IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

 

IN THE YENAGOA JUDICIAL DIVISION

 

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: THURSDAY 30th SEPTEMBER 2021                           

Suit No: NICN/YEN/21/2015

BETWEEN:

UGOCHUKWU GIBSON OKPARA                                  -----------         CLAIMANT

AND

1.     FIDELITY BANK PLC

2.     FIDELITY UNION SECURITIES LTD    ----------         DEFENDANTS

3.     FIDELITY SECURITIES LIMITED

 

 

REPRESENTATION

 

Sandra Oyibodokaye Esq for the Defendants.

 

 Counsel to the Claimant absent.

 

 

 

 

JUDGMENT

 

INTRODUCTION AND CLAIMS

 

 

The Claimant commenced this suit by complaint and accompanying processes dated 11th June, 2015 and by its amended statement of facts dated 10th December, 2019 claimed against the defendants as follows:

 

a.      A Declaration that the neglect and/or refusal by the Defendants to pay the Claimant his one month’s salary in lieu of notice since 15th of February, 2011 constitutes a breach of the contract of service between the Claimant and the Defendants as well as paragraph 2 of the letter of termination of employment dated February 8, 2011 issued to the Claimant by the Defendants.

 

b.     A Declaration that the Claimant is entitled to damages/compensation from the Defendants for neglecting and/or refusing to pay the Claimant his one month salary in lieu of notice since the 15th of February, 2011 contrary to the provisions of contract of service between the Claimant and the Defendants as well as paragraph 2 of the letter of termination of employment dated February, 08 2011 issued to the Claimant by the Defendants.

 

 

 

i.                    The sum of N53, 173.42 {Fifty Three Thousand, One Hundred and Seventy Three Naira, Forty Two Kobo} only being the Claimant’s one month salary in lieu of notice.

 

ii.                 N10, 000. 00 {Ten Million Naira} only for general damages.

 

iii.               23% interest on each sum of money hereby claimed from the 15th of February, 2011 till judgment is delivered in this suit and thereafter 10% interest thereof till judgment sum is paid.

 

c.      A Declaration that the letter of termination of employment dated the 8th of February 2011 is invalid, null and void for not being in line with the contract of employment/conditions of the offer annexed to the letter of employment dated 4th December, 2007.

 

This matter started de novo before this Honourable court on the 16th April, 2018. The Defendants were served with numerous hearing notices but never appeared. The Claimant opened and closed his case and the matter was adjourned for adoption of final written address, and the Defendants were foreclosed on the 28th March, 2019. However on the 19th of July, 2019 after this Honourable court considered the application of the Defendants/Applicants to come in defence of its action in the interest of justice relying on the provisions of Order 17, 57 Rule 4 of the Rules of this Honourable court.

 

The Defendants filed an Amended Joint Statement of Defence on the 29th of January, 2020 and in reply thereof, the Claimant filed a reply to the Defendants’ Amended Joint Statement of Defence dated the 30th January, 2020. Trial commenced on the 4th June, 2018. The Claimant testified as a sole witness {Cw1} and adopted his statement on oath dated the 11th June, 2015. Cw1 tendered 6 exhibits which were admitted and marked as exhibit Cw1001A, Cw1001B, Cw1001C, Cw1002, Cw1003 and Cw1004. On a further examination of Cw1, he adopted his witness statement on oath dated the 11th December, 2019 and Further Deposition on Oath made on the 30th January, 2020 as his evidence in this suit and was duly cross examined. The Defendants opened their defence on the 3rd day of December, 2020 and called a sole witness one Nnaemeka Nebedum the 1st Defendant Team Leader of Human Resources Personnel for East and South regions of Nigeria who adopted his Amended Witness Statement on Oath dated the 29th January, 2020 and tendered two {2} documents which was marked as exhibit Dw001 and Dw001A. Dw1 was duly cross examined. At the end of trial, the court ordered parties to file their respective final written addresses. The Final Written Addresses were adopted on the 17th February, 2020 and the court adjourned for judgment.

 

THE CASE OF THE CLAIMANT IN BRIEF

 

It is the case of the Claimant that pursuant to a Letter of Employment dated December 4th 2007 he was employed by the Defendants as a Note Counter on secondment to Fidelity Bank Plc, whose employment was later confirmed  by the Defendants after about three {3} months thereafter. As contained in the salary break down the Claimant’s one month salary is N53, 173, 42 {Fifty Three Thousand, One Hundred and Seventy Three Naira, Forty Two Kobo} only according to the contract of employment/condition of the offer the Claimant was entitled to one month salary in lieu of notice upon termination of his employment by the Defendants. He stated that he worked with the Defendants for a period of about four {4} years before his employment was unjustifiably terminated by the Defendants on the 9th of February, 2011 vide a Letter of Termination of Employment dated February 08, 2011. He averred that prior to the termination of his employment he was not issued or served with any prior notice neither was he paid one month salary in lieu of notice in line with his contract of employment despite having written several letters of demand. He stated that he has suffered enormous financial hardship and embarrassment as a result of the neglect and refusal by the Defendants to pay him his one month’s salary in lieu of notice since February 15th, 2011.

 

Under cross examination Cw1 denied that his salary was N4, 130.25  but stated that his salary was N53, 173. 00k and it includes all his allowances. Cw1 admitted that it is true that he ought to have received a month salary, but the termination letter said he should be given one month basic salary and admitted he mentioned one month basic salary in lieu of notice instead of one month salary and he intends to amend that anomaly. He stated his monthly salary is a combination of his basic salary and other allowances put together and the breakdown of all his allowances is contained in exhibit Cw001A. Cw1 informed court that the main reason why he was in court was that his one month salary in lieu of notice was not given to him. Cw1 admitted that it is true that the one month salary in lieu o notice can only be paid to him upon the confirmation of his appointment. He has no letter of confirmation to that effect but he has the employment letter which states all the terms of his employment.

 

THE CASE OF THE DEFENDANT IN BRIEF

 

It is the case of the Defendant that the Claimant’s monthly basic salary was N4, 130. 25 {Four Thousand, One Hundred and Thirty Naira, Twenty Five Kobo} and not N53, 173. 42K {Fifty Three Thousand, One Hundred and Seventy Three Naira, Forty Two Kobo} as contained in the Claimant’s letter of employment. The Claimant was only entitled to one month basic salary upon termination of his employment in lieu of notice. It is the Defendants’ case that upon the termination of the Claimant’s employment by the 3rd Defendant, the Claimant was indebted to the 3rd Defendant to the tune of N7, 586.63 {Seven Thousand, Five Hundred and Eight Six Naira, Sixty Three Kobo} by way of unearned up front allowance that was paid into the Claimant’s account prior to the termination of the Claimant’s employment and by virtue of the Claimant’s indebtedness to the 3rd Defendant made the Claimant to have nilled off his basic salary upon the termination of his employment. Mathematically when the monthly basic salary of the claimant {N4, 130. 25} is deducted from the Claimant’s indebtedness of {N7, 586. 63} to the 3rd Defendant, the Claimant is left with a nill basic monthly salary as the Claimant’s monthly basic salary could not even make up for the Claimant’s indebtedness to the 3rd Defendant.

 

Under cross examination Dw1 {Nnaemeka Nebedum} admitted that there was nowhere in exhibit Dw001A to show that the Claimant had endorsed receiving the document and also admitted that exhibit Cw001C is the Letter of Employment of the Claimant. Dw1 stated that he is not aware of any Letter of Employment apart from what is contained in exhibit Cw001 A – C and he has the consent of all the Defendants to depose his Statement on Oath and also testify in this matter on their behalf. Dw1 admitted that the bank is aware of the Claimant’s Contract of Employment and the Contract Letter of Employment of the Claimant is with the Fidelity Securities {3rd Defendant} and the 3rd Defendant seconded the Claimant to the 1st Defendant. Dw1 further admitted that the Contract of Employment is the basis that the 1st Defendant had worked with the Claimant because its from one of the Bank’s vendors. Dw1 stated to an extent both the Claimant and the Bank {1st Defendant} are bound by the Contract of Employment and he is not aware of any Letter of Employment apart from exhibit Cw001.

 

THE SUBMISSIONS OF THE DEFENDANTS

 

Learned counsel to the Defendants distilled two issues for determination in his Final Written Address, which are:

 

 

a.      Whether in view of the totality of evidence adduced in this case before this Honourable court, the Defendants are either jointly or individually in breach of the Contract of Employment between the Claimant and the 3rd Defendant {formerly the 2nd Defendant}.

 

b.     Whether the Claimant has placed sufficient evidence to be entitled to the reliefs sought in his case against the Defendants jointly and severally.

 

On the first issue for determination learned counsel answered in the negative and submitted that it is the principle of law that in civil cases, the proof of a party’s claim is on the preponderance of evidence and balance of probability. For a party to succeed in such claim, the statutory duty and burden must be seen to have been evidentially discharged. He referred to the case of Governor of Akwa Ibom State vrs Akpan {2017} All FWLR pt. 874 pg 1916 @ 1946 para and sections 131, 132 and 134 of the Evidence Act, 2011. Learned counsel submitted that it is trite principle of law that it is only parties to a contract that can benefit or sue for any breach thereof. He relied on the cases of Cyprian vrs Uzo {2016} All FWLR pt. 849 @ 859 pp @ pg 891, para E – F and Richie vrs Nigerian Bank for Commerce and Industry {2016} All FWLR pt. 832 @ 1664 pg 1666. Learned counsel submitted that for the issue under consideration to be effectively answered, the following legal posers are very germane, to wit:

 

i.                    Whether in view of the evidence adduced before the Honourable court there was a joint contract of employment between the Claimant and the Defendants?

 

ii.                 Whether the Defendants are either jointly or individually in breach of the contract of employment between the Claimant and the 3rd Defendant {formerly the 2nd Defendant}.

 

In answering the above poser, learned counsel submitted that there is no joint contract of employment between the Claimant and the Defendants but rather contract of employment only exist between the Claimant and 3rd Defendant {formerly 2nd Defendant} and exhibit Cw1001 {Letter of Employment dated December 4th, 2007} expressly proves the contract of service that existed between the Claimant and the 3rd Defendant. The Claimant was only seconded to the 1st Defendant meaning he was posted to serve with the 1st Defendant. Learned counsel submitted that it is a trite principle of the law of contract that parties are strictly bound by the terms of the agreement they freely entered into. He relied on the case of Nuhu & Anor vrs Benneth {2017} LPELR 42634 {CA} {pp 6 – 7 paras F – B}. Learned counsel argued that Exhibit Cw1001 cannot be rewritten to mean a joint letter of employment between the Claimant and all the Defendants and urged this Honourable court to so hold.

On the second poser above, learned counsel submitted that the Defendants are neither jointly nor individually in breach of the terms of the Contract of Employment between the Claimant and 3rd Defendant {formerly the 2nd Defendant}. Learned counsel argued that the Claimant’s claim that he was entitled to one month’s salary in lieu of notice and that exhibit Cw1002 {Letter of Termination of Employment dated February 08, 2011} is in breach of the contract of service is totally misleading considering the evidence adduced before the court. Learned counsel argued that the relevant document that will determine whether or not the Claimant was entitled to one month salary in lieu of notice is principally exhibit Cw1001. Learned counsel reproduced the relevant portion of the period of notice as contained in exhibit Cw1001 and argued that from the terms of contract of employment contained in exhibit Cw1001, the germane questions that may quickly call for answers are as follows:

 

i.                    Was the Claimant still on probation when his employment was terminated?

 

ii.                 Is there any evidence before the court that the Claimant’s employment was confirmed before the termination thereby entitling him to one month salary in lieu of notice?

 

 

Learned counsel submitted that it is a trite principle of law of evidence that he who asserts must prove. He cited the case of Owena Mass Transportation Co. Ltd vrs Okonogbo {2018} LPELR 45221 {CA} pg 21 – 24. Leaned counsel argued that the Claimant deposed in paragraph 9 of the Claimant’s Statement on Oath filed on the 20th of November, 2019 that his employment was confirmed after three months but this was vehemently denied by the Defendant in paragraph 7 of the Defendants’ statement on oath filed on the 23rd day of October, 2019 and put the Claimant to the strictest prove of same but the Claimant both in his reply, pleadings and oral evidence in court could not prove that his employment was confirmed. Learned counsel contended that to further debunk the Claimant’s averment that his employment was confirmed during cross examination Cw1 when asked if he has anything before this court to show that his employment was confirmed he answered “yes, no document to that effect”. Learned counsel argued that by this piece of evidence the Claimant has woefully failed to prove that his employment with the 3rd Defendant was confirmed in line with the Letter of Employment to be entitled to the one month salary in lieu of notice. The law is trite that terms of an agreement are determined by parties and not by the court. Learned counsel submitted that without addition or subtraction to the terms of exhibit Cw1001, the Claimant can only be entitled to one month salary in lieu of notice upon confirmation of his employment and since there is no evidence of confirmation of the employment, no breach was occasioned by the issuance of exhibit Cw1002 and urged this Honourable court to so hold. Learned counsel further contended that the Claimant was served with exhibit Dw1001 with the annexure exhibit Dw1001A {end of service statement on the 15th of February, 2011 as stated in exhibit Cw1002. Considering reliefs 1, 2 and 3 of the Claimant’s claims, the claimant also anticipated exhibits Dw1001 and Dw1001A by virtue of paragraph 2 in exhibit Cw1002. This is because 15th of February, 2011 was copiously referred to in exhibit Cw1002 to determine the Claimant’s fate whether he was entitled to terminal benefits. Accordingly, exhibits Dw1001 and Dw1001A were issued and served on the Claimant on the 15th of February, 2011 unfortunately, the Claimant was indebted to the employer, hence no entitlement. Therefore, the Claimant’s denial of receipt of exhibits Dw1001 and Dw1001A is not tenable in law. Learned counsel submitted that a very germane question is, what is the basis of the Claimant’s claims of payment of damages from the 15th February, 2011? This poser is effectively answered in paragraph 2 of exhibit Cw1002 which provides “your terminal entitlements or indebtedness fro/to the bank will be communicated to you on or before February, 2011. Learned counsel argued that exhibits Dw1001 and Dw1001A are means employed by the 3rd Defendant to communicate to the Claimant to determine his terminal entitlements or indebtedness as anticipated by the Claimant upon the receipt of exhibit Cw1002. The contents of exhibit Cw1002 are clear and unambiguous; the Claimant was to be communicated his fate and not payment of entitlements on the 15th of February, 2011. Learned counsel submitted that courts are enjoined to give literary meaning to words contained in documents when same are unambiguous. He cited the case of I.T.F./ Governing Council vrs Lower Niger River Basin & Rural Development Authority, Ilorin {2014} All FWLR {pt. 723} 1989 {CA} and urged this Honourable court to so interpret the contents of exhibit Cw1002.

 

Learned counsel submitted that the Claimant has failed to establish any breach of the contract of employment between the Claimant and 3rd Defendant {formerly the 2nd Defendant} against any of the Defendants and urged this Honourable court to so hold and resolve issue one in favour of the defendants against the claimant.

 

On the second issue whether the Claimant has placed sufficient evidence to be entitled to the reliefs sought in this case against the defendants jointly and severally. Learned counsel adopted all his submissions in issue one and further submitted that the Claimant has not placed sufficient evidence to be entitled to the reliefs claimed as it is a trite principle of law that a party who seeks for declaration that a termination of his employment was wrongful must establish in court the conditions of service and non compliance with the terms of the conditions of service with the terms of the conditions of employment. He placed reliance on the cases of Organ & Ors vrs Nig. Liquified Natural Gas Ltd & Anor {2013} LPELR 20942 {SC} and University of Calabar vrs Essien {1996} LPELR 3416 {SC}. Learned counsel submitted that a critical look at the Claimant’s evidence shows that the condition of service contract between the Claimant and the 3rd Defendant is to the effect that the claimant was only entitled to one month salary in lieu of notice upon confirmation of his employment. Therefore, as a cardinal requirement the Claimant’s pleading that his employment was confirmed ought to have been supported by adducing credible evidence, failure on the part of the claimant is fatal to his case. He relied on the case of Akinbade & Anor vrs Babatunde & Ors {2017} LPELR 43463{SC}. Learned counsel reproduce the three declaratory reliefs sought by the claimant from this Honourable court and argued that the claimant in one breath in reliefs 1 and 2 seeks benefit from the letter of termination of employment dated 8th February, 2011 {exhibit Cw1002} but in another breath in relief 4 seeks to nullify letter of termination of employment dated 8th of February, 2011 {exhibit Cw1002}. Learned counsel argued that a party cannot be allowed to approbate and reprobate at the same time on the same issue. A party is also prescribed from benefiting from a void or nullified act. He cited the case of Dr. Atiku Aderonpe vrs Alhaja Sobalaje Eleran {2018} LPELR 46308 {SC} p. 12 – 26 paras F – D. Learned counsel argued that the Claimant in paragraph 19 of his witness statement on oath that he suffered financial hardship and embarrassment as a result of the refusal by the Defendants to pay him one month’s salary in lieu of notice since February, 15th 2011. The question is, was there any promise or agreement between the Defendants and the Claimant where the Claimant was to be paid on month’s salary in lieu of notice on the 15th of February, 2011? Obviously no such agreement was pleaded and adduced in evidence. Learned counsel contended that the Claimant’s failure to lead evidence to establish the declaratory reliefs is very fatal and renders nugatory all the declaratory reliefs.

 

In respect to relief 3 {a} learned counsel argued that the Claimant also failed to plead or lead evidence on how he arrived at the sum of N53, 173. 42 {Fifty Three Thousand, One Hundred and Seventy Three Naira, Forty Two Kobo} as his one month salary from the breakdown of the Claimant’s emolument on exhibit Cw1001, there is no where it is stated that the Claimant was entitled to N53, 173. 42 as his one month salary. The law is that special damages must be specifically pleaded and proved before a party seeking same can be entitled to such damages. He cited the case of Ozueh vrs Ezeweputa {2005} 4 NWLR {pt. 915} 221. Learned counsel submitted that with respect to relief 3 {b} and {c} the Claimant cannot be entitled to such reliefs because there is no evidence before the court how he reasonably suffered the damages of N10, 000, 000.00 {Ten Million Naira} in connection to the purported breach of the contract of employment and there is nowhere in exhibit Cw1001 that speculated the 23% or 10% interest upon any breach. He relied on the case of Agu vrs General Oil Limited {2015} LPELR – SC/62/2005. Learned counsel urged this Honourable court to resolve the second issue in favour of the Defendants against the Claimant.

 

In conclusion, learned counsel urged this Honourable court to dismiss the entire claims of the Claimant for being unmeritorious, frivolous and merely gold digging.

 

THE SUBMISSIONS OF THE CLAIMANT

 

Learned counsel to the Claimant formulated two issues for determination in his Final Written Address to wit:

 

a.      Whether in view of the totality of evidence adduced in this case before this Honourable court the Defendants are either jointly or individually liable in breach of the contract of employment between the Claimant and 3rd Defendant {formerly the 2nd Defendant}.

 

b.     Whether the Claimant has placed sufficient evidence to be entitled to the reliefs sought in this case against the defendants jointly and severally.

 

Learned counsel submitted that the two issues above can be collapsed into one issue to wit:

 

i.                    Whether the Claimant is entitled to his claims in this suit.

 

In arguing the issue for determination, learned counsel argued that the defendants in their final written address submitted that the contract of employment {exhibit Cw001B} was between the 2nd Defendant {which according to them, metamorphosed into the 3rd Defendant} and the Claimant. The argument of the Defendants that the 1st Defendant is not privy to the contract and therefore cannot be bound by it is misconceived. Learned counsel argued that a careful study of the letter of employment {exhibit Cw001A}, the contract of employment {exhibit Cw001B} and the letter of termination of employment {exhibit Cw002} shows the finger prints of the 1st Defendant all over the place. Learned counsel highlighted all the areas where the 1st Defendant’s name was mentioned in the above mentioned exhibits and contended that it is clear that the 1st Defendant is the actual employer of the Claimant, after specifically mentioning the 1st defendant, fidelity bank plc in paragraph 3 of the letter of employment, under exhibit Cw001B it was stated under the headings “remuneration” and “period of notice” respectively that “the bank will pay salary”. It is a common knowledge of which this Honourable court can take judicial notice pursuant to section 122 {i} {m} of the Evidence Act, 2011 that salary is usually paid to the employee by the employer. Learned counsel contended that the only inference that can be drawn from the foregoing is that what transpired between the parties in this suit was an agency relationship. The 1st defendant is the actual employer which engaged the 2nd/3rd Defendant as its agent to recruit the Claimant for employment. Learned counsel referred this Honourable court to exhibits Cw001A, Cw001B, Cw002 and exhibit Dw001 and the evidence of Dw1 on 3/12/2020 when he admitted during cross examination that the 1st Defendant related with the Claimant based on exhibit Cw001B, which is the contract of employment. Learned counsel submitted that the immutable principle of law as it relates to agency is that he who acts through an agent equally acts by himself. He cited the case of Essang vrs Aureol Plastic Ltd & Anor {2002} FWLR {pt. 129} 1471 @ 1488 to 1489. Therefore, the contention by the defendants that the 1st Defendant is not privy to the contract of employment {exhibit Cw001B} is unsustainable from the contents of exhibit Cw001A, Cw001B, Cw002 and Dw001 it is clear that the 1st Defendant was the actual employer paying salary to the Claimant and it will be unfair and unjust for the 1st Defendant to deny liability for failing to pay the Claimant his month’s salary in lieu of notice. Learned counsel urged this Honourable court to hold that the Defendants are jointly and severally liable to the Claimant for failing/neglecting to pay him one month’s salary in lieu of notice upon termination of contract. He relied on the case of Mr. Morrison Owupele Inigba vrs Integrated Services Ltd & Anor {2015} 57 NLLR {pt. 195} 268.

 

In response to the submissions contained in the Defendants’ final address in pages 7, 8, 9 and 10 where the Defendants’ counsel contended that the claimant’s employment was not confirmed and that exhibit Cw002 did not breach the terms of the contract of employment is false. Learned counsel submitted that at paragraph 9 of his amended statement of facts establishing the cause of action and paragraph 9 of Witness Statement on Oath both filed on 11th December, 2019 the Claimant pleaded and gave unchallenged evidence that his employment was later confirmed and paragraphs 7 of the Defendants’ statement on oath filed on the 23rd day of October, 2020 does not in any way controvert the evidence of the Claimant that his appointment was later confirmed by the Defendants as it is trite law that general traverse is not an effective way of denying any allegation of fact contained in pleadings. There must be specific denial of the material fact alleged. Learned counsel submitted that the Claimant during cross examination on 11/3/2020 stated that his employment was confirmed though there is no document showing that he was confirmed. However, with leave of court he went ahead to explain how his employment was confirmed by the 1st Defendant. He said that he was sent for training/induction in Lagos and that it was after the training that his employment was confirmed and this piece of evidence was never challenged by the defendants. Learned counsel urged this Honourable court to hold that the employment was confirmed and as such the claimant is entitled to one month’s salary in lieu of notice upon termination of his employment.

 

The Defendants’ counsel in their final written address argued that the letter of termination of employment {exhibit Cw001B} did not breach the contract of employment {exhibit Cw001B} is false. Learned counsel argued that paragraph 2 of exhibit Cw001B reads in part thus “in line with contract of service, you will be paid one month’s basic salary in lieu of notice” and in exhibit Cw001B under the heading “period of notice” reads in part thus “the bank undertakes to give a maximum of one month’s notice of any termination of employment or will pay salary in lieu thereof”. The position of the law is that what governs every master servant relationship such as the one between the Defendants and the Claimant is the contract of employment. He cited the case of Shuaibu vrs U.B.N plc {1995} NWLR {pt. 388} 173.

 

Defendants’ counsel argued that in his final written address pages 10 and 11 that the claimant was not entitled to the one month’s salary because their exhibit Dw001 and Dw001A shows that the Claimant was indebted to the employer but throughout their pleading and evidence the claimant has maintained that he was never served with exhibits Dw001 and Dw001A. During cross examination on the 03/12/2020 Dw1 admitted that there was no endorsement on exhibit Dw001 showing that the Claimant received it and no place on exhibit Dw001 showed that the Claimant acknowledged receipt on the paragraph 6 which states “kindly acknowledge receipt”. In civil cases a party proves his case on the preponderance of evidence or balance of probability and so the burden of proving any material fact lies on the party who allege. He cited the case of Ekeagwi vrs Nigerian Army {2010} 42 NSCQR1238 @ 1253. Learned counsel contended that the Defendants failed to produce any evidence, whether documentary or otherwise, to say that the documents were served on the Claimant. Learned counsel urged this Honourable court to hold that the Defendants are jointly and severally liable to the Claimant for failure to pay him his one month salary in lieu of notice nor furnish him with information about his purported indebtedness or otherwise to the Bank on or before the 15th of February, 2011 as contained in paragraph 2 of the letter of termination of employment and exhibits Dw001 and Dw001A respectively amounts to an afterthought, bereft of any probative value.

 

The Defendants’ counsel in arguing their issue No 2 contended that the Claimant is not entitled to his claims because the Claimant did not plead sufficient evidence before this Honourable court and cited the cases of Organ & Ors vrs Nig. Liquefied Natural Gas Ltd & ANOR amongst others. The common ground of all the authorities cited by the Defendant is that a Claimant who seeks a declaration that the termination of his employment was contrary to the contract of services must prove to the court that:

 

a.      There is a contract of employment between him and the Defendant and

 

b.     The contract of employment was breached, including the way and manner of the breach.

 

Learned counsel submitted that this argument is untenable on the ground that the Claimant pleaded exhibits Cw001 and Cw001B which were duly admitted by the court and on the requirement that the Claimant must show the particular term of the contract of employment that was breached. Learned counsel referred this Honourable court to paragraph 14 of the amended statement of facts establishing the cause of action filed on 11/12/2019 as well as paragraphs 3 {a} 4{b} of the reply to the Defendants’ Amended Joint Statement of Defence filed on the 23/01/2020. Learned counsel submitted that the important questions now begging for the defendants to answer are as follows:

 

a.      Whether the employment of the Claimant was confirmed.

 

b.     Whether the termination of the Claimant’s employment complied with the requirement in exhibit Cw001B.

 

On the first question, learned counsel contends that the Claimant had pleaded and led evidence that his employment was confirmed and this piece of evidence was never challenged is controverted by the Defendants and the law is clear concerning unchallenged evidence which is that the case of Amayo vrs Erinwingbovo {2006} 5 S.C.N.J 1 @ pg 9.

 

On the second question, whether the termination of employment was done in compliance with the contract of employment. Learned counsel submitted that the Claimant pleaded and led credible evidence that the termination of his employment was in breach of his contract of employment. He referred this Honourable court to paragraphs 13, 14, and 15 of the amended statement of facts filed on 11/12/2019 which were equally replicated seriatim in the accompanying witness statement on oath.

 

In pages 15 and 16 of the Defendant’s Final Written Address, the Defendants questioned how the Claimant arrived at the figure N53, 173. 42 as his one month’s salary. In reply learned counsel contended that in the contract of employment under the heading remuneration”, it was stated inter alia thus “salary will be paid at the rate of N638, 081. 00 per annum”. We have twelve months in a year and to determine the Claimant’s one month’s salary divide N 638, 081. 00 by 12 and one will get N53, 173. 42. He also referred this Honourable court to the salary break down {exhibit Cw001C}.

 

The Defendants counsel in pages 13 and 14 had argued about reliefs 1, 2 and 4. In response learned counsel submitted that the reliefs sought particularly reliefs 1 and 2 are not premised on the impropriety of the letter of termination {exhibit Cw002} but on the ground that the Defendants by exhibit Cw002 at paragraph 2 stated on or before the 15th of February, 2011, they were going to pay him his “one month’s basic salary”,. The Claimant seeks redress for the injury he suffered as a result of the failure by the Defendants to pay him his one month’s salary in lieu of notice, upon termination of his employment. Thus relief 4 becomes more or less academic, if the court finds that the Claimant is entitled to one month’s salary in lieu of notice, hence the Claimant is not seeking for re-instatement. Learned counsel therefore withdraws Relief No. 14 and accordingly urged this Honourable court to strike it out.

 

In conclusion, learned counsel urged this Honourable court to hold that the Claimant has proved his case beyond the balance of probability and also urged this Honourable court to invoke its inherent powers in matters of this nature to award further punitive damages outside the ones claimed by the Claimant so as to serve as a deterrent to some employers who cash in on helplessness situation in our economy to exploit Nigerian youth such as the claimant.

 

DEFENDANTS’ REPLY ON POINTS OF LAW

 

In response to the submissions of the Claimant’s counsel in his Final Written Address learned counsel to the Defendant filed a reply on points of law dated the 8th day of February, 2021 and filed on the 16th day of February, 2021. Learned counsel in response to the submissions in paragraph 1.10 of the Claimant’s Final Written Address argued that the law absolutely proscribes or forbids misstatement of facts in a Final Written Address with a calculated attempt to hoodwink the court. He cited the case of Chevron {Nig} Ltd vrs Titan Energy Ltd {2014} All FWLR pt 758 p. 884 @ p. 916 para F. Learned counsel submitted that contrary to the facts stated by the Claimant in paragraph 1.10 of the Claimant’s Final Written Address, it is pertinent to put the record straight that the Claimant neither pleaded nor gave evidence on how and where or the usual practice of confirmation of the 1st Defendant employees. The Claimant only stated during cross examination that he has no document to produce to prove his assertion that his employment was confirmed.

 

In response to the submissions in paragraph 8.4 and 3.5 of the Claimant’s Final Written Address, learned counsel submitted that words or clauses in a document are not interpreted in isolation but must be construed as a whole. He cited the case of Okogie vrs Epoyun {2011} All FWLR Pt. 565 pg 378 @ pg 393 paras A –B. Learned counsel argued t hat counsel to the claimant had reproduced part of exhibit Cw1001 {Letter of Employment dated December 4th 2007} and Exhibit Cw1002 {Letter of Employment dated February 08, 2011}. Learned counsel submitted that the Claimant’s emphases a complete misplacement and an isolated interpretation. The law is that where there is a condition precedent to the performance of any obligation under a contract, the obligation only crystallizes upon the existence or fulfillment of such condition. He cited the case of Njaba Local Government Council vrs Chigozie & ors {2010} LPELR 9138 {CA}. Learned counsel submitted that the issue of “one month notice of any termination of employment or will pay salary in lieu thereof ….” In the extract from exhibit Cw1001 only crystallizes in favour of the Claimant upon confirmation of the employment. Therefore, it is not automatic as the Claimant must evidentially prove his assertion that his employment was confirmed which he failed to do so. In response to the submissions in paragraphs 3.16, 3.17, 3.18 and 3.19 of the Claimant’s Final Written Address, it is trite law that the claimant must only succeed on the strength of his case and not on the weakness of the Defendants’ defence. He cited the case of Obawole vrs Williams {1996} 12 SCN 415. It behooves on the Claimant to proof the assertion that the employment was confirmed but this burden was never discharged by the Claimant. Learned counsel in response to the submissions in paragraphs 3.16, 3.17, 3.18 and 3.19 of the Claimant’s Final Written Address submitted that it is trite principle of the law that documentation is the hallmark of banking. He cited the case of Standard Trust Bank Limited vrs Barrister Ezenwa Anumnu {2008} All FWLR {pt. 399} 405 Ratio 9. Learned counsel submitted that the best form of evidence in the circumstance is documentary evidence, this is because the Claimant who was employed via a document as the Defendant’s usual practice can only be confirmed by a letter of confirmation.

 

In conclusion, learned counsel urged this Honourable court to dismiss the entire suit of the Claimant.

 

COURT’S DECISION

I have gone through all the processes in this suit including the counsel’s legal submissions. To my mind, the issues as distilled by claimant’s counsel for determination of this court are quite poignant; they address the concerns of the parties in this suit. I shall therefore adopt the issues in the determination of the suit.

            Whether the Claimant has placed sufficient evidence to be entitled to the             reliefs sought in this case against the Defendants jointly and severally.

To my mind the most convenient point to kick start consideration of the parties’ case in this judgment is to identify facts that are not contested by the parties. Parties are in agreement that there was a contract employment. The only point of divergence is whether defendants are jointly and severally bound by the contract of employment. Claimant in paragraphs 7 and 8 of witness statement on oath attempted to establish contract of employment between him and the defendants. He tendered in evidence his letter of employment. The letter and conditions of service was admitted and marked Exhibit CW1 001A, CW1 001B and CW1 001C. Defendants admit this set of facts. Claimant counsel argued that the letter of employment was null and invalid because according him, it was breached. I do not agree with him. The fact that an agreement was breached does not render it invalid.

Defendants concede that there was a valid contract of employment. I agree with them. The only quarrel of the defendant with issue of contract of employment is that the 1st defendant is and should not be joined or made a party to it.

It is a long settled principle of our adjectival law that facts admitted need no further proof. Section 75 and 123 of Evidence Act and cases of ARABAMBI Vs A.B.I LTD (2006)3MJSC pg 96 @ paras A-B. , OKPARAEKE V. EGBUONU (1941) 7 WACA 53 at 55; DIM V. AFRICAN NEWSPARERS (1990) 3 NWLR (PT. 139) 392 UMENWA V. UMENWA (1987) 4 NWLR (PT. 65) 407 and UGO V. OBIEKWE (1989) 1 NWLR (Pt. 99) 566.

The 1st defendant had contended that there was no privity of contract between it and the claimant. In fact let me for ease reference quote verbatim defendants’ evidence in paragraph 7 of their joint witness statement on oath in this regard:

“that the Defendants deny paragraphs 7, 8, 9, and 10 of the statement of facts to the extent that the Claimant was employed by Fidelity Union Securities Limited (2nd Defendant) now known as Fidelity Securities Limited (3rd Defendant)  and seconded to the 1st Defendant as a note counter. Therefore, the 1st Defendant did not at any point in time enter into any form of contract of employment with the Claimant”

To resolve this seeming intricate question, I shall have resort to the letter of employment. This to me is the safest route. In taking this route, I find refuge in section 91 and 92 of the Evidence Act. It is now firmly settled law that documentary evidence is the best evidence. It is the best proof of the contents of such document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded. Where as in the instant case, a document (letter of employment) is admitted in evidence with respect to and in proof of contract of employment and the document having been admitted as genuine, correct and existing, oral evidence cannot be given or ascribed preference over the content of the said document. AYEMWENRE v. EVBUOMWAN (2019) LPELR-47213 (CA), ADIKE VS OBIARERI (2002) FWLR (PT. 131) 1907; JELILI VS. ADEBOMI (2009) LPELR 4351 (CA).

The letter of employment Exhibit CW1 001 which is written on Fidelity Union Securities Limited reads:

December 4, 2007

Ukpara Ugochukwu Gibson

…………………………………….

………………………..

 

LETTER OF EMPLOYMENT

We refer to your application for employment to the company and have the pleasure in making you the following offer effective immediately

You will be offered as Note Counter on secondment to Fidelity Bank Plc

………………………………………………………………………………………………….

…………………………………………………………………………………………………….

As you come in, the the Bank’s Human Resources team will take you through their five shared value………………

Kindly sign in the space provided, if you accept our offer.

Thank you

Yours faithfully,

Chris Okenwa

For: Fidelity Union Securities Limited

The contract of employment/Conditions of offer contains the space provided for signature of the claimant. Contract of employment/Conditions of offer is marked Exhibit CW1 001B.

 

It is very explicit from the Exhibit CW1 001A that claimant was employed as a note counter and on secondment to Fidelity Bank Plc 1st defendant. The question that begs answers is what is the meaning and legal implication of a secondment. secondment is a temporary transfer of an employee to another role or business area away from his/her primary job. Taduggoronno vrs  Gotom (2002) 4 NWLR (Pt. 757) 453.

Claimant was employed for 1st defendant. He never for once served the 2nd defendant. He was never transferred. He served only the 1st defendant for about 4 years.

Exhibit CW1 001A states clearly that claimant is offered employment as a note counter and his employment is with immediate effect. This presupposes that the claimant was employed by defendants for the service of 1st defendant.  I am fortified in this position by global reading of Exhibit CW1 001A and Exhibit CW 100B. From Exhibit CW 100B particularly Condition of Offer and Period of Notice clauses thereof, it was more abundantly clear that claimant was in employment of the 1st defendant. In order to properly drive home this point, let me sound like a broken record. Exhibit CW1 00B; under Period of Notice clause, claimant (on probation) is required to give a two weeks written notice of intention to resign to the bank and on confirmation, he is required to give a minimum of one month. The bank also undertakes to give a one month notice or pay salary in lieu. I find and hold that 2nd defendant is a mere recruitment agent of a disclosed principal. The riddle here is; if the 1st defendant was not the employer how did it fall on it to determine the employment. A closer look at Exhibit CW1 002 write very large on this point. Let me try to reproduce the Exhibit.

February 8, 2011

Ugochukwu

……………….

……………..

 

TERMINATION OF EMPLOYMENT

This is to inform you that your services are no longer required. Consequently, you are by this letter TERMINATED from the employment of the Bank with effect from February, 09, 2011.

Claimant’s employment was terminated from employment of the Bank!

In R.O. Iyere vrs. Bendel Feed & Flour Mill (2008) 7 -12 SC. 151 at 168 – 169,  the Supreme Court held that in a case of joint tortfeasors, where several persons are jointly liable, the Plaintiff is at liberty to select and sue anyone or any number of them and he can recover his claim in full from those he sued, see also Esang vrs. Aureol Plastic Ltd. (2003) FWLR (Pg. 129) 1471 at 148, Carlen (Nig.) Ltd. vrs. Unijos (1994) I NWLR Pt 323 Pg. 631 at 640-641 where the Supreme Court held that the University of Jos being an artificial legal entity can only enter into contracts through it’s agents, namely it’s officers and servants. The court further held that a contract made by an agent acting in the scope of his authority for a disclosed principal, is in law, the contract of the principal, and the principal, not the agent, is the proper person to sue upon such contract.

Defendants’ counsel argued that claimant was not confirmed. This submission does not represent the evidence on record. Defendant stated that claimant was entitled one month basic salary in lieu of notice. This somewhat accords with content of Exhibit CW1 001B.

It reads:

“During probation, staff is required to give minimum of two weeks written notice of intention to resign his/her employment with the Bank. On confirmation, the Bank undertakes to give a maximum of one month notice of any termination of employment or will pay salary in lieu thereof”

Probation is the testing of a person’s abilities or behavior to find out if such a person is suitable. It is a suspension of a person’s final appointment to an office until such  a person by his conduct proves himself fit to occupy the office. TOTAL (NIG.) PLC ONUOHA (20011) NWLR (PT 725) 634. Claimant served defendant for about 4 years. He was terminated not for inability to demonstrate capacity and competence. Reason for termination is was that his service was no longer required.

With all I have said above, I find and hold that claimant was an employee of the defendants and that his appointment was by conduct of the defendant deemed confirmed. B. A MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) NWLR PART 145 PAGE 506; MRS. ROSE E. EFURIBE V. DR. G. MUGBAM & ORS (2010) LPELR 4079 (CA); FIICHARLES ORGAN & 2 ORS V. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LPELR – 20942.

In the event that I am wrong in my position that claimant’s employment was confirmed, I have looked at contract of employment and I find nowhere where claimant can be denied his entitlement, even if his employment is not confirmed.

Having resolved the issue of employment of claimant by defendants, the question is whether the termination was in compliance with Contract of Employment. Under the contract, the defendant is to give a maximum of one month notice of any termination of employment or will pay salary in lieu thereof

Parties have signed unto Exhibit CW1 001B as the document to regulate their relationship. They are bound by it and on no account should terms extraneous to the contract or on which there was no agreement be read into the contract. Osesa v. Tulip Cocoa Processing Ltd (2018) LPELR-45003 (CA). I find and I hold that the Claimant is entitled to be paid a month salary in lieu of notice.

Defendant’s counsel had argued wrongly in my humble view that claimant is entitled to only basic salary. The contract of employment did not say so. Counsel cannot supplant hardcore evidence with his legal submissions. Contract of Employment states that he is entitled to salary. It did not add ‘Basic’ and counsel should not introduce extraneous words into the contract of employment. Remuneration clause thereof states thus:

“Salary will be paid at the rate of N 638,081.00 gross per annum. Salary will be paid in arrears on 23rd day of each month…………………………”

Defendants did not controvert the salary break down in Exhibit CW1 001C. They rather contended that claimant was entitled to basic salary. As such the facts therein are deemed proved. OBUMSELI & ANOR v. UWAKWE (2019) LPELR-46937 (SC).

Defendants had averred that claimant was indebted to the 1st defendant in the sum of N 7,586.63 and that having set off their monthly N 4,130.25 monthly basic salary, claimant had nothing left to claim. They relied on Exhibit DW-001 – DW-001A. Claimant rightly in my humble view, challenged the defendants to produce proof of delivery of Exhibit DW-001 – DW-001A to the claimant. Defendants were unable to produce any such proof because there is none. I am unable to believe the narrative of the defendant in this regard. I find same to be unbelievable, incredible and an afterthought aimed filling a yarning gap in their case.

I therefore find and hold that claimant is entitled to one month salary in lieu of notice.

Claimant prays the court for award of general damages. It is trite law that in matters of contract of employment, where an employee proves an infraction of the terms of employment, the employee would be entitled to damages. This would be what was due to the employee for the period of notice. Shell Petroleum Company Limited vrs Olanrewaju (2008) 18 NWLR (PT 1118) 1 at 7, Isievore vrs NEPA (2002) 13 NWLR (Pt. 784) 417, 437-438.

I have held earlier in this judgment that the Defendants violated the contract of employment by not paying claimant one salary in lieu of notice. They have held onto claimant’s one monthly salary from 15th February, 2011 till date. I note however that claimant grouse is for defendants’ refusal to pay his one month salary in lieu of notice and not that his employment was determined for any misconduct. Claimant is therefore entitled to one month salary as general damages being what would have been due to him, if defendants have faithfully observed the conditions of service.

In the final analysis, I hold that the case of claimant succeeds. For the avoidance any doubt, prayers 1, 2, 3 (a) are granted. On prayer 3 (b), claimant is entitled to N53, 173. 42k as general damages. 10% post judgment interest is awarded till judgment sum is fully paid. Claimant failed to lead evidence on pre-judgment interest. Prayer 4 therefore is refused. 

I award a cost of N100, 000. 00 against the Defendants.

Judgment is hereby entered accordingly.

 

 

 

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

 

PRESIDING JUDGE

 

YENAGOA DIVISION

 

NATIONAL INDUSTRIAL COURT OF NIGERIA