statement on oath on the 21/2/18, an additional deposition on the 21/2/18 as his evidence in the case. He tendered documents which were admitted in evidence as Exhibits OO –OO6 and was cross examined by the defendants. The defendants testified through one Gregory Okosun as DW. He adopted his sworn deposition on oath on the 17/5/17as his evidence in this suit. He did not tender any document.

 

As it is customary in law to do, the Court after trial ordered parties to file their written submissions. The defendants on the 21st of May, 2019 filed their final written address wherein counsel on their behalf raised four issues for the determination of the Court as follows;

 

  1. Whether the Claimant has proved that he has been unlawfully dismissed from the employment of the 1st Defendant.
  2. Whether from the evidence before this Honourable Court, it can be said that the Claimant’s Trustfund Retirement Savings is with the 1st Defendant for which 1st Defendant is required to pay to the Claimant.
  3. Whether the Claimant has proved that the 1st Defendant deducted another fund monthly from the Claimant’s salary as Staff Pension Fund which it manages on behalf of the Claimant.
  4. Whether the Claimant is entitled to the sum of N20, 000,000.00 (Twenty Million Naira) as general damages for unlawful dismissal.

 

On issue one, learned counsel submitted that claimant has failed to prove that he was dismissed by the 1st Defendant from his employment as there is nothing evincing so apart from a document titled Disclaimer admitted in evidence as Exhibit OO4. That the claimant contradicted himself when he pleaded and led evidence to the effect that he reported for duty on the 11th day of January, 2017, and performed his lawful duties hence he was paid his December, 2016 salary as this in no way shows evidence of dismissal from work. He cited the case of Ajudua v. Nwogu (No.2) [2004] 16 N.W.L.R (Pt. 898) pg 82. It is counsel’s contention that the defendants led evidence that the 2nd Defendant did not instruct the security personnel of the 1st Defendant to prevent Claimant from accessing his office rather it was the Claimant that abandoned his employment with the 1st Defendant because he was evading Police arrest as a result of the fraud he committed as the Manager of the 1st Defendant. He also posited that assuming but not conceding that the document titled is what the claimant is referring to as the means of dismissing him from the 1st Defendant’s employment, can it be said that the dismissal is unlawful from the circumstance of this case? He answered in the negative stating that the Disclaimer was published by the 1st Defendant after one month that the Claimant absented himself from duty without the 1st Defendant’s permission and thereby abandoned his duty particularly when he was going about telling lies to 1st Defendant’s customers that the 1st Defendant was going to collapse. Counsel stated that it is settled law that when an employee complains that his employment has been wrongfully terminated or dismissed as in the instant case, it is his duty to place before the Court the terms of the contract of employment and to also prove in what manner the said terms were breached by the employer. It is not the duty of the employer to prove any of these facts. He relied on the case of Okomu Oil Palm Co. Ltd v. Iserhienrhien [2001] 85 L.R.C.N 873 @ 882HI & 883A Ratio 1. Counsel submitted that the Claimant has failed woefully to prove in what particular manner the 1st Defendant breached the terms of his contract of employment and that the 1st Defendant is justified to have dismissed the Claimant for absenting himself from duty for more than one month without permission and for grave misconduct of casting aspersion on the integrity of his employer in such a way that will bring his employer down as this has undermined the relationship of confidence which should exist between employer and employee. Also, the issue of fraud leveled against the Claimant by the 1st Defendant which the officers of Economic and Financial Crime Commission (E.F.C.C.) are investigating has further destroyed the issue of confidence between the Claimant and the 1st Defendant. He cited the case of Eze v. Spring Bank Plc [2012] 205 L.R.C.N. 157 @ 205 LRCN Ratio 2 where the Supreme Court held as follows:

In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct.

He urged the Court to so hold.

 

It is the submission of learned defence counsel on issue two,  that from the trial of this case where the claimant stated that the money deducted by the 1st defendant in respect of his pension is with the Trustfund Retirement Savings who are his Pension Fund Administrator it is clear that the said money is not with the 1st Defendant but with the said Trustfund Administrator, hence, the Claimant cannot be urging the Court to order 1st Defendant to give to the Claimant what is not in 1st Defendant’s possession as the appropriate person to demand the refund is the Trustfund Administrator. He urged the Court to so hold and resolve issue two in favour of the Defendants.

 

Learned counsel argued respecting issue three, that aside merely asserting that there is another contribution scheme, the Claimant failed woefully to concretize this assertion by tendering any document to that effect. He stated that the Claimant’s claim to say the least is vague and the Court cannot be urged to give order in this regards as he who asserts must prove. That it is the responsibility of the Claimant to bring before the Court what will enable the Court to assist him to get his relief and in the instant case, the Claimant has failed to do so and he urged the Court to so hold.

 

On issue four, counsel submitted that in the event that this Court finds that the dismissal of the Claimant is actually unlawful, the measure of damages that this Court can award cannot exceed his one month salary in lieu of notice. That the Claimant is also asking for an order on the 1st Defendant to pay the sum of N155, 227 (One Hundred and Fifty-five Thousand, Two Hundred and Twenty-seven Naira) being his annual leave allowance. He submitted that the issue of non-payment of annual leave allowance was not pleaded and no evidence was led on it apart from merely asking for it in his relief. Therefore, the Claimant has failed to prove that he is entitled to this money particularly when the year for which he is claiming the leave allowance was not stated. This is a mere assertion without no proof. He concluded urging the Court to find that the claimant is not entitled to any financial benefit from the 1st Defendant having been dismissed.

 

The claimant in response filed his final written address on the 30th of February, 2019 and learned counsel on his behalf formulated six issues for the consideration of the Court thus;

 

  1. Whether from the facts of this case the allegation of crime (Fraud) to wit (a), creation of fake and fictitious accounts with fake passports, address and phone numbers (b) disbursing loans to these fake accounts and signing the disbursement vouchers were established against his [sic] to warrant the summary dismissal of her employment with the 1st defendant.
  2. Whether there was any evidence to show that the claimant was absent from duty for one month proceeding the summary dismissal of his employment on the 11th day January, 2017.
  3. Whether the disclaimer publication affectively determined, terminated and effectively brought the claimant’s employment to amend.
  4. If the answer to issue (3) is in the affirmative, then what is the effective date of the dismissal of claimant’s employment?
  5. Whether the dismissal of the claimant’s employment was done in accordance with the terms and conditions of the contract of employment.
  6. What is the quantum of damages in a case of wrongful dismissal bordering on criminal allegation?

 

With regards to issue one, counsel stated that the defendants failed to prove cogently that the claimant created or opened any fictitious account. That the claimant by paragraphs d, e, f, g, h and k of his reply to the joint statement of defence of the defendants having established that he was not the one who opened the account and did not carry out the requisite appraisal of the four loans was not cross-examined in this respect. He submitted further that the defendants having raised the issue of fraud, the onus is on them to prove beyond reasonable doubt. He cited the case of Ngige v Obi [2006] 14 NWLR (Pt 999) 1 at 171 and urged the Court to so hold.

 

To the claimant, the defendants could not prove that he was absent from duty without permission to be liable for summary dismissal. That the onus of proving that he was absent from work without permission for one month is on the defendants. According to him, he was paid his December, 2016 salary. That this was not led in evidence by the defendants and counsel urged the Court to so hold.

 

On issue three, submitted that by the clear and unambiguous words of the disclaimer publication, it determined effectively the employment of the claimant.

 

Learned claimant’s counsel posited respecting issue four that the effective date of the determination of the claimant’s employment was 11th of January, 2017 when the disclaimer was published. He cited the case of Odum v Uganden [2009] 9 NWLR (Pt. 1146) 281 @ 302.

 

On issue five, counsel contended that the dismissal of the claimant was not carried out in accordance with the terms and conditions of his service as contained in S.5.0, 5.9, 5.10, 5.12 and 5.13 of the Staff Manual and to that end his employment was not properly determined and thus wrongful.

 

Regarding issue six, counsel submitted that he is entitled to damages having been wrongfully dismissed. He cited the case of Nigerian Gas Co ltd v Dudusola [2005] 18 NWLR (Pt. 957) 292. Counsel on the exception to the general rule on assessment of damages in a master servant relationship stated that where the wrongful dismissal is as a result of an alleged malpractice then such dismissal carries with it some stigma on the character of the employee for which the employer shall be entitled to substantial damages far beyond his salary for the period the notice was required. He cited the case of British Airways ltd v Makanjuola [1993] 8 NWLR (Pt 311) 276. Counsel posited that the publication portrays the claimant in a bad light as a criminal who is not worthy of any trust. That the publication casted a slur on his integrity and completely mars his chance of getting another job especially in the banking sector. Counsel urged the Court to find in favour of the claimant all his claims.

 

The defendants on the 16th of December, 2019 responded on points of law to the claimant’s written submission and submitted that in answer to the argument that he was wrongfully dismissed, an employer in a master servant relationship can determine the employment of his servant for good or bad reasons or for no reasons at all. He cited the cases of Obanye v UBN Plc [2018] vol 281 LRCN P 148 Ration 2; Oforishe v N.G.C Ltd [2018] Vol 275 LRCN P. 106 Ration 10 &12 and submitted that the disclaimer notice which the claimant relied upon as evidence of his dismissal did not state any reason and therefore the claimant cannot impute into the document what was not contained therein. He also argued that the claimant is only entitled to one month salary in lieu of notice and nothing more. In response to the claimant’s submission that the defendants were unable to prove that he was absent from duty for one month proceeding his termination answered that the claimant by paragraph 17 of his averment and statement on oath, stated that on the 11th of January, 2017 fierce looking Police men stormed his home but met his absence. It is his contention that why the Police needed to go to his house for the purpose of arresting him, when he could have been arrested while on duty in his office, because he was not on duty that day. Counsel urged the Court to dismiss the claimant’s claim in its entirety.

 

I have taken a careful and an indepth consideration of the processes filed by both parties to this suit, the documents they tendered in evidence before this Court, the testimonies of witnesses and the written submissions of both counsel on the divide in support of their cases, it is my calm view that the sole issue that will best determine this suit is whether or not the claimant has proved his case to be so entitled to the reliefs sought.

 

The gist of the claimant’s case is that sequel to the wrongful allegation against him that he illegally approved facilities in the sum of N22, 000,000.00, he was wrongfully dismissed by a disclaimer notice on the 11th of January, 2017. The defendants in response, stated that the claimant was absent without permission for a period of more than one month. That sometime in September, 2016 he wrongfully approved some loan facilities and that the disclaimer notice was made in consequence of his attitude of spreading lies to customers that the 1st defendant is on the verge of collapsing. The claimant by his reliefs 1 & 2 claimed urging the Court to hold that the procedures followed by the defendants in dismissing his appointment by a disclaimer notice dated 11th of January, 2017 is inconsistent with the procedures laid down by the Banks Regulations/ Staff manual.

 

It is the law that in the determination of the rights and duties of parties in an employment relationship, recourse should be had to contract regulating the employment. In most cases it’s regulated by two documents usually letter of employment and the defendant’s staff handbook as the case may be. It is a basic principle of law which has gained notoriety, that the terms and conditions of a contract of employment or service are the bedrock or foundation or fulcrum upon which a claim of wrongful termination/dismissal of employment by a claimant can stand. Such terms and conditions of contract of the employment are required to be pleaded and placed before the court in evidence by the claimant to show how the defendant has breached his right under it. See the cases of Bolou v. Federal College of Education Obudu & Anor [2019] LPELR- 47465CA; SCOA Nig Ltd v. Ifebuzoh [2018] LPELR-46784CA; NITEL Plc. v. Akwa [2006] 2 NWLR (Pt. 964) 391; Nigerian Gas Co. Ltd v. Dudusola, supra; Amodu v. Amode [1990] 9-10 SC 61. Where these two documents or either of the two exists, the Court is estopped from looking outside the terms of contract as agreed by parties. See Bolou’s case supra; and Daodu v. UB.A Plc [2004] 9 NWLR, (Pt. 878). What parties to a contract of employment had agreed upon as their terms and same reduced wholly into writing must be given necessary effect. See Ladipo v. Chevron Nig. Ltd [2005] 1 NWLR, (Pt. 907) @ 277. The claimant tendered before this Court his contract of employment, confirmation with the defendants and also his condition of service staff manual marked as exhibits OO and OO3 respectively. The 1st defendant are in ad idem with the fact that this exhibits regulates the terms of employment between it and the claimant. The defendants have argued that save for exhibit OO4, the claimant has failed to prove that he was dismissed. They contended that the claimant abandoned his duty for one month as he was trying to dodge arrest in consequent of the fraud he committed and that he was spreading untrue words/telling lies that the 1st defendant is about to liquidate its operations. The defendants however, agreed that if claimant placed reliance on exhibit OO4 to prove that he was dismissed, it was not wrongful in the circumstances. A careful examination of Exhibit OO4 discloses that it is a disclaimer with the photograph of the claimant and one Mrs. Matilda Idialu notifying the general public thus;

 

DISCLAIMER

This is to notify the general public that Mr. Oizemede Omage, former Manager, and Mrs Matilda Idialu, former Head of Credit & Marketing Department at UDA Micro finance Bank Ltd, Ekpoma Branch, whose passport photographs appear above, ceased to be members of staff of the Bank since 11th of January, 2017.

Anyone who transacts banking business with them does so at his or her own risk

 

Signed

Secretary”

 

The above stated disclaimer on the face of it determined the employment of the duo employees. It will then be right to conclude that the claimant’s employment was terminated/dismissed vide exhibit OO4 in the absence of any other document in prove of same. Now the appropriate question that stems therefrom is, has the 1st defendant duly determined its relationship with the claimant herein in accordance with its staff manual, exhibit OO. The law is of common that a master can terminate the services of its employee with, or without reasons but in doing so it must comply with the terms of the contract. See the evergreen cases of Olatunbosun v NISER Council [1988] 19 NSCC (Pt.1) p.1025; Oforishe v. Nig. Gas Co. Ltd Supra; Ojabor v. Hon. Minister of Communications &Ors [2018] LPELR-44257 (CA); Iderima v. RSCSC [2005] 16 NWLR (Pt 951). A fervent perusal of exhibit OO discloses at paragraphs 2.4, 5.12 that;

 

2.4;  Appointment of confirmed staff members can be terminated       either by the staff member or by the bank by giving of a month’s notice or payment of a months’ salary in lieu thereof. Where a staff fails to give the required one month notice, the bank shall reject his/her resignation and terminate his/her appointment.

 

5.12; Disciplinary Measures

On the finding and recommendation of the Management            Disciplinary committee, the Head of Department is empowered to discipline the culpable staff member either by;

  1. Giving him/her a warning in writing, or
  2. Suspension for ten days without pay and without prejudice to the provision of other sections of this manual
  3. Any other appropriate disciplinary action as recommended.

Recommendation for dismissal or termination of appointment of the culpable staff member shall be submitted with all records of proceedings to the Head, Administration & Human Resources for the staff file for onward transfer to the managing director for appropriate action.

In the case of senior officers and head of departments, the board will review the recommendation of the Board Committee.”

 

The defendants by paragraphs 10 and 12 of their statement of defence and the testimony of the DW stated that the claimant appeared before the Board of Directors in relation to the query issued to him where he promised to ensure the repayment of the loan. The claimant vide paragraph 28 of his amended statement of fact stated that the procedure in the bank’s staff manual was not followed as he did not appear before any disciplinary committee neither was he afforded the opportunity to tender documentary evidence and cross-examine the 2nd defendant. I have cautiously viewed the documents tendered by the claimant, I find at nowhere where he was issued a warning and or query in this respect, the report of the Board of Directors if any, where his case was allegedly reviewed was not tendered by the defendants and he was not given a month notice or payment of a month salary in lieu thereof before his employment was determined on the 11th of January, 2017. The defendants equally alleged that claimant fraudulently dealt with some accounts and opened fictitious accounts, that he misconducted himself in the eyes of the defendants by telling lies about the 1st defendant. All these portend that claimant misconducted himself and was then dismissed from his employment with immediate effect and not by termination. By paragraph 5.1 of exhibit OO, the 1st defendant listed offences for which an employee may be dismissed, specifically sub paragraphs (b), i.e. stealing, fraud, forgery corruption or any other grave misconduct and (c) i.e. absence from duty without permission for one month. The procedure for dismissing or terminating the employment are as stated in paragraph 5.5 to 5.6 and 5.12 highlighted supra in this judgment. It goes without saying that the defendants have failed to follow the terms and condition of its employment as espoused in the above stated paragraphs of its staff manual in dismissing the claimant from its employment. The law is of common place that an employment can be said to have been wrongfully determined if it was done in contravention of the terms and conditions regulating the contract of service or differently put was terminated in a manner not contemplated by the stipulations in the condition of service. See Union Bank Plc v. Saludeen [2017] LPELR-43415 CA; Union Bank of Nigeria Plc v. Chinyere [2012] 2 NLLR, P.41 @ 62; thus in the labour and employment law terrain especially in the banking sector, termination or dismissal of an employee with immediate effect as in this case suggests some wrongdoing on the part of the claimant as stressed by the defendants in this instant, which the defendants must justify. They failed to justify the reasons for which they dismissed the claimant with immediate effect. It is plain on record that claimant was not given fair hearing on the allegation of fraud, spreading of false rumor or lies about the 1st defendant, misconduct leveled against him before his immediate dismissal by the 1st defendant. It is in view of the way and manner the defendants dismissed the claimant, i.e. by merely publishing a disclaimer without more that I find the 1st defendant’s action as wrongful and unfair labour practice, this is in view of the fact that by their contract the 1st defendant is required to follow the procedure for determining its relationship with the claimant, rather it flouted this binding contract by merely issuing a disclaimer in the premises of the 1st defendant. See the case of Keystone Bank Limited v. Michael Femi Afolabi [2017] LPELR-42390 (CA). Accordingly, I find that the dismissal of the claimant from the services/employment of the defendants through their disclaimer notice dated 11th of January, 2017 is wrongful, unmeritorious, preposterous and thus set aside.

However, since this Court cannot in this type of employment relationship force the willing claimant in this case on an unwilling 1st defendant, I convert his wrongful, rash and preposterous dismissal to termination of employment. I so hold.

 

The claimant claims the sum of N258, 704 being his unpaid half salaries for the months of September, October, November and December, 2016. The claimant by paragraph 8 of his amended statement of fact averred that the 1st defendant refused to pay his monthly salary of N129, 353 (One Hundred and Twenty Nine Thousand, Three Hundred and Fifty Naira) but instead, placed him on half salary from September 2016 – December, 2016. It is the law that he who asserts must prove by cogent, substantial, and credible evidence the existence of his assertion, in order to succeed in his claim. See Sections 131-137 of the Evidence Act, 2011; The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side, See the cases of Dasuki v. FRN & Ors [2018] LPELR-43897SC; Ilori & Ors v. Ishola & Anor [2018] LPELR-44063SC; Iseogbekun & Anor v Adelakun& Anor [2012] 4 SC 86; Adetoun v. Lafarge Africa Plc & Anor [2018] LPELR-44733CA. The claimant did not tender his payslip or statement of account to evince payment of the sum of N129, 353 as his monthly salary. Although, the defendants have not by their pleadings and evidence deny that he was not placed on half salary during the period for which he claims. Howbeit, the law yet places the onus of a minimal proof on the claimant to evince to the Court that he was paid only half salary during the period of September to December 2016. I have earlier stated that the claimant failed or refused to tender his payslip or statement of account to substantiate his claim which is in the realm of special damages. It is upon this basis that I find that the claimant is not entitled to the sum of N258, 704 as his unpaid half salaries for the months of September- December, 2016. I so hold.

 

The claimant claims the sum of N129, 352 being one month salary for January, 2016 in lieu of notice. I have held supra that his employment was wrongfully determined when the defendants in contravention of its condition of service terminated the claimant employment. It is the law that in most employment, the contract of service provides expressly that it is terminable by giving the stipulated period of notice the measure of damages recoverable for a wrongful termination will be the amount of salary the employee would have earned during the stipulated period. See the cases of Festus Mrakpor & Anor v Police Service Commission [2016] LPELR-40489 CA; Rene Antoun & Ors v Benson Oghene [2012] LPELR 8502 CA. It is therefore clear by paragraph 2.4 of exhibit OO, the 1st defendant’s staff manual that the claimant is entitled to be paid the sum of N129, 352 as his one month salary in lieu of notice. I so find and hold.

 

He also claims the sum of N155, 227.4 (One Hundred and Fifty Five Thousand Two Hundred and Twenty Seven Naira Four Kobo) as his annual leave allowance. By exhibit OO at paragraph 9.2 which provides thus- “Leave allowance would be the equivalent of one month basic salary or 10% of the annual basic salary, whichever is higher.” It is the law that parties are bound by the contract of agreement expressly entered into. However, there is nowhere the documents tendered by the claimant evinces that he was not paid any annual leave allowance. Infact, he did not state the particular year he is praying for. The claimant failed to specify in his pleading facts leading to his claim for leave allowance. By merely seeking for payment of an unknown leave allowance when he was wrongfully dismissed in January 2017 without more cannot qualify the claimant the grant of same. It is in the light of the reasoning above that I discountenance claimant’s relief 5.

 

Regarding claimant’s claim that he is to be paid the sum of N1, 170,382.50 (One Million, One Hundred and Seventy Thousand Three and Eighty Two Naira, Fifty kobo) being monies deducted monthly from his salary as his contribution to the staff trust fund retirement savings Account his staff’s pension funds account. The claimant under cross-examination has stated that the defendant operated 2 trust fund managed by a PFA and another fund is managed by the Bank. The defendants by their written address have contended that the appropriate quarters to channel his claim in this regards is to his Pension Fund Administrator Trustfund and not to them and that the claimant have failed woefully to prove concretely that there exist another contribution scheme aside his Trustfund. The law is long settled that he who asserts must prove as stated supra. The claimant tendered exhibit OO5 his Trustfund Retirement Savings Account statement as at February 2018. A run through the document shows that there has been remittance of his salary deduction as pension to Trustfund and as at December, 2016 the sum for his Contribution is N1, 211,479.00(One Million, Two Hundred and Eleven Thousand, Four Hundred and Seventy Nine Naira). There is nothing to prove that there exist another contribution scheme save for exhibit OO5 as the claimant have stated. It is without any equivocation that I find that the claimant’s entitlement to his pension in his Trustfund account is to be claimed from his Pension Fund Administrator, Trustfund. Consequently, I order the 1st defendant to give all necessary documents the claimant may be required to produce before he could access his pension forthwith.

 

He equally claims the sum of N20, 000,000 (Twenty Million Naira) as general damages for unlawful dismissal from the services of the 1st defendant. The position of the law is clear that a party is entitled to general damages if it is established that he has suffered an injury or wrong has been committed against him, and ordinarily, general damages would only be awarded against an adverse party if the liability had been established, See the cases of Eze v. Union Bank of Nigeria Plc [2015] 61 N.L.L.R (Pt 212) 135, Durowaiye v. U.B.N [2015] 16 NWLR (Pt 1481) 172 CA. It is trite law that the assessment of damages is subject to the loss sustained by the injured party, which was either in the contemplation of the parties, or is otherwise an unavoidable consequence of the breach, see the case of PHCN & Anor v. Atlas Projects Ltd [2017] LPELR 43622 CA; Andrew Osemwengie v. Judicial Service Commission Edo State & Anor [2015] 63 NLLR (Pt 221) 1 CA. In the instant case, the issue of an award of damage is to be hinged on the fact that the claimant was wrongfully dismissed. The law is basic and firm that assessment of damages for breach of contract which in this case as held above is wrongful termination, is restitutio in integrum, i.e. the claimant shall be restored back to his former position before the termination, however, since it is also the law that the Court cannot force a willing employee on an unwilling employer, what is left for the Court to do in law is to restore him as far as money can put him into the position which he would have been if the breach had not occurred. The Court is equally not unmindful of the principle of law ubi jus ibi remedium; meaning where there is right there is a remedy. The right of the claimant to have his employment terminated as provided for in his contract of employment is sacrosanct. The defendants equally made spurious and unsubstantiated allegations against him, which in the banking sector has demean the image and integrity of the claimant. By British Airways Ltd  v. Makanjuola [1993]8 NWLR(PT.311)276, it was held that the quantum of damages recoverable by an employee depends on whether the wrongful termination was as a result of the failure to give the required notice or as a result of an alleged malpractice, that if it’s the later that since such termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice. This Court followed the decision in British Airways’s case supra in Mr. I. N. Orok v. Lagos University Teaching Hospital Management Board Unreported Suit No. NICN/LA/50/2014, a judgment delivered on 26th February, 2016. This position was recently further upheld by the Court of Appeal in the recent decision of the Court in Promasidor (Nig). Ltd & Anor v. Asikhia[2019] LPELR-46442CA. The Court also considered whether there should be a distinction between damages as a result of wrongful termination where no notice is given and damages for alleged malpractice or misconduct such as injurious falsehood.  The Court Per Ogakwu JCA, found as in British Airways case supra that the respondent in that case is entitled to damages far beyond the payment of salary in lieu of notice. I find this decision persuasive regarding the circumstances leading to the termination of the claimant’s employment, whereby, the defendant alleged that he committed fraud and determined his employment by merely writing a disclaimer and find that the claimant in this case is not only entitled to damages for wrongful termination as held supra, but also entitled to damages for the alleged malpractice. It is in the light of this reasoning coupled with the existing position of the law, Section 19(d) of National Industrial Court Act, 2006 which empowers me to grant damages in deserving cases as in this instant that I find and hold that Claimant is entitled to damages I award the sum of N1, 552,224 to the claimant as his one year salary. I so find and hold.

 

Claimant also claims ten percent interest on the judgment sum until the date of liquidation. With regards to this claim on post judgment interest, the rules of the Court is that the Court at the time of delivering a judgment or making an order may direct the time within which payment is to be made or other act is to be done and may order interest at the rate not less than 10% per annum to be paid upon any judgment. See Order 47 Rule 7 of the National Industrial Court Rules, 2017. It is in this vein that I resolve this claim in favour of the claimant by awarding 10% post judgment interest on all the sum awarded in this judgment.

On the whole, it is obvious that the claimant claims succeed in the most part, for avoidance of doubt, I declare and Order as follows:

 

  1. That the procedure followed by the 1st defendant in determining the employment of the claimant by a disclaimer publication is wrongful.
  2. That the dismissal of the claimant is hereby converted to termination.
  3. That he is entitled to the sum of N129, 352 being one month salary in lieu of notice.
  4. That claimant is not entitled to the sum of N155, 227.4 (One Hundred and Fifty Five Thousand Two Hundred and Twenty Seven Naira Four Kobo) as his annual leave allowance.
  5. That the claimant is entitled to the sum of N1, 211,479.00 from his Pension Fund Administrator, Trustfund. 1st defendant is to release any required letters that will facilitate his assess to his pension forthwith.
  6. That the sum of N1, 552,224 is awarded to the claimant as damages.
  7. The Defendants aare to comply with this decision within 30days failing which it is to attract 10% interest.

 

I make no order as to cost.

 

Judgment is accordingly entered.

 

 

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge

 

 

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