IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 12TH DAY OF JANUARY, 2022
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/35/2019
MR. OGBECHE ANTHONY NNAMDI………………CLAIMANT
KEYSTONE BANK LIMITED………………………. DEFENDANT
J U D G M E N T
Until the termination of his appointment, the Claimant was the Relationship Manager & Associate of the Defendant. His appointment was terminated on ground of consistent poor performance. His case, in a nutshell, is that based on the collective agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIA) and Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI); (the Defendant being a member of ASSBIFI), he is entitled to severance package as contained in the ASSBIFI agreement for the duration of the years he served the Defendant. The Claimant’s contention is that he was not guilty of fraud, gross misconduct or negligence as to deny him his severance benefits and guaranteed pay in line with the ASSBIFI agreement and that non-performance of service is not stated as a condition for non-payment of severance allowance in the Defendant’s Staff Manual and Condition of Service.
2. Being aggrieved by the actions of the Defendant, the Claimant instituted the instant action, vide Complaint and Statement of Facts filed in this Court on 17/10/2019, wherein he claimed against the Defendant the reliefs set out as follows:
1. The total sum of Eleven Million, Eight Hundred and Nine Thousand Naira (N11,809,000.00) only for 11 years and above services to the Defendant in line with the terms of the collective agreement between the Bank and ASSBIFI which the Defendant adopted and followed as part of the contract or condition of service.
PARTICULARS OF TERMINATION OR SEPERATION BENEFITS
Representing 18 months guaranteed pay monthly salary in the sum of N465,000.00 (Four Hundred and Sixty-Five Thousand Naira only) quarterly incentive/benefits N406,000.00 (Four Hundred and Six Thousand Naira only).
i. Monthly earning of N465,000.000 (Four Hundred and Sixty-Five Thousand Naira only) multiply (sic) by 18 months guaranteed in the sum of N8,370,000.00 (Eight Million, Three Hundred and Seventy Thousand Naira only).
ii. Six quarterly guaranteed payments for 18 months in the sum of N2,439,000.00 (Two Million, Four Hundred and Thirty-Nine Thousand Naira only).
Total = N10,809,000.00
2. A Declaration that the termination of the Claimant’s employment with the Defendant on 10th January, 2019 based on poor performance is unlawful as it is based on non-existent ground which did not accord with the contract of employment and Keystone Bank Limited manual.
3. General damages in the sum of N1,000,000.00 (One Million Naira) only.
3. The Defendant joined issues with the Claimant in the Statement of Defence deemed filed on 04/12/2019. Essentially, the Defendant denied the substance of the claim and contended that the termination of appointment of the Claimant was in accordance with the contract of employment and that the Claimant had been duly paid his severance benefits.
The Claimant filed his Reply to the Statement Defence on 21/01/2020.
4. At the plenary trial, the Claimant testified in person and called one (1) other witness, one Hamisu M. Abdullahi. Between them, the Claimant and his witness a total of thirteen (13) documents were tendered in evidence in further support of the Claimant’s claim. The Claimant and his witness were duly cross-examined by Defendant’s learned counsel.
For the Defendant, one Auwal Mohammed, a banking officer, testified on her behalf. He adopted his witness Statement on Oath as his evidence-in-chief. He tendered five (5) sets of documents in evidence as exhibits and was equally cross-examined by the Claimant’s learned counsel.
5. At the conclusion of plenary trial, parties filed and exchanged their written final addresses as prescribed by the Rules of this Court.
The Defendant’s final address was filed on 30/03/2021. His learned counsel, Awwal A. Salisu, Esq., formulated a sole issue for determination, set forth as follows:
“Whether, in view of the facts and circumstances of this suit, the Claimant is entitled to the reliefs claimed.”
For the Claimant, his final address was filed on 15/06/2021. His learned counsel, I. L. Ogor, Esq., formulated three issues for determination in this suit, namely:
1. In the circumstance of the case, whether the Claimant is not entitled to:
a. Monthly earning of N465,000.00 (Four Hundred and Sixty-Five Thousand Naira only) multiply (sic) by 18 months guaranteed in the sum of N8,370,000.00 (Eight Million, Three Hundred and Seventy Thousand Naira only).
b. Six quarterly guaranteed payments for 18 months in the sum of N2,439,000.00 (Two Million, Four Hundred and Thirty-Nine Thousand Naira only).
c. General damage (sic) in the sum of N1,000,000.00 (One Million Naira only)
2. In the circumstances of this case, whether the warning performances purportedly served on the Claimant was not ineffective in the face of condition of service, Exhibit D5.
3. In the circumstances of this case, whether Exhibit D4/C6 i.e., the purported letter of resignation emanating from the Claimant’s appeal letter, Exhibit D3 amounts to resignation as envisaged in the conditions of service of the Defendant Exhibit D5.
The Defendant filed a Reply on Points of Law on 13/10/2021.
6. I have painstakingly examined the totality of the pleadings filed by both parties in contention; the reliefs claimed, the totality of the admissible and relevant evidence adduced at the trial; and the totality of the written addresses and oral summations of learned gentlemen for the two parties; and my view is that three issues call for determination in this suit. Without prejudice to the other issues formulated for determination by the respective learned counsel, I shall proceed to determine this suit on the basis of the issues set out as follows:
1. Whether the termination of the Claimant on the ground of non-performance is wrongful as alleged?
2. Whether Exhibit C2 forms part of the employment agreement between parties?
3. If issues (1) and (2) above are resolved in the negative, whether or not the Claimant has established by credible evidence, his entitlements to the reliefs claimed in this action against the Defendant?
In proceeding to determine these issues, I must state that I had carefully considered and taken due benefits of the totality of arguments canvassed by the respective learned counsel in their written final submissions; to which I shall endeavor to make specific reference as I consider needful in the course of this judgment.
7. As a preliminary point, it is pertinent to note that the Claimant filed his Reply to the Defendant’s Statement of Defence on 21/01/2020. The said process was filed after the prescribed period allowed by Order 33 Rule 1 of the Rules of this Court. I note the contention of the Defendant’s learned counsel that the resultant effect of failure to file the Reply within the time prescribed is that the process is not proper before the Court; and as such cannot be considered by the Court.
I agree with the submissions of the Defendant’s learned counsel in this regard. The evidence on record shows that indeed the Claimant’s Reply was filed out of time. The said Reply shall not be considered as there was no application before the Court to extend the time to file same. Rules of Court are to be obeyed. The Claimant’s Reply is hereby struck out.
RESOLUTION OF ISSUES
8. The case of the Claimant is that by an agreement made on 28/08/2008, he was employed by the Defendant, then Bank PHB Plc as Relationship Manager and Associates, and that consequent upon the transfer of Bank PHB Plc to Keystone Bank Ltd by AMCON, his services was transferred to Keystone Bank Ltd on the same terms and conditions as Bank PHB Plc.
According to the testimony of the Claimant, to ensure there was an unbroken relationship right, the Central Bank of Nigeria had promoted various policies such as the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) to confer rights on employees in Banks; that a collective agreement of ASSBIFI was adopted by the Defendant as part of the contract or condition of service and that the benefits under ASBIFI are benefits intended to enhance the conditions of early retirement payable on dismissal of employees who have reached certain years of service to the Defendant.
9. The Claimant contends that poor performance is not misconduct or ground of termination of appointment; that he was not guilty of fraud, gross misconduct or negligence and was not liable to dismissal as to deny him of his severance benefits and guaranteed pay in line with ASSBIFI as adopted by the Defendant at all material times.
The Claimant further testified that as a result of the damaging nature of the letter of termination, he appealed to the Defendant for the conversion of letter of termination to letter of resignation; and further testified that based on his letter of appeal, he wrote a letter of resignation of his appointment.
According to the Claimant, he had performed well but the Defendant merely termed his performance as poor to deny him his severance benefits and guaranteed pay in line with ASSBIFI. The Claimant testified further that all the members of staff of the Defendant who were served with notices of cessation of employment had been paid their severance benefits based on their years of service to the Defendant and several months of guaranteed pay. The Claimant contends that his acceptance of salary in lieu of notice is not tantamount to acceptance of invalid and unlawful termination thereby denying him of his severance benefits and further contends that the Defendant’s staff manual has no provision to exit non – performing members of staff without severance package.
10. The testimony of CW1, one Hamisu Mohammed Abdullahi, who claims to be a former employee of the Defendant is that he was one of the members of staff affected by the disengagement exercise carried out by the Defendant in 2017 and that as condition for his early retirement, his terminal benefits of Five Million, Two Hundred and Seventy-Seven Thousand, Three Hundred and Fifty-Eight Naira and Seventy-Nine Kobo (N5,277,358.79) had been paid in line with the terms of collective agreement between the Defendant and ASSBIFI.
11. In further support of the Claimant’s case, the following documents namely: Notice of cessation of appointment of Abdullahi Hamisu M. (CW1) dated 28/12/2017, the Procedural and Main Collective Agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institution (ASSBIFI), Offer of employment of the Claimant with Bank PHB Plc dated 22/07/2008, Internal Memos of the Claimant to the Defendant, Letter of termination of Employment of the Claimant dated 10/01/2019, Appeal for conversion of termination of appointment of service to resignation of appointment dated 11/01/2019, Letter of resignation of appointment dated 11/01/2019, Claimant’s solicitors letters to the Defendant dated 02/04/2019 and 20/06/2019, Defendant’s reply to Claimant’s Notice of resignation dated 05/03/2019, Defendant’s reply to Claimant’s solicitor’s letter dated 25/07/2019, Defendant’s Human Capital Policy Manual and statement of account of Maina Mohammed were admitted in evidence as- Exhibit C1, Exhibit C2, Exhibit C3, Exhibit C4, Exhibit C5, Exhibit C6, Exhibit C7, Exhibits C8 and C8A, Exhibits C9 and C9A, Exhibit C10 and Exhibit C11respectively.
12. Evidence on record, as adduced by DW1 is that the Claimant’s employment was not determined in the general disengagement exercise carried out by the Defendant in 2017 but that his employment was determined on the ground of poor performance. DW1 further testified that between 23rd October, 2017 to November 2017, several performance warnings were issued to the Claimant on his consistent poor performance; that the Claimant accepted his letter of termination of his appointment and that he subsequently appealed for a conversion of the termination of his appointment to resignation of appointment and that his resignation of appointment was accepted by the Defendant.
13. The Defendant’s witness testified further that the Claimant was aware of the Defendant’s compensation structure with regard to severance benefits and guaranteed pay and that his accrued salary, benefits and one month’s salary in lieu of notice had been paid. The Defendant maintained that the Claimant’s employment was determined for consistent poor performance and the Defendant was not in breach of any collective agreement.
14. The following documents were admitted in evidence to further buttress the case of the defence: Defendant’s Internal Memos to the Claimant captioned, “performance warning” as Exhibits D1 – D1G, Claimant’s Letter of termination of appointment as Exhibit D2 (same as Exhibit C5), Appeal for conversion of termination of appointment of service to resignation dated 11/01/2019 as Exhibit D3 (same as Exhibit C6), Letter of resignation of appointment dated 11/01/2019 as Exhibit D4 (same as Exhibit C7), Defendant’s Human Capital Policy Manual as Exhibit D5 (same as Exhibit C10) respectively.
15. Now, the general principles guiding the proof of a claim for wrongful or unlawful termination or dismissal of employment have remained sacrosanct. For the Claimant to succeed in his claim, he must prove that the Defendant breached the condition of service of his employment. See Amodu Vs Amode  5 NWLR (Pt 150) 356; Angel Spinning & Dyeing Ltd Vs Ajah  13 NWLR (Pt 685) 532; Ogumka Vs Corporate Affairs Commission  LPELR 4891.
The Claimant contends in paragraphs 9 and19 of the Statement of Facts that poor performance is not misconduct by the provisions of the Defendant’s manual as ground of termination of appointment and further contends that the Defendant acted outside the grounds for termination of appointment as stipulated in the manual. The Claimant testified that he appealed to the Defendant for the conversion of the termination of his appointment to resignation of appointment. Exhibit C5, letter of termination of appointment, Exhibit C6, Appeal for conversion of termination of appointment to resignation of appointment, Exhibit C7, resignation of appointment and Exhibit C10, the Defendant’s Human Capital Manual were admitted in evidence to buttress his claim.
The further testimony of the Claimant under cross-examination is that he voluntarily wrote Exhibits C6 and C7 and that these were accepted by the Defendant.
16. The Defendant’s sole witness, DW1 testified that between October and November 2017, several performance warnings were issued on the Claimant on his consistent poor performance and the Claimant was thereby put on notice of the possibility of the review of his relationship with the Defendant. The several performance warnings issued on the Claimant were admitted in evidence as Exhibits D1 - D1G respectively.
While answering questions under cross-examination, DW1 testified further that the Defendant adopted its policy to terminate the Claimant’s appointment after it had issued several performance warnings to him.
17. As rightly submitted by learned counsel for the Defendant, the crux of the Claimant’s grouse is on the refusal to pay his severance benefits and the manner his appointment was determined by the Defendant. As I earlier stated, the onus is on the Claimant to prove that the Defendant breached the terms and conditions of his employment. The ground of the termination of appointment of the Claimant as stated on the face of Exhibit C5/D2 is for poor performance. The Claimant had alleged that the Defendant acted outside the grounds stipulated in Exhibit C10, the Defendant’s manual.
On his part, learned counsel for the Defendant submitted that the termination of the Claimant’s employment was in line with paragraph 6.6 of Exhibit C10/D5.
The said paragraph 6.6 of Exhibit C10/D5 provides:
“The disciplinary procedure should not be used in cases of inefficiency. An employee may be inefficient because he/she just does not have the ability to carry out his/her duties, but does not come under the heading of industrial misconduct. If an employee is inefficient, the person shall be informed of his/her shortcomings in writing. If such inefficiency continues, the Performance Department in HCMD should issue a final letter stating that if there is no improvement in the employee’s performance within a reasonable period (usually not less than one month but not exceeding three months), the Bank will have no option other than to reconsider his/her services”. (Underlining for emphasis)
18. The evidence adduced by DW1 is that several performance warnings were issued to the Claimant before his employment was terminated.
For proper appreciation of the issue at hand, I have taken liberty to reproduce the relevant portions of Exhibits D1 – D1G.
The last paragraph of Exhibit D1, an internal memo dated 23/10/2017 written to the Claimant from the Defendant’s Human Capital Management states as follows:
“This performance is unacceptable and is of grave concern to the Executive Management. Consequently, you are to provide a detailed explanation for this consistent poor performance on or before 10:00am on Tuesday, October 24, 2017.”
Thereafter, Exhibits D1A – D1G, were further issued to the Claimant between March 2018 – December 2018. The Claimant was warned in the last paragraphs of the exhibits as follows:
“Consequently, this serves as a notice, for you to improve the branch’s PBT performance failing which management may be constrained to review your existing relationship with the Bank.”
The Claimant was subsequently issued a letter of termination of appointment, Exhibit C5/D2 on 10/01/2019, which inter-alia states as follows:
“Your appointment with the Bank is hereby terminated with effect from 11th January, 2019 following your consistent poor performance.”
19. Evidence on record further established that based on the appeal of the Claimant to the Defendant for the conversion of the letter of termination of his appointment to resignation, the Claimant wrote Exhibit C7, letter of resignation of appointment. The Defendant in Exhibit C9, accepted his resignation and the terminal account statement of the Claimant in the sum of Two Hundred and Three Thousand, Four Hundred and Fifty-Six Naira, Forty-Two Kobo (N203,456.42) only being one month’s salary in lieu of notice was also communicated to him.
20. From the foregoing facts and evidence, has the Claimant established that the termination of appointment by the Defendant was wrongful having voluntarily resigned his appointment? My answer to this poser is an emphatic No! My firm view is that the Claimant’s claim that poor performance is non-existent in the terms of his employment and Defendant’s Human Capital manual is faulty and hereby rejected.
In the present case, it is therefore not difficult to find that the Defendant exercised its right to review its relationship with the Claimant as stipulated in Exhibit C10/D5 after it issued about eight performance warnings on the Claimant. To put it differently, the termination of the Claimant’s appointment was not wrongful. And I so hold.
Issue one is therefore resolved against the Claimant. I so further hold.
ISSUES TWO AND THREE
21. Parties are ad idem that the Defendant, formerly Bank PHB, agreed to employ the Claimant as the Relationship Manager and Associates.
The argument of learned counsel for the Claimant is that paragraphs 4, 5 and 12 of the Statement of Facts are fundamental to the case of the Claimant and further argued that from the totality of the evidence adduced, the Claimant is entitled to the accrued benefits calculated from the date of his first employment, that is from 28/08/2008 to 10/01/2019, a period of over eleven (11) years.
It is the learned counsel’s further argument that the Claimant had established through CW1 that the collective agreement was adopted in the payment of CW1’s severance package.
22. On his part, Defendant’s learned counsel argued that the case of CW1 is distinguishable from the Claimant’s case; because CW1’s employment was determined on ground of cessation of employment, whilst the Claimant’s employment was determined on the ground of poor performance. Learned counsel submitted that the termination of the Claimant’s appointment was in compliance with HCP, Exhibit D5, having issued Exhibits D1A – D1G, the several warning letters.
Citing the case of Isheno Vs Julius Berger (Nig) Plc  LPELR 1544, learned counsel submitted that where there is compliance with the terms and conditions of contract of employment, such termination is valid in the eyes of the law; that the Claimant adduced no shred of evidence to justify the grant of his claims and that the Claimant has been paid one month’s salary in lieu of notice which was his entitlement.
Now, from the inferences and conclusions drawn from the evidence elicited from CW1 and the Claimant (as CW2) under cross-examination by the Defendant’s learned counsel, I totally agree with the submission of learned Defendant counsel that the determination of the employments of both CW1 and the Claimant are different. Whilst CW1 was given a notice of cessation of appointment, the Claimant’s appointment was terminated on ground of poor performance.
23. It is settled law that a Court would determine the terms of a contract and the rights of the parties from the agreement made by parties which is binding on both parties thereto. It is equally trite that in a master and servant relationship in which the relationship is purely contractual, as in the instant case, once there is a purported termination of the employment, the Court will rarely make an order that it still subsists. This is on the principle that the Court cannot force a servant on an unwilling master. However, a termination of employment by the employer would be wrongful if it is in breach of the terms and conditions of the contract. See: Geidam Vs NEPA  2 NWLR (Pt 696) 45; Texaco Nig Plc Vs Kehinde  All FWLR (Pt 94) 143 at 164; Osisanya Vs Afribank Nig. Plc  1 NWLR (Pt 1031) 565 SC Obanye Vs U.B.N  LPELR 44702
24. Now, by my understanding, the case of the Claimant is predicated on the document referred to as, “The Procedural and Main Collective Agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI)” and the Human Capital Policies and Procedures (HCP) Manual tendered in evidence in the course of trial by CW1 and the Claimant as Exhibits C2 and C10 respectively. DW1 had categorically denied that the Defendant breached any collective agreement with respect to the Claimant’s employment and had maintained that the Defendant complied with the terms and conditions of employment in terminating the Claimant’s appointment.
25. The pertinent question that arises here is, whether the Claimant can rely on the Exhibit C2, the collective agreement between the Nigerian Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) of 2005 as basis of his entitlement to severance package as claimed?
The Claimant’s averments in paragraphs 1, 3, 5, 6 and 7 of the Statement of Facts, (which averments were reproduced verbatim in the same paragraphs of his Witness Deposition on Oath) that he was employed as the Relationship Manager and Associates of the Defendant. Exhibit C3 , his letter of offer of employment was admitted in evidence in support of the facts. The implication of these depositions is that the Claimant was a senior member of staff of the Defendant.
26. The position this Court has held in a plethora of cases is that for a senior member of staff to benefit from a collective agreement, it must be pleaded and proved by concrete evidence, the membership of the senior member of the trade union in issue; and that the admission of an employer to that effect does not discharge the senior staff of the burden of proof.
See Aghata N. Onuorah Vs Access Bank Plc  55 NLLR (Pt 186) 17; Samson Kehinde Akindoyin Vs UBN Plc  62 NLLR (Pt 217) 259; Mr. Valentine Ikechukwu Chiazor Vs Union Bank of Nigeria Plc [Unreported Suit No. NICN/LA/122/2014, delivered on 12th July 2016; Mr C. E. Okeke & 3 Others Vs Union Bank of Nigeria Plc [Unreported Suit No. NICN/LA/09/2010, delivered on 26th October 2016; Mrs Benedicta Uzoamaka Marchie Vs Union Bank of Nigeria Plc [Unreported Suit No. NICN/LA/48/2014, delivered on 30th March 2017 and Mrs Bessie Udhedhe Ozughalu & Anor Vs Bureau Veritas Nigeria Limited [Unreported Suit No. NICN/LA/626/2014, delivered on 20th March 2018.
27. I had carefully perused the Claimant’s pleadings, there is no averment whatsoever as to the Claimant being a member of ASSBIFI, neither was any document tendered to prove that he was a member to enable him benefit from Exhibit C2, the collective agreement. Having not pleaded or established membership of ASSBIFI, the Claimant cannot rely on Exhibit C2 for his claims for severance benefits in this suit. And I so hold.
28. At this juncture, I should restate the trite position of the law that a claim is circumscribed by the reliefs claimed; and the duty of a Claimant is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. See Gabriel Ativie Vs Kabelmetal (Nig) Ltd  10 NWLR (Pt 1095) 399;  5 - 6 SC (Pt II) 47
It is imperative to also restate that claims for allowances and/or benefits are claims for special damages that must be claimed specially and proved strictly. See: NNPC Vs Clifco Nigeria Ltd  LPELR-2022(SC); Seven Up Bottling Co Plc Vs Augustus  LPELR-20873(CA).
29. The Claimant is claiming for monthly salary, monthly earnings and quarterly guaranteed payments. It has been held in several decisions of this Court, that an employee making a claim in an employment or labor case has the burden of proving his entitlement to the claim and the quantum of the sums claimed. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits”, being monetary sums, is a claim for special damages. See NNPC Vs Clifco Nig Ltd  LPELR-2022(SC); Mr. Ignatius Anyanwu & Ors Vs Mr Aloysius Uzowuaka & Ors  LPELR-515(SC);  13 NWLR (Pt 1159) 445 SC; Seven Up Bottling Company Plc Vs Augustus  LPELR-20873(CA). It may be fatal if, in proving an entitlement, and even if the instrument is referred to, the Claimant does not indicate the clause, section, article or paragraph that grants the entitlement claimed given that the Court is not expected to search for the relevant article(s) that substantiates the claim. In other words, the Claimant has a duty to give specific particulars of the special damages being claimed.
30. This is the context within which the Claimant can succeed in the present case. The Claimant did not refer to any law, document, contract by which he calculated this amount of his entitlements. On the basis of the foregoing analysis of the state of the evidence on record, it is glaring that the Claimant has failed to establish how he came about the computation of the amount claimed. On that basis, I hold that the Claimant has failed to establish his entitlements to severance benefits and damages of his claim Issues (2) and (3) are resolved against the Claimant. And I so further hold.
In totality, the conclusion of the Court is that the Claimant has failed to lead credible evidence in support of the reliefs claimed against the Defendant in this action. Accordingly, it is the judgment of this Court that the Claimant’s claim is unmeritorious. It shall be and it is hereby dismissed.
SINMISOLA O. ADENIYI
I. L. Ogor Esq. for Claimant
Awwal A. Salisu Esq. for Defendant