IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.
DATE: MAY 9, 2019 SUIT NO. NICN/AWK/43/2015
BETWEEN:
Mr. Pius Ilo………………………………………………………………Claimant
AND
Unity Bank Plc…………………………………………………………..Defendant
REPRESENTATIONS
F.N. Iguh with I.L. Ofodile, for the Claimant
K.O.K. Agbowo for the Defendant
JUDGMENT
The claimant commenced this action by a complaint filed on the 14th December,2015 and accompanied with the statement of facts, written deposition of Mr. Pious Ilo, affidavit of verification, list of witnesses, Registrar’s certificate, list of documents, by the complainant and statement of facts, the claimant is claiming against the defendant the following reliefs:
Order of this Honourable court mandating the defendant to pay to the claimant the sum of :
N2,145,338.71 (Two Million, One Hundred and Forty Five Thousand, Three Hundred and Thirty Eight Naira, Seventy One Kobo) being the half of his basic monthly salary and quarterly allowances from November 2014 to June 2015.
N802,902.00 (Eight Hundred and two Thousand, Nine Hundred and Two Naira) being the claimant’s housing allowance from January 2015 to June 2015.
N10,154,402.26. (Ten Million, One Hundred and Fifty Four Thousand, Four Hundred and Two Naira, Twenty Six Kobo) being the claimant’s gratuity upon termination of his appointment.
N5,876,266.67 (Five Million, Eight Hundred and Seventy Six Thousand, Two Hundred and Sixty Six Naira, Sixty Seven Kobo) being the claimant’s unutilized leave (at the instance of the defendant for 112 days).
Totaling N18,978,909.64 (Eighteen Million, Nine Hundred and Seventy Eight Thousand, Nine Hundred and Nine Naira, Sixty Four Kobo).
By order of court extending the time, the defendant filed its memorandum of appearance and statement of dafence in this suit dated 4th february,2016 (together with written deposition of Mr. kirikiri Asiga, list of witness(es), list of document(s) and copies of the document(s).
In response, the claimant filed a reply to statement of defence dated 20th June, 2016 and additional written deposition of Mr. Pius Ilo dated the 21st June, 2016.
At the trial, the claimant testified on his own behalf as CW1, while Mr. Kirikiri Asiga, the Manager of the defendant’s Awka Branch, testified as DW1. The claimant’s frontloaded documents were marked Exhibits Pi1 to Pi10. The defendant’s frontloaded document was marked as Exhibit Z. The two witnesses adopted their respective frontloaded documents. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 30th of October, 2018, while the claimant’s was filed on 3rd December, 2018.
THE CASE OF THE CLAIMANT
The claimant’s case is that he was employed by the defendant as a manager in 2007 and served the defendant at its pioneer manager of the Awka Branch after working as the Benin and Onitsha branches of the defendant Bank. That sometime in 2012, the defendant gave a loan facility to one of its customers by name Paul Nomex Allied Ltd for a term of 180 days; that the said loan was secured by a property valued at N50 million by Jide Taiwo & Co; that Paul Nomex Allied Ltd defaulted in the repayment of the loan granted the company. The claimant contended that he was not the person empowered to give loan as he is not authorized to give; that it was the Management of the defendant that gave out loan upon approval; that all the claimant could do was to merely recommend. That the Management of the defendant did not rely on the judgment of the claimant before giving approval for the loan; that it was the judgment of the Account Officer who had direct contact with the beneficiary of the loan and who prepared the credit appraisal memorandum that his judgment was relied upon and not the claimant; that the claimant merely recommended based on the judgment of the Account Officer; that after the claimant, the Regional Manager would recommend based on the same judgment of the Account Officer.
That the claimant did everything within his power to recover the said loan including personal visits, demand letters and placement of a caveat on the subject property; that while still on these effects, the defendant’s Management suspended the claimant in November, 2014 and subsequently terminated claimant’s employment on the 9th June 2015. That while on suspension, claimant was denied his entitlements stipulated in the defendant’s hand book; that claimant’s demands to be allowed access to his entitlement were rebuffed by the defendant; that upon termination, defendant has not paid claimant’s entitlements up till date.
THE CASE OF THE DEFENDANT
The defendant’s case is that the claimant as pioneer Manager of Awka branch made the branch unhealthy by the non-performing loans claimant gave including the one to Nomex Allied Ltd; that the claimant over valued the property of the customer to secure the defendant’s Management approval for the loan as the Management relied on the judgment of the claimant to approve the loan to Paul Nomex Allied Ltd; that the claimant knew from inception that Paul Nomex Allied Ltd would default yet got Management to approve the loan. That the claimant ran (sic) down the Branch with heavy burden of many non-performing loans; that payment of entitlement on suspension is always subject to Management discretion and approval; that payment of entitlement to the claimant, if any, was tied to the recovery of the bad and non-performing loans which the claimant undertook to monitor and ensure payment and which was never recovered. That the defendant denied that the claimant is entitled to any of the reliefs claimed in the statement of facts and urges the court to dismiss the claimant’s suit.
THE SUBMISSIONS OF THE DEFENDANT
The defendant submitted a sole issue for the court’s determination in this suit thus: “whether the claimant discharged the evidential burden on him to be entitled to any of his reliefs/claims.” To the defendant, it is trite in law that he who alleges must prove; that by section 134 of the Evidence Act, the burden of proof shall be discharged on the balance of probabilities in all civil proceedings, citing Ishola v. Union Bank (2005) 2 KLR (pt 191-193) 0 673 at 687. That the claimant did not put up credible and reliable evidence to show he is entitled to the claims/reliefs he is seeking in this court; that claimant sought to show that he did not play major role in the grant of the bad loan to Paul Nomex; that this was however, thoroughly decimated and destroyed by the evidence claimant’s counsel obtained during x-examination (sic) of the DW1; that DW1gave evidence that the Manager played a major role in given (sic) out the bad loan by the zonal office and that he knew Paul Nomex before he granted the loan to him and was fully aware that Paul Nomex was not capable of paying back the loan. That the valuation report on the property by Jide Taiwo was overbloated and false; that this was found out when the Head Office Recovery Department suspected foul play in the entire transaction; that according to DW1 under x-examination (sic) by claimant (sic) counsel, all staff of the Department including himself (sic) were investigated but he was exonerated; that these are overwhelming evidence to show that the claimant was rightly suspended and terminated by the defendant. That DW1 further testified under x-examination (sic) that the Manager had authority to decline the application for the loan by Paul Nomex but did not exercise this authority.
The defendant submitted that the claimant is not entitled to the claims he is seeking because claimant needs the approval of Management to be so entitled; that the evidence shows that claimant did not even apply to Management to request for any entitlement; that he just headed to court against the defendant. The defendant therefore submitted that the claimant did not exhaust all the internal remedies open to him in the bank; that perhaps claimant was fully convinced he had no legitimate claim availing him against the defendant. To the defendant, the claimant’s claims are based on an incurable and defective foundation; that in claimant’s pleading and evidence in chief, the claimant stated that he worked at the Benin, Onitsha and Awka Branch (sic) of the defendant; that at certain times claimant occupied the offices of Regional Head in charge of customer banking; that the claimant never pleaded nor put in evidence any letter of employment, pay slips, letter of promotion for the different offices he occupied which would have formed the basis for his right to the entitlement and basis for calculating the quantum of his entitlement including housing allowances, leave allowance and gratuity; that this position has been settled by a plethora of decided cases. Reference was made to Union Bank of Nigeria Plc v. Chinyere (2012) 1 NILR p 61. The defendant argued further that the case of the claimant is pathetic but incurably bad; that not even a letter of promotion, not even a pay slip, not even a letter assigning claimant to the supposedly higher offices he occupied; that anyway, the claimant knows he is not entitled to any claim and pleading; and that placing these vital document before the court would have made claimant’s suit dead on arrival; referring to Mrs. S. Anaja v. United Bank for Africa (2012) 3 NILR p. 201 paragraphs A-D; that the court’s hands are tied as the court cannot go outside the evidence before it to make a determination in favour of the claimant,; that the claimant’s suit is therefore speculative, unfounded and lacks merit.
In conclusion, the defendant submitted that the claimants (sic) sole witness is unreliable and discredited; that the claimant’s evidence is at variance with the claims/reliefs of the claimant in the suit and have not discharged the burden of proof placed upon claimant by law; that the claimant (sic) claims/reliefs were founded on faulty foundation or rather no solid legal foundation at all and the said claims/reliefs ought to fail woefully.
Upon the foregoing, the defendant urged the court to dismiss this suit in its entirety for lacking in merit.
THE SUBMISSIONS OF THE CLAIMANT
The claimant submitted a sole issue for the court’s determination in this suit thus: “Whether the claimant is entitled to his claims having regard to the pleadings and evidence led at trial.” The claimant submitted that it is pertinent to note that facts admitted need no further proof; that the defendant admitted that the claimant was employed by the defendants (sic) as a Manager in 2007. Reference was made to paragraph 1 of the statement of fact and paragraph 1 of the statement of defence. That under cross- examination on 29th March, 2017, DW1 admitted that the claimant was the pioneer Manager of the defendant’s Awka Branch. That it was the defendant that approved the loan given to Paul Nomex Allied Ltd not the claimant. Reference was made to paragraph 4 of the statement of facts and paragraph 4 of statement of defence. That under cross-examination on 29th March, 2017, DW1 said that either the Manager or the Account Officer does documentation upon loan application by a customer based on the format of the bank; that the Manager then vets and recommends for further Management approval or decline for justifiable reason; that further Management above (sic) the Manager has the authority to either approve or decline the request; that further Management (sic) subjects the Manager’s recommendation to further credit analysis and finally disburses the loan based on the said further credit analysis. That in the case of the loan granted to Paul Nomex, it was not the claimant that gave the final approval for the disbursement of the loan but the zonal office; that the collateral furnished by Paul Nomex was not valued by the claimant but by Jide Taiwo & Co, an accredited valuer of the defendant; that the DWI processed the loan facility granted to Paul Nomex based on the format of the defendant; that DWI saw the valuation report of the collateral before it was sent out to the regional office for final approval and did not raise any objection. That the claimant submitted that in the light of the above admissions by the defendant both in the pleadings and evidence, the defendant has no need to withhold the claimants (sic) salary and other entitlements.
The claimant argued that in a bid not to pay the claimant his entitlements (sic) upon termination of his appointment, the defendant in paragraph 9 of her statement of defence pleaded thus:
The defendant denies paragraph 14 of the statement facts and put the claimant of the strictest proof of same. The defendant further states that even if he is entitled to any payment, which is not conceded, the said payment should be tied to the recovery of the bad and non-performing loans which the claimant undertook to monitor and ensure payment. (underlining claimant’s for emphasis)
The claimant submitted that paragraph 9 of defendant’s statement of defence above does not amount to a denial of paragraph 14 of the claimant’s statement of facts which reads thus: “ The claimant upon determination of his employment and up to this day has not been paid any of his entitlement”; that the defendant by her pleading in paragraph 9 admitted this fact but only said that such payment should be tied to the recovery of the bad and non-performing loans which the claimant undertook to monitor and ensure payment; that the claimant never undertook to ensure payment of any loan granted to a customer. That it is trite that he who asserts must prove; that the defendant has not proved that the claimant undertook to ensure the repayment of the loan personally since there is a collateral for the said loan.
The claimant maintained in his pleadings and evidence that he is entitled to his claims; that he relied on Chapter 12 of the Unity Bank Plc Employee handbook; referring to Chapter 12.6 (a). That the defendant never denied the existence of the said handbook and never also denied the provision of the said handbook; that the defendant in fact did not deny the claimant’s claims but merely tied it to his recovery of every bad and non-performing loan. That it is on record that the claimant made efforts to recover the loan facility granted to Paul Nomex but his efforts were frustrated by the defendant; that the claimant wrote several demand letters to the customer; that the claimant made several visits to the customer in company of the DWI and they extracted a verbal acceptance for the defendant to dispose the collateral which acceptance was subsequently put into writing; that the claimant in a memo co-authored by the DWI requested the defendant to sell the collateral but the defendant did nothing; that DWI admitted all these efforts under cross-examination. The claimant submitted that there is nothing else an employee in his shoes can do to recover a loan facility granted by his employers (as defendant in this suit); and urged the court to so hold; and to resolve the lone issue in favour of the claimant.
In conclusion, the claimant urged the court to enter judgment in his favour and order immediate payment of all that the claimant claimed. The defendant did not reply on point of law.
COURT’S DECISION
I have carefully considered the processes filed and the submissions of the parties. The claimant’s case is a claim for special damages. The law by Gabriel Ativie v. Kabelmetal (Nig.) Ltd (2008) LPELR – 591 (SC); (2008) 10 NWLR (pt 1095) 399; (2008) 5-6 SC (pt.II) 47, is that a claim is circumscribed by the reliefs claimed; and the duty of a plaintiff, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. This court has held in a plethora of cases that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Ineh Monday Mgbeti v. Unity Bank Plc unreported suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February, 2017; Mr Charles Ughele v. Access Bank Plc unreported suit No. NICN/LA/287/2014, the judgment of which was delivered on 10th February 2017 and Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October, 2017. To prove an entitlement, the employee must refer the court to the exact provisions of the law, instrument or document that conferred the entitlement. See FCDA & anor v. MTN & anor (2016) LPELR -4128 (CA); Udoma v. Okorie & ors (2016) LPELR-41183 (CA); Dibal v. Eguma (2016) LPELR-41236 (CA) ; Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (pt.2008) 39; and Otunba Gabriel Oladipo Abijio v. Promasidor (Nig) Ltd unreported suit No. NICN/LA/ 602/2014 the ruling of which was delivered on 17th January, 2017. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. In the instant suit, the claim of the claimant for an order of court mandating the defendant to pay to the claimant the sum of… N18,978,909.64 is a claim for special damages. To succeed in a claim for special damages, it must be claimed specifically and proved strictly. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported suit No. NICN/LA/85/2014, the judgment of which was delivered on 24th January, 2017. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v.Clifco Nig. Ltd (2011) LPELR-2022 (SC); Mr. Ignatius Anyanwu & ors v. Mr. Aloysius Uzowuaka & ors (2009) LPELR- 515 (SC); (2009) 13 NWLR (pt 1159) 445 SC and 7up Bottling Company Plc v. Augustus (2012) LPELR- 20873 (CA). The claimant has a duty to give specific particulars of the special damage he is claiming. This is to enable the opposing party know what he is to meet in the case. See A.G Anambra State v. CN Onuselogu Enterprises Ltd (1987) LPELR- 614 (SC); (1987) NWLR (pt 66) 47; (1987) ALL NLR 579; (1987) 9-11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Academy (2012) LPELR- 206 (SC).
Has the claimant accordingly proved each of reliefs (i) (ii) (iii) (iv) and (v)? Relief (i) is a claim for N2,145,338.71 being the half of his basic monthly salary and quarterly allowances from November 2014 to June 2015. In paragraphs 9, 10 and 11 of the statement of facts and paragraphs 14, 15 and 16 of the written statement on oath, the claimant pleaded and deposed to the effect that while he was working to get the loan repaid, the defendant’s Management suspended him in November 2014 and subsequently terminated his appointment on 9th June, 2015; that by the defendant’s Employee handbook, a staff/ employee on suspension will be placed on 50% of his/her monthly basic salary and quarterly allowance; that he or she is also entitled to full housing and transport allowance; that claimant was suspended in line with Chapter 12 of the Defendant’s Employee Handbook; that he was however denied access to his half basic salary and quarterly allowance and also his full housing and transport allowances from November 2014 until the termination of his appointment in June,2015; that all demands made by the claimant to be allowed access were rebuffed by the defendant. The particulars of special damages that make up the sum of N 2,145,338.71 are half of the claimant’s basic monthly salary and quarterly allowances. These are items of special damages that must be strictly proved as I indicated earlier. The question is: what is the instrument(s) from which the claimant has these heads of claims as entitlements? Incidentally, the claimant had indicated in paragraph 1 of the statement of facts that he is a career banker and was employed by the defendant as a Manager in 2007; and in paragraph 10, that the defendant bank had an employee handbook. The claimant showed none of these, that is, letter of employment as a Manager (with details of the payment package, pay slips (if any) and the Employee Handbook, to this court. Instead, he relied heavily on the pleadings arguing that the defendant did not controvert his pleadings and so must be deemed to have admitted his claims. The claimant seems to forget that the fact that special damages appear to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence as held in NNPC v. Clifco Nig. Ltd (supra); Mr. Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors (supra) 7UP Bottling Company Plc v. Augustus (supra). Relief (i) must accordingly fail for lack of proof. It is accordingly dismissed.
Relief (ii) is for N802, 902.00 being the claimant’s housing allowance from January 2015 to June 2015. Relief (iii) is for N 10,154,402.26 being the claimant’s gratuity upon termination of his appointment. Relief (iv) is for N5,876,766.67 being the claimant’s unutilized leave (at the instance of the defendant for 112days). In UBN Plc v. Ajabule & anor (2011) LPELR-8239 (SC), the Supreme Court, per Adekeye, JSC held that: “… special damages are damages which the law does not infer from the nature of an act but which are exceptional in character. Special damages denote those pecuniary losses which have crystallised in terms of cash and value before trial. It is the kind of damages which though based on the discretion of the trial court, such must be backed up by credible evidence adduced before the trial court which strictly proves the plaintiff’s entitlement to the award. It is therefore settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence. Without such proof; no special damages can be awarded…” See also British Airways v. Atoyebi (2014) LPELR-23120 (SC); UBN Plc v. Chimaeze (2014) LPELR-22699 (SC) and Eneh v. Ozor & anor (2016) LPELR-40830 (SC). The failure of relief (i) means that Reliefs (ii),(iii),(iv) and consequently Relief (v) cannot be granted. They are accordingly dismissed.
On the whole, I see no merit in the claimant’s case. It fails and so is hereby dismissed.
Judgment is entered accordingly. I make no order as to costs.
Hon. Justice John I. Targema, Ph.D.
Judge
