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: NOVEMBER 16, 2022 SUIT NO: NICN/AWK/32/2018
BETWEEN
Mr. Agafie Paul - Claimant
AND
Fidelity Bank Plc - Defendant
REPRESENTATION:
O.O. Ofiaeli for the Claimant.
John Onyeakpa for the Defendant.
JUDGMENT
INTRODUCTION
1. The claimant commenced this suit on 19 October 2018 vide a complaint, statement of facts and accompanying processes. By amended statement of facts filed on 28 October 2019, the claimant is praying for the following:
A declaration that the claimant is entitled to his gratuity having been eased out of his employment by the defendant either by way of credit or debit in his own account evidencing payment of gratuity to the claimant.
A declaration that the continuous debit of the claimant’s current account by the defendant without paying his gratuity is null and void and of no effect.
An order of Court mandating the defendant to write off all the accumulated debit interest posted in the claimant’s account from the date of his termination of employment till the day judgment is given.
An order of Court mandating the claimant (sic) to credit the account of the claimant with the sum of ₦1, 247, 656.00 One Million and Two Hundred and Forty Seven Thousand Naira only.
An order of Court mandating the defendant to liquidate the service loan facility of ₦962, 000.00 (Nine Hundred and Sixty Two Thousand naira only) granted and tied to the employment of the claimant from the claimant’s gratuity fund of ₦1, 247, 656.00 One Million Two Hundred and Forty Seven Thousand Six Hundred and Fifty Six Naira only.
An order of Court mandating the defendant to credit the account of the claimant with ₦64, 017.67 Sixty Four Thousand and Seventeen Naira and Sixty Seven Kobo only, as his legitimate balance from his gratuity less the loan and its cumulative interest granted him.
An order of Court mandating the defendant to pay the claimant ₦810, 000.00 being his allowances for January and February 2015 due to him as ABE1.
An order of Court mandating the defendant to pay the claimant the sum of ₦60, 047.82 being his wages for 21days work in the defendant’s firm before he parted ways with the defendant.
₦3 million naira as severance allowances and packages.
₦10million naira as general damages arising from incessant debit of the claimant account by the defendant.
10 percent interest per annum of the ₦1, 247, 565.00k from March 2015 till judgment is given and thereafter 7.5 percent interest per annum until it is liquidated by the defendant.
Perpetual injunction restraining the defendant, its agents or privies from debiting the claimant’s account as a result of the said service loan which the claimant’s gratuity has long liquidated.
2. By order of Court granted on 19 March 2019, the defendant filed its memorandum of appearance, statement of defence and accompanying processes to be relied upon at the hearing of this matter.
3. On 14 February 2020, the defendant filed its reply to the claimant’s amended statement of facts, list of additional document and defendant’s witness additional written statement on oath dated 19 February 2020.
4. The matter went to trial. The claimant testified on his own behalf as CW and tendered Exhibits CW1, CW2, CW3, CW4, CW5, CW6, CW7, CW8 on 14 October 2020; and tendered Exhibits CW9, CW10 and CW11 under cross- examination on 1 March 2022.
5. For the defendant, Nnaemeka Nebedum, Team Leader HR Department East and South with Defendant Bank testified as DW on 7 July 2022 and tendered Exhibits DW1, DW2, DW3, DW4, DW5, DW6 and DW7. Learned Counsel to the claimant objected to Exhibits DW4 and DW7. The Court directed learned Counsel to address the Court on his objection to Exhibit DW7 tendered by the defendant in final written address.
6. At the close of trial, parties filed their final written address. By order of Court extending the time, the defendant’s final address was filed on 6 September 2022. The claimant’s final written address was filed on 6 October 2022. The defendant did not file a reply on point of law.
THE CASE BEFORE THE COURT
7. To the claimant, he joined the defendant Bank on 3 June 2009 as Trainee to function as a Magnetic Ink Characters Recognition (MICR) Officer in Operation Department at the Regional Office Benin City; that in 2011, he was transferred to Asaba Delta State where he also functioned as a receiving and payment cashier in Operation department; that he equally functioned as a Fund Transfer officer and clearing officer. That he was promoted to Assistant Banking Executive in 2012; that he was forcefully redeployed from operation to marketing in 2014 without considering the fact that he was fully grounded in Operation; that he was not given any marketing training than the training given him while in operation; that he has an unrealistic target of ₦680M in small town like Asaba by the defendant.
8. That sometime in December 2014, he applied for a loan facility from the defendant which payment options will spread across 36 months; that the loan was to be serviced by claimant’s salary while working with the defendant; that the loan was approved and credited to the claimant’s account on 3 February 2015. That that same February 2015 while on leave, he was informed by the defendant that he was not meeting up the target of ₦680 million set for him by the defendant; that either he resign or he will be dismissed outrightly without benefit; that defendant did not allow the claimant to familiarize with the marketing environment or even given enough time to actualize his budget before terminating his appointment. That his appointment was terminated in March 2015, a few weeks after the loan was granted to him; that he was informed to stop work on return from his annual 26 working days leave which started in January and ended early March 2015; that the claimant upon resumption from leave continue (sic) to work for the defendant for another 17 days until he parted ways with the defendant on 18 March 2015, hence the claimant’s claim for gratuity and other entitlements/claims in this suit.
THE SUBMISSIONS OF THE DEFENDANT
9. To the defendant, the claimant was employed into the defendant’s company (sic) by virtue of an employment letter dated 30 June 2009 and he consequently assumed duties on 8 July 2009; that the claimant was thereafter posted to Operations Department in one of its Branches in Benin City, Edo State on 1 April 2012. That claimant was promoted from Executive Trainee to Executive Assistant otherwise called Assistant Banking Executive 1; that on 3 June 2013, the claimant was reassigned from Operations Unit to Marketing Unit, Asaba Branch as a Relationship Officer; that prior to the claimant’s reassignment, he was nominated to attend the Bank’s Compliance Training Programme for Marketers on 10 November, 2012. That claimant was not new to Marketing as shown by his curriculum vitae submitted to the defendant at the time he was about to be employed by the defendant; that the claimant had previously operated or worked in Marketing Unit in his former Bank, i.e. UBA, between 2004-2006 prior to his joining Fidelity Bank Plc; that the targets assigned to the claimant during his roles in Marketing Unit is at par with his other colleagues on the same grade in similar job roles.
10. That by a loan application dated 12 December 2014, the claimant applied for a commercial loan facility from the defendant in the sum of ₦962, 000.00 to enable him complete his building project to repay same over a period of 36 months; that by virtue of a letter dated 12 December 2014, the claimant by a letter captioned “Debit Instruction” instructed the defendant to debit his Account no 5050025206 on quarterly basis until his ₦962, 000.00 loan is fully paid; that by a letter dated 15 December 2014, the claimant’s application for a loan facility in the sum of ₦962, 000.00 was accordingly approved by the defendant on terms and conditions stipulated in defendant’s letter dated 26 January 2015 fully accepted unconditionally by the claimant vide a letter dated 27 January 2015.
11. The defendant went on that by a letter dated 29 January 2015, the claimant requested that his gratuity be placed on lien to the tune of his loan amount (₦962, 000) till the time the said loan is fully liquidated; that by a letter dated 5 March 2015, the claimant voluntarily tendered his resignation letter to the defendant. That the defendant is not indebted to the claimant for any gratuity; rather it’s (sic) the claimant that is indebted to the defendant to the tune of ₦2, 143, 339.39, and same is still unliquidated as at 2 January 2019. That the defendant never eased the claimant out of employment, rather it was the claimant that voluntarily applied for his resignation.
12. That the defendant claims the sum of ₦10 million as general damages against the claimant; 15% post judgment interest monthly on the sum of ₦2, 143, 339.39 which is claimant’s unliquidated outstanding indebtedness to the defendant as at 2 January 2019 covering a period of 1 January 2010 to 29 March 2019 which sum the defendant claims against the claimant.
13. The defendant submitted two issues for determination, namely:
1. Whether the defendant is entitled to judgment upon admission in respect of the claimant’s pleadings/statement of facts.
2. Whether the claimant suit discloses any reasonable cause of action against the defendant i.e. Fidelity Bank Plc.
14. On issue (1), the defendant answered in the affirmative. That Order 20 (4) of the High Court (Civil Procedure) Rules 2019 states that the Judge may on application at a pretrial conference or at any other stage of the proceedings where admissions of facts have been made, either on the pleadings or otherwise, make such order or give such judgment as upon such admissions a party may be entitled to judgment without waiting for the determination of any other question between the parties.” Whereas section 20 of the Evidence Act 2011 defines “Admission” as a statement, oral or documentary or conduct which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and in the circumstances mentioned in this Act. That Exhibits CW6, CW9, CW10, CW11 and DW1, DW2, DW3, DW4, DW5, DW6 and DW7 respectively copiously depict abundant admissions by the claimant in his pleadings that the claimant willfully, deliberately and voluntarily resigned his appointment on 5 March 2015 and he is also indebted to the defendant Bank to the tune of ₦2, 143, 339.39.
15. The defendant continued that in the case of Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283 pp. 294 Para 18 and 19, the Supreme Court held as follows:
“Where the defendant has himself admitted that the terms and conditions of the agreement between him and the plaintiff, which is the subject of the dispute before the Court have been reduced into writing, by the provision of section 131(1) of the Evidence Act, such a defendant cannot be heard to say that besides those written terms and conditions, there is other evidence of the term of the agreement. It is only the written conditions and terms of such agreement that are of the agreement’s terms and conditions. In the instant case, it is only written terms and conditions of the loan agreement between the plaintiff and the defendant that are evidence of the loans’ terms and conditions and the difference cannot be heard to say that besides those, there is other evidence of the terms of the loan agreement.”
That the implication of the decision of the Supreme Court is that once there are written documents relating to loan advance between the plaintiff and the defendant, that the Court like in the present circumstances should limit itself within the ambit of the agreement or contractual documents between the claimant and the defendant. See Exhibit DW1, DW2, DW3, DW4, DW5, DW6 and DW7 respectively all pungently show that the claimant applied for and collected a loan facility in the sum of ₦962, 000 from the defendant for the purpose of completing his building project; that whereas Exhibit DW6 expressly, certainly and categorically stated the willful and voluntary intention of the claimant to resign from the employment of the DW1 (sic) – Fidelity Bank Plc on 5 March 2015.
16. The defendant went on that it is crystal clear that the claimant has made an overwhelming and a profuse admissions (sic) that should entitle the defendant to judgment in this case. See National Bank Ltd v. Guthriel Nig Ltd (1987) 2 NWLR (Pt. 56) 255 pp.257 Para 5. That in this case the Court of Appeal inter-alia held as follows:
“It is the intendment of Order 28 Rule 6 of the High Court of Lagos (Civil Procedure) Rules that where there is a clear, unambiguous and categorical admission by a defendant whether on the pleadings, or by letter or upon a notice to admit, the plaintiff is entitled to a decision in his favour; on the admitted facts.”
17. That moreover, as regards to the willful and voluntary resignation of the claimant, the Supreme Court held in the case of National Bank Ltd v. Guthriel Nigeria Ltd (1993) 3 NWLR (pt. 284) 643 pp. 646, paras 1& 2 as follows:
For Order 28 Rule 6 of High Court of Lagos State (Civil Procedure) Rules 1972 to apply when an application is brought for judgment or order upon an admission, there must be:
a) A specific admission in the pleadings or otherwise by a party or parties to a case.
b) Even where the admission exists or is proved, the trial Judge has discretion to give judgment or grant an order as may appear just to him.”
See Garuba v. Kwara Investment Company Limited & 2 ors (2005) 5 NWLR (Pt. 917) 160, pp. 165. Para 5 SC in which the Supreme Court held that “Ordinarily, a master is entitled to dismiss his servant from employment for good or bad reasons or for no reason at all. The common law recognizes and respects the sanctity of the contract. The Latin Maxim Pacta Sunt Servanda is preservation of contracts which is entitled to the greatest respect. Hence where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed.” See also Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512.
18. In view of the foregoing and in view of plethora and preponderance of the documentary evidence tendered in this case, the defendant urged the Court to hold that the defendant did not dismiss the plaintiff from the employment of the defendant but rather the defendant Bank merely confirmed, ratified and accepted the willful and voluntary resignation of the claimant from the employment of the defendant.
19. Regarding issue (2), whether the claimant’s suit discloses any reasonable cause of action against the defendant, the defendant emphatically answered NO. That the claimant’s pleadings and supporting exhibits have not disclosed any reasonable cause of action against the defendant Bank. See Ibrahim v. Obim (1988) NWLR at 1994. See also Rinco Construction Co. Ltd v. Veepee Industries Ltd (2005) 9 NWLR (Pt. 929) 85 in which the Supreme Court held that: “for a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligation of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation.”
20. That it is pertinent to note that in determining whether or not there is indeed a reasonable cause of action, the law is well settled that it is the originating process, the writ of summons, the statement of claim (where one is filed) or the originating summons (or motion as the case maybe) that should critically, albeit dispassionately examined to ascertain whether or not there is indeed a reasonable cause of action. See Obono v. Fambo (2005) All FWLA (Pt. 271) 25 at 34 para D-E, Society Blc SA v. C.I. Ltd 2014 All FWLR (Pt. 739) 1212 at 1233. That as can be seen and distilled from the definition, the proposition resolved into two critical factors thus “the defendant’s wrongful act and the consequential damage to the plaintiff” the two factors must co-exist to constitute a course of action before the Court; that the facts and circumstances have to be pleaded in the statement of claim. This was decided in Ibrahim v. Osim (1987) 4 NWLR (Pt. 67) 965.
21. To the defendant, the question that begs to be answered is, how has the defendant committed a wrongful act against the claimant? That the exhibits tendered in this case by the defendant are clear especially in Exhibits CW1, CW2, CW3, CW4, CW5, CW6 and CW7 respectively all corroborate that the claimant received the sum of ₦962, 000 from the defendant for the purpose of completing his building project and that the claimant also willfully and voluntarily resigned his job appointment with the defendant Bank. That the claimant have (sic) failed woefully to disclose a reasonable cause of action against the defendant Bank. That it has been decided that where no reasonable cause of action is disclosed, the Court shall struck out or dismiss the action; and the defendant urged the Court to so hold in the instant suit. See Bebeji Allied Prod. Ltd v. Pancosta Ltd (2007) vol. 31 WRN 163 at 198, line 20-35 (CA). See also Duru v. Nwangwu (2006) All FWLR (Pt. 324) 1830.
22. On the issue of interest as stated in paragraphs 27 and 28 of the defendant’s written deposition dated 21 May 2019, the defendant urged the Court to award the defendant a pre-interest rate of 10% per month on the defendant’s claim of the sum of ₦2, 143, 339.39. See National Bank Ltd v. Savol West Africa Ltd (1994) 4 NWLR (Pt. 333) 435 pp 443 para 22 SC in which the Supreme Court held as follows:
“In awarding interest, the overriding principle is that interest should be awarded to the plaintiff, not as compensation for damages done but for being kept out of money which ought to have been paid to him.”
That in the case of Alhaji Fatai Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 11 NWLR (Pt. 1211) 242, pp 246, para 5, the Court held that: “A person cannot benefit from his own wrong. In its adjudication functions, the Court has a duty to prevent injustice in any given circumstances and avoid rendering a decision which enables a party escape his obligation under a contract by his own wrongful act or otherwise profit by his own wrongful act.”
23. In conclusion, the defendant submitted that in view of the foregoing, the Court is urged to hold that the claimant willfully and voluntary (sic) resigned his appointment with the defendant as per his letter of 5 March 2015; and to grant judgment to the defendant in the sum of ₦2, 143, 333.39 and a pre-interest rate of 10% per month on the defendant’s claim of the sum of ₦2, 143, 339.39 and post interest rate of 15% on ₦2, 143, 339.39 and the cost of ₦10 million as general damages against the claimant.
THE SUBMIISSIONS OF THE CLAIMANT
24. The claimant submitted two issues for determination, namely:
1. Whether the claimant has placed before this Honourable Court sufficient material establishing his case by preponderance of evidence/balance of probabilities
2. Whether the defendant is not liable in breach of contractual agreement with the claimant by ceasing (sic) his gratuity funds without first crediting same to the claimant’s account in line with the spirit of the contract.
25. On issue (1), the claimant submitted that he has placed before this Court sufficient and credible material enough to tip the scale of justice on his own side when weighed through preponderance of evidence or balance of probabilities. That it is now settled law that the burden of proving a particular fact is on the party who asserts it, which onus does not remain static in civil cases but shifts between adverse parties from one side to the other as the occasion warrants and the onus of adducing further evidence is not adduced. See Section 135 to 137 of the Evidence Act now Section 131 to 133 of the 2011 Evidence Act; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Agu v. Nnaji (2003) FWLR (Pt. 139) 1537; Onwuama v. Ezeokoli (2002) 5 NWLR (Pt. 760) 353; Oyorbare v. Omamurhomu (2001) FWLR (Pt. 68) 1129; Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539. That by section 134 of the Evidence Act, the burden of proof shall be discharged on the balance of probabilities in all civil proceedings; that the law is that the burden of proof is on the party who would lose if no evidence were adduced; that generally, in civil proceedings the burden of proof though said not to be static, it is on the vulnerable party to lead credible evidence in proof to the contrary. See Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410, Onwuama v. Ezeokoli (supra), Ike v. Ugboaja (supra). See also Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Ojomo v. Den (1987) 4 NWLR (Pt. 64) 216; Abiodun v. Adehin (1962) 2 SCNLR 305; Reynolds Construction Co Ltd v. Okwejiminor (2001) 15 NWLR (Pt. 735) 87.
26. Before proceeding further in his arguments, the claimant posited that it will be important to quickly comment on the issues raised by the defendants in its issues for determination. Firstly, the claimant submitted that the defendant, going by its distilled issues for determination did not appreciate the facts in issue in such a manner as to understand the gravamen of the claimant’s case and possibly apply the proper soothing balms to them; that for pain of repetition, the claimant was given a loan of ₦962, 000- in February 2015, that the duration of the said loan is 36 months and the mode of payment is deduction from the claimant’s salary; that the claimant guarantee for the said loan was his gratuity; that however, the same month the loan was disbursed to the claimant, he was forced to resign from his job because he was unable to meet up with the target of ₦680 million given to him by his employers.
27. That the defendant tendered Exhibit DW6 titled: Re: Resignation of appointment to justify their claim that the claimant voluntarily resigned from its establishment; that there is no gainsaying that some work environment, most especially banks in Nigeria are toxic and hostile thereby breeding discomfort and unease for employees to effectively carry out their work and accordingly earn a successful career. That such work hostilities comes (sic) in the form of intimidation, unfair treatment, harassment, work bullying and intolerable actions by the employer; that worse situations arises (sic) where the hostility is exhibited by executive or senior officers of the organization towards subordinates either to arm-twist such subordinates to agreeing to unfavourable terms, circumstance, advances or to force the employee to resign; that an employee facing such hostility may eventually resign while some might for the uncertainty of what comes after resignation, choose to endure in anguish. That such hostilities meted out to an employee can be broadly regarded as unfair labour practice and where it culminates in resignation or circumstances that are set out to force the employee to resign, such resignation has been regarded as constructive dismissal which is in itself an unfair labour practice.
28. It is the claimant’s submission that the defendant has not formally liquidated the loan of ₦962, 000 advanced to the claimant even when the security used as a collateral for the said loan was sufficient enough to do so; that Exhibit CW4 is the payment amortization schedule on how the said loan will be liquidated in 36 months; that the schedule was self explanatory that both the capital loan and accruable interest stood at ₦1, 183, 639.67k; that it is to be noted that the claimant’s gratuity which serves as collateral for the said load stood at ₦1, 247, 656.00k the balance ₦64, 016.33 should be left and credited into the account of the claimant; that there is no evidence the defendant has credited or debited any such money on the account of claimant in accordance with Exhibit DW2, CW4 and DW5. That these are reasonable cause of action as against the submission of the learned defence counsel that the claimant’s case has no reasonable cause of action. The claimant then urged the Court to dismiss such issue with a sentence and proceed to evaluate the disputes and apply justice in a deserving circumstance of this case.
29. The claimant further submitted that Exhibits DW4 and DW7 did not support the claims of the defendant that the claimant is indebted to them (sic) at the tune of ₦190, 746. 49k post dismissal; that looking at the said exhibits, the defendant did not demonstrate in clear terms when and how the said unearned emoluments were paid to the claimant was it 2009-2015? That where was the said unearned emoluments paid to? That was it paid into the account of the claimant? That which dates and months of the year was it paid? That there was no evidence to that claim thus leaving the Court to embark into (sic) the voyage of discoveries like lander brothers or mungo park who claimant was told discover (sic) the River Niger, a Court of law are (sic) not allowed to go into such voyage of discoveries thus in Abubakar v. Yar’Adua (2009) All FWLR (Pt. 457) 1, where the Supreme Court held:
“A Court of law can only pronounce judgment in the light of evidence presented and proved before it. A Court of law cannot go outside the evidence presented and proved before it by embarking on a voyage of discovery in search of other evidence in favour of the parties…”
30. To the claimant, Exhibits DW4 and DW7 are of no probative value; that the defendant did not tie the contents of Exhibits DW4 and DW7 to its claims of unearned salaries leading to the claimant owing the balance of ₦190, 746.49k. That the document was just dumped on the Court without any witness speaking to the document; that in the circumstance, the learned trial Court and indeed any Court shall not accord it any probative value. See Okereke v. Umahi & ors (2016) LPELR-40035 (SC). That it is not the duty of a Court or Tribunal to act within the realm of conjuncture (sic) in determining what a document so tendered relates to, or for what purpose it was meant to serve by tendering it, or to proceed to embark on making inquiry into the case outside the Court not even by examining of such documents which are in evidence but not examined in open Court. That a judge is an adjudicator and not an investigator. See Queen v. Wilcox (1961) 1 SCNLR 296; (1961) 1 All NLR 633; Dennis Ivienagor v. Henry Osala Bazuaye (1999) 6 SCNJ 235 at 243, Fawehinmi v. Akinlaja (2010) LPELR-8963.
31. The claimant went on that there is no evidence that the said Exhibit DW7 was served on the defendant (sic) by any means whatsoever; that the claimant has maintained that such document was not served on him and the position of the claimant was not challenged or discredited by the defendant in any material particular; that there is no evidence that the said Exhibit DW7 was sent to the claimant by courier or by mail as alleged by the defendant. The claimant then urged the Court to expunge Exhibits DW4 and DW7 from the records and hold that the claimant has established his claims by preponderance of evidence and balance of probabilities and enter judgment in his favour.
32. It is claimant’s further submission that he was not paid one month in lieu of notices, neither was he paid extra days he worked in the services of the defendant; that it is established facts that the claimant is paid 2 times in a month, the 1st or 2nd day of each month and the 22nd or 23rd of each month which payment is called performance benefit which is ₦53, 005. 77k first or second day of the month and ₦32, 776.97k which is called salary and paid on 22nd or 23rd of every month; that the total due for the claimant was ₦85, 782.74k. It is further submitted that the last payment to the claimant from defendant was on 23 February 2015; that he continued working for the defendant from 24 February 2015 and left on 18 March 2015 (23 days). That divide his salary of ₦85, 783.74k by 30 days each day stands at ₦2, 859.42k per day; that for 23 days, the unpaid salary is ₦65, 776.60k plus ₦810, 000.00 due to his (sic) for clothes, education, entertainment, lunch, incentives and reimbursables. See Exhibit CW5.
33. Regarding issue (2), the claimant submitted that the defendant honoured the agreement he entered with the claimant in breach; that this is so because when this loan was about to be disbursed, both parties willingly entered it without coercion or misrepresentation; that the claimant on his own side requested specifically from the defendant to debit his account. See Exhibit DW2. That there is nothing to show that the defendant kept to the letters of the said agreement; that the defendant has not credited the account of the claimant with his gratuity entitlement neither has the defendant debited the said account to offset the said loan in line with the letters and spirits (sic) of the agreement. That this amounts to a breach of contract on the defendant’s side. See Edun v. FRN (2019) 13 NWLR (Pt. 1689) 326 (pp. 351-352. paras G-B). See also Daar Communications Plc v. Mckee (2022) LPELR-57848 (CA); Nationele Computer Services Ltd v. Oyo State Government & ors (2019) SLCN/13569 (CA). That the consequence of a breach of contract is award of damage; that damages for breach of contract are compensation to the plaintiff for the damage, loss or injury suffered through that damage.
34. That merging of the loan contract with any other contract is an aberration, tasteless and unknown to any law of contract; that there was no mutual agreement between the claimant that such contract will be merged within his end of service contractual liabilities; that the loan contract is a distinct contract independent of any other contract between the claimant and the defendant; that merging it with the claimant’s loan contract is therefore invalid and of no effect. The claimant urged the Court to so hold.
35. In conclusion, it is the submission of the claimant that he has placed before this Court with sufficient materials that will convince the Court in evaluating the totality of evidence placed before the Court. See Abisi v. Ekwealor (1993) NWLR (Pt. 302) 643. The claimant then prayed the Court to grant all the reliefs sough and to discountenance the submissions and claims of the defence (sic) as lacking merit.
36. Like I pointed out earlier, the defendant did not file any reply on point of law.
COURT’S DECISION
37. I carefully considered the processes and submissions of the parties in this suit. I must start off with a couple of preliminary things. Under cross examination on 12 February 2022, the defendant’s witness (DW) stated that he joined the defendant Bank on May 20, 2015; that as at that time of transactions between the claimant and the defendant Bank in this suit, he was not yet a staff of the defendant bank. The import of all of this is that the deposition(s) of DW and his entire evidence before the Court in this case is entirely hearsay evidence. Section 37 of the Evidence Act 2011 defines hearsay evidence as follows:
Hearsay means a statement:
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
38. On what constitutes hearsay evidence, the Court of Appeal held in Obiamulu v. Ogwuego (2020) LPELR – 51949 (CA) per Umar, JCA thus:
“On what constitutes hearsay evidence, the Supreme Court in the case of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 at 198 para H. It held thus: “Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part on the veracity and competence of some other person”. Per Tobi, JSC.”
And as to what amounts to hearsay evidence, Okonkwo v. Vanguard Media Limited (2022) LPELR – 57246 (CA) stated the law per Oyewole, JCA thus: “In Subramaniam v. Public Prosecutor (1956) 1 WLR 965 at 969 the concept of hearsay evidence was elucidated in the following words:
Evidence of a statement made to a person called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made”.
39. In paragraph 5 of defendant’s witness additional written statement on oath, DW stated that: “The Hon. John Onyeakpa Esq of Counsel, the lead counsel of the defendant, informed me and showed me the claimant’s further statement on oath dated 28th day of October 2019; that paragraph 12 and 13 of the claimant’s additional written statement on oath dated 28th day of October 2019 are false to the extent that by a loan application dated the 12th day of December, 2014, the claimant applied for a commercial loan facility (paragraph 7); that paragraph 18 of the claimant’s further amended written statement on oath is false as the claimant’s appointment was not terminated but rather the claimant resigned voluntarily his appointment on 5th day of March 2015 and had an outstanding gratuity of ₦1,247,565 (paragraph 10 of DW’s additional written statement on oath). All of this and much more in the DW’s deposition coming from learned counsel to the defendant who himself was never in a position to establish by the evidence that the statement was in fact made is hearsay evidence. See Okonkwo v. Vanguard Media Ltd (supra), Mkpedem & ors v. UBA Plc & anor (2016) LPELR – 42039 (CA). and by Federal Republic of Nigeria v. Mohammed Usman & anor (2012) LPELR – 7818 (SC) “If on the other hand his testimony is to establish the truth of an event in question or as in this case to establish the truth of the contents of the appellants statements, it is hearsay and inadmissible evidence…” per-Rhodes-Virour, JSC (pp-19-20, para. F-C). The law is trite that the Court cannot rely on hearsay evidence to grant reliefs of a party. It is not admissible. See GLO v. Fatmax Global Ventures Ltd (2020) LPELR – 50500 (CA). DW’s testimony in the entirety of his deposition in this suit, in my humble view, is second hand evidence and is thus inadmissible to prove the facts of defendant’s case. I so hold.
40. The defendant called to question the admissibility of Exhibit CW3 date 27 June 2016 and 4/7/2016 and titled: “Non Payment of Gratuity”. To the defendant the documents were electronically generated and do not conform with Section 84 (4) of the Evidence Act 2011. That there was no certificate of compliance by the claimant showing the due authentication of the said computer generated documents which the claimant intended to tender and rely upon at the trail; that since the exhibits have not complied with Section 84(4) of the Evidence Act 2011, this Court should discountenance the said documents.
41. I went through the claimant’s final written address like looking for a needle in a haystack but could not find any response to the defendant’s contention with Exhibit CW3. Exhibit CW3 is claimant’s e-mail to one Napoleon on non payment of gratuity; and to Ifeanyi, Ruth requesting the stoppage of posting debit interest into account number 5050025206. By Access Bank Plc v. Mr. Godwin Etim (2021) LPELR-55913 (CA) “…the gist of Section 84 of the Evidence Act, 2011 is that it renders admissible, a statement contained in a document produced by a computer” per Oniyangi, JCA (P.26, paras. E-F). Section 84(4) of the Evidence Act, 2011 states that:
In any proceedings where it is desired to give a statement in evidence by virtue of this section a certificate-
a) identifying the document containing the statement and describing the manner in which it was produced;
b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer:
i. dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and
ii. purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and
iii. for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating.
42. As I stated ealier, the argument of the defendant is that the claimant did not provide any certificate as enjoined by section 84 of the Evidence Act 2011. The claimant was silent on the issue. As a policy, minded by section 12 of the National Industrial Court Act 2006, this Court relaxes the evidential requirement of section 84 of the Evidence Act 2011 when computer generated documents are in issue; admitting such a document but reserving the probative value for consideration in terms of the merit of the case. See Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4 June 2018. See also Mr. Dandson O. Obi v. Access Bank Plc unreported Suit No. NICN/LA/406/2013 the judgment of which was delivered on July 16, 2018. On whether a computer generated document tendered by a party whose computer did not produce the document is admissible without need for certification as required by section 84 (4) of the Evidence Act, 2011, the Court of Appeal held in Stanbic IBTC Bank v. Longterm Global Capital Ltd & ors (2021) LPELR- 55610 (CA) per Obande Festus Ogbuinya, JCA (pp 78-83 Paras F-B) thus:
“… In Shathi Mohammed v. The State of Himachal Pradesh (JJ2018) (2) SC 49), the Indian Supreme Court was confronted with the interpretation of the provision of section 65 B (4) the Indian Evidence Act which is in pari materia with our section 84 (4) of the Evidence Act 2011 on the certificate requirement in electronic evidence. The Supreme Court held: Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such a party cannot be required to produce certificate under section 65 B (4) of the Evidence Act… It certainly, cannot be the intention of the legislature that section 84 of the Evidence Act 2011 should strip a party, who is not the owner/maker of computer-generated document, of his right to present electronic evidence, meant for the prosecution or defence of his case in a Court of law. In effect, the lower Court was firma terra in law when it admitted the first respondent’s Credit Status Report (CSR) as an exhibit- Exhibit L2. I too, welcome the document to the appeal. I deck it with the deserved cap of admissibility.”
43. Flowing from the authority of Stanbic IBTC Bank v. Longterm Global Capital Ltd & ors (supra), I am obliged to welcome Exhibit CW3 dated 27 June 2016 and 4 July 2016 to this case even as I discountence the argument of the defendant.
44. The claimant raised objection to the admissibility of Exhibit DW7 dated March 19, 2015 titled: “Re-Resignation of Appointment” on grounds that there is no evidence that it was served on the defendant (sic) by any means whatsoever; that such document was not served on him and the position of the claimant was not challenged or discredited by the defendant in any material particular. That there is no evidence that the said Exhibit DW7 was sent to the claimant by Courier or by mail as alleged by the defendant. See paragraph 2.19 of claimant’s final written address. The claimant therefore urged the Court to expunge Exhibit DW4 and DW7. Exhibit DW4 is Customer Service Information narrating the entirety of claimant’s transaction with defendant’s Bank from January 4, 2010 to 2 January 2019. To the claimant Exhibits DW4 and DW7 are of no probative value; that the defendant did not tie the contents of Exhibits DW4 and DW7 to its claims of unearned salaries leading to the claimant owing the balance of N190, 746.49k; that the document was just dumped on the Court without any witness speaking to the document; that in the circumstance, the Court should not accord any probative value. See Okereke v. Umahi (supra). See paragraph 2.14 of claimant’s final written address.
45. I looked at the exhibits tendered by the claimant and the defendant. I observed that Exhibit CW10 dated March 19, 2015 titled- “Re: Resignation of Appointment” is, in every material particular, the same with Exhibit DW7 dated March 19, 2015 and titled- “Re: Resignation of Appointment”; and both exhibits are addressed to the claimant by defendant’s Human Resources Admins. So, if Exhibit DW7 was not served on the claimant (who erroneously referred to himself in paragraph 2.19 of claimant’s final written address as “defendant”), then how did the claimant come by Exhibit CW10? The claimant would then proceed to juxtapose admissibility of documents with the probative value of the same documents. On the issue of admissibility of Exhibits DW4 and DW7, I do not see any iota of merit in claimant’s arguments whatsoever. Same is accordingly discountenced. Exhibits DW4 and DW7 are admissible and will be accorded their appropriate probative value. I so hold.
46. Given the declaratory reliefs claimed by the claimant, the issues before the Court are: whether the claimant is entitled to his gratuity having been eased out of his employment by the defendant either by way of credit or debit in his own account evidencing payment of gratuity to the claimant; and whether the continuous debit of the claimant’s current account by the defendant without paying his gratuity is null and void and of no effect; whether the court can make an order mandating the defendant to write off all the accumulated debit interest posted in the claimant’s account from the date of his termination of employment till the day judgment is given. Even where the claimant is entitled to the specific sums claimed as per reliefs (4), (5), (6), (7), (8) and (9) as well as (10) and (11), there is the issue whether these claims are claims for special damages, which have been proved according to law.
47. The instrument by which the claimant in the instant case is said by the defendant to have resigned is Exhibit CW9. The argument of the claimant however, is that his appointment was terminated in March 2015, few weeks after the loan was granted to him; that he was informed to stop work if he return (sic) from his annual 26 working days leave which started in January and ended early March 2015; that the claimant upon resumption from continue (sic) to work for the defendant for another 17 days until he parted ways with the defendant on the 18 March 2015; that the 17 days pay due to the claimant was withheld by the defendant. The oral testimony of CW under cross examination is that he joined the defendant on 3 June 2009; that he served the defendant for five years and he was forcefully asked to resign his appointment for not meeting the marketing target of N680 million. That he denied the suggestion of defence Counsel that he voluntarily resigned after five years; that there was no letter to him from the defendant; that there was a phone call from Human Resources advising him to resign; that what is obtainable in Banking industry these days is that they do not write formally for forceful resignation because they know that once it is circulated, it will be documented and it becomes an indictment on the bank; that they only write you formally if you have committed fraud and they send a copy even to the Central Bank of Nigeria; that not so for forceful resignation for not meeting targets set by them. That you do not even get your terminal benefits when you don’t resign as ordered by them. The defendant denies these state of facts and argues that the claimant willfully and voluntarily resigned his appointment with the defendant, and was never terminated and the claimant is put to the strictest proof thereof. To decide where the truth lies in all of this, I will need to look more closely at the evidence, both documentary and oral. I start with the oral testimony. The facts regarding all of this is pleaded in paragraphs 5, 6, 7, 11, 12, 13, 14, 21, 22 and the supporting depositions are to be found in paragraphs 6, 7, 8, 12, 13, 14, 15, 22, 23 of CW’s deposition of 28 October 2019.
48. The defendant’s denial of this is in paragraphs 3, 4, 5 and 7 of its statement of defence as well as the supporting depositions in paragraphs 7 and 8 of DW’s deposition of 14 February 2020. The defendant’s denial was given by Mr Nnaemeka Nnebedum (DW) who works for the defendant as Team Leader, Human Resources Business Partner East/South. In paragraph 3 of the amended statement of defence, the defendant denied paragraph 11 of the claimant’s amended statement of facts and specifically pleaded that the claimant as a staff on leave doesn’t (sic) have access to official emails and hence the ex-staff or the claimant couldn’t (sic) have been notified as claimed. In paragraph 4 of the amended statement of defence, the defendant denied paragraph 13 of the claimant’s amended statement of facts and pleaded that the claimant willfully and voluntarily resigned his appointment with the defendant; and was never terminated. In paragraphs 7 and 8 of his deposition, DW stated that by a loan application dated 12 December 2014, the claimant applied for a commercial loan facility to the defendant in the sum of ₦962, 000.00 to enable him complete his building project to repay same over a period of 36 months; that the claimant voluntarily and willfully resigned his appointment with claimant (sic) via a letter of resignation of appointment dated 5 March 2015. Nothing more was said by DW in response to claimant’s deposition in this suit.
49. Now the law is that a matter can be proved by either oral or documentary (or both) evidence though documentary evidence is preferable. See Vincent U. Eghanevba v. Dr. Orobor Osagie (2009) LPELR-1044 (SC). The burden of proof lies on the person asserting; in the instant case, on the claimant. Once a fact is proved, the burden then shifts to the defendant to show otherwise. The claimant’s evidence is that he was forcefully redeployed from operation to marketing in 2014 without considering the fact that he was fully grounded in operation; that he was not given any marketing training; that he was given an unrealistic target of ₦680 million in a small town like Asaba; that while on leave, he was informed by the defendant that he was not meeting up the target of ₦680 million; that the Team Head, Human Resources Department East and South called to inform him to stop work on resumption from his annual 26 working days leave. Incidentally the Team Head HR Department of the defendant who gave the verbal directive to the claimant to quit was not called as defence witness. DW in the instant suit came on board after claimant’s exit from the defendant Bank. I have already determined that DW’s deposition on oath and oral testimony is entirely hearsay evidence. Claimant’s pleadings of his forceful resignation vide Exhibit CW9 could only have been contradicted by the Team Head HR Department that is said to have given the order to claimant to resign. This Court has often lamented and cautioned employers for refusing to call as witness those who were actually involved in the facts leading to the dispute in issue.
50. No doubt, an employer reserves the right to call whoever it wants as a witness. However, an employer who simply calls anyone to testify stands the risk that if the claimant’s testimony is more believable, that defence witness who was not involved in the facts leading to the case but is called as a witness, would end up an unbelievable witness. This is exactly the scenario playing out in the instant case. The impression of the defendant about the claimant as stated in paragraphs 8 and 9 of its statement of defence dated 21 May 2019 is that the claimant was not new to marketing as shown by his curriculum vitae and claimant had previously operated or worked in marketing Unit in his former bank, UBA between 2004-2006 prior to his joining defendant Bank. I believe the testimony of the claimant that it was actually because of claimant’s inability to meet the marketing target of N680 million that the defendant through the then Head of HR Department advised claimant to resign. The evidence of CW is made qualitative and believable than that of DW who was not even a staff of the defendant when all of this transpired between the claimant and the defendant. I find and hold that the evidence of the claimant that he was asked by the named officer of the defendant to resign has not been controverted by the defendant given that the former Team Head of HR Department was not called as a witness to controvert the claimant’s evidence. The claimant’s evidence outweighs that of the defendant in this regard and I accordingly find and hold for the claimant in that regard.
51. The claimant did not leave anyone in doubt that he resigned involuntarily. In the form attached to Exhibit CW9 the claimant was asked in question 11 what organizational improvement claimant could suggest that would result in greater job satisfaction for all employees, the claimant suggested given (sic) consideration to relationship officers especially those that were redeployed from operation background to marketing and organizing credit training and relevant job functions for staff. This entry is pretty clear that the reason for leaving stems from management decision. I am satisfied and convinced with the evidence of the claimant that he was forced to resign because his redeployment from operation background to marketing did not yield the result expected of claimant by the defendant and I so find and hold. In any event, this Court, in Miss Ebere Ukoji v. Standard Alliance Life Assurance Co Ltd (2014) 47 NLLR (Pt. 154) 531 NIC and Mr. Patrick Obiora Modilim v United Bank for Africa Plc unreported suit No. NICN/LA/353/2012 the judgment of which was given on 19 June 2014, held that to attempt to have employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge and for which a case of constructive dismissal is made. I do not see any difference between the instant case and Miss Ukoji and Modilim. Accordingly, it is my finding and holding that the claimant was called by defendant’s Head HR Department and was asked to resign his appointment for not meeting up the target of N680 million set for him by the defendant. His resignation from the service of the defendant was, therefore involuntary. I so hold. Relief (1) is accordingly grantable; and I so grant.
52. In paragraph 21 of claimant’s amended statement of facts, he stated that having terminated claimant’s appointment in February 2015, he was expecting his gratuity with the defendant to be credited to his account and other severance packages due to him, but years after his termination of work, the defendant sat on both his severance packages and his gratuity. In reaction, the defendant pleaded in paragraph 7 of its reply to the claimant’s amended statement of facts that it was due to the claimant’s blantant refusal to accept the end of service statement sent to him that made it impossible for the defendant to act further on any indebtedness or entitlements due to claimant. The defendant went on to put the claimant to the strictest proof of the allegation thereof. I think the burden is on the defendant to prove by the terms and conditions of the service of defendant bank that the claimant must accept the end of service statement before he will be paid his severance packages and gratuity. Where that is not shown by the defendant, the claimant should be given what is due to him by the defendant. I so hold.
53. Relief (2) is hinged on the grant of relief (1). The continuous debit of the claimant’s current account by the defendant without paying his gratuity is wrong and contrary to the subsisting pension laws of Nigeria. I so hold.
54. The remainder of the reliefs claimed by the claimant are monetary claims. Relief (3) is for writing off all the accumulated debt interest posted in claimant’s account; relief (4) is for the claimant (sic) to credit the account of the claimant with the sum of N1,247,656.00; relief (5) is for defendant to liquidate the service loan facility of N963,000.00 and its cumulative interest of N221,639.67 granted and tied to claimant’s gratuity fund of N1,247,656.00; relief (6) is for the defendant to credit claimant’s account with N64,017.67 as his legitimate balance from his gratuity less the loan and its accumulative interest; relief (7) is for the defendant to pay the claimant N810,000 being his allowances for January and February 2015; relief (8) is for the defendant to pay the claimant N60,047.82 being wages for 21 days work; relief (9) is for N3 million as severance allowances and packages; relief (10) is for general damages while relief (11) is for 10 per cent interest per annum of the ₦1,247,565.00 from March 2015 till judgment is given and thereafter 7.5 percent interest per annum until it is liquidated by the defendant. I shall accordingly first consider the claim for reliefs (3) to (9); and there are two components to these claims i.e. the proof of entitlement to the claims, and the proof of the quantum of the sums claimed as entitlements. See NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC) and 7UP Bottling Company Plc v. Augustus (2012) LPELR-20873 (CA). In Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39, this Court held that the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if an entitlement is shown. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. This Court also cautioned that it may be fatal if, in proving an entitlement and even if the instrument is referred to, the employee does not indicate the clause, section, article or paragraph that grants the entitlement claimed given that the employee should not expect that it is the Court that will shop for the relevant article that substantiates the claim prayed for. This is the context within which the claimant can succeed in the present case.
55. For the claim on the writing off all the accumulated debit interest posted in claimant’s account from the date of his termination of employment, the claimant pleaded in paragraph 26 and 27 of his amended statement of facts that he started receiving debit alert on his account from defendant from April 2015; that the debit alert continued in his account and he wrote to the defendant requesting termination of debit interest in his account. The supporting deposition of the claimant is in paragraphs 27 and 28 of 28 October 2019. In reaction, the defendant argued that the alerts referred to were expected as repayment for the commercial loan availed the defendant of which that was the repayment option; that the Ifeanyi Monye mentioned by the claimant was never the Head of Human Resources of the defendant Bank and hence couldn’t (sic) have responded to such email directly but may have forwarded same to the responsible officer to do so. See paragraph 10 and 11 of defendant’s reply to the claimant’s amended statement of facts.
56. Exhibit DW5 dated 29 January 2015 titled: Request To Place Lien of N962, 000 On My Gratuity is claimant’s instruction to the defendant on the loan of N962, 000.00 advanced to the claimant by the defendant. It states thus:
Kindly use this as an instrument or an authority to place a lien of Nine Hundred and Sixty Two Thousand Naira only (₦962,000) on my gratuity till the expiration of the said loan.
My account No. 5050025206
Agafie Paul
Thanks
(Signed)
57. The point is that with Exhibit DW5 expressly instructing the defendant to place a lien on claimant’s gratuity till the expiration of claimant’s loan of ₦962, 000, it was absolutely wrong for the defendant to debit the claimant’s account as that was not instructed or permitted by the claimant. In Polaris Bank Ltd v. Yayamu Global Services Ltd & anor (2022) LPELR-57376 (CA), the Court of Appeal held per Adah, JCA that: “The law is settled and sacrosanct that for a bank to freeze, place a caution or any form of restraint on its customer’s account, there must be a Court order… See GTB v. Adedamola & ors (2019) LPELR-47310 (CA).” And by Kwajaffa & ors v. Bank of the North Ltd (1998) LPELR-6371 (CA) “… the bank has no right to transfer money be it assets or liabilities from one account to the other without prior notice and accent of the customer.” The law of contract requires that both parties to a contract must fulfill their contractual obligations. See Wema Bank Plc v. Osilaru (2008) 10 NWLR pg. 170. Hacking into a client or staff’s account on grounds of indebtedness or for whatever reason, particularly where express instructions have been issued and subsisting tantamounts to an illegality for which the customer or employee is entitled to damages. I am satisfied that the claimant has made out a case here in terms of relief (3). I so hold.
58. In relief (4), the claimant seeks an order of Court mandating the defendant to credit the account of the claimant with the sum of ₦1, 247,656.00. The claimant pleaded in paragraph 17 of his amended statement of facts that at the termination of his appointment, he has an outstanding gratuity of ₦1,247,656 as computed by the defendant in their statement of defence and his pleading is validated by paragraph 18 of his further written statement on oath dated 28 October 2019. In paragraph 6 of its reply to the claimant’s amended statement of facts, it admitted paragraph 17 of claimant’s statement of facts to the extent that prior to the voluntary resignation of the claimant on 5 March 2015, the claimant had an outstanding gratuity of, ₦1,247,650 only. While the law is trite that the claims for special damages by NNPC v. Clifco Nigeria Ltd. (2011) LPELR- 2022 (SC) and 7UP Bottling Company Plc v. Augustus (2012) LPELR-20873 (CA) must be strictly proved by credible and compelling evidence, I note that the Supreme Court decision in Hon. Chigozie Eze & ors v. Governor of Abia State & ors (2014) LPELR- 23276 (SC) acknowledged thus: “In the absence of the fact that no evidence was led to establish the sums due to the appellants as salaries and allowances no specific sum can be ordered by the Court.” So, although the actual sums of salaries and allowances were not proved, the Supreme Court was emphatic that “all Courts in the land are Courts of Law and Equity;” as such “Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of the Law. The Supreme Court then went on to order that “the 1st respondent pays immediately to all the appellants their salaries, all allowances for 23 months.” The point to note here is that despite that the actual sums of salaries and allowances were not proved, the Supreme Court still went on to order their payment, since an entitlement to them was shown. A corollary to the case of Eze v. Governor of Abia State & ors (supra) is that strict proof of special damages may be waived in circumstances where parties are ad idem like in the instant case. This being the case, and on the authority of Eze v. Governor of Abia State & ors (supra), the claimant’s relief (4) is granted as prayed. I so hold.
59. Relief (5) prays for an order of Court mandating the defendant to liquidate the service loan facility of ₦962, 000 granted and tied to the employment of the claimant from the claimant’s gratuity fund of ₦1,247, 656.00. In paragraphs 18 and 19 of his amended statement of facts, the claimant pleaded that by the loan payment schedule given to him, the 36 months cumulative interest on the loan is N221,636.67k and both loan of ₦962, 000 and interest thereon will amount to ₦1,183,639.67k. See Exhibit CW4. That when N1, 183,639.67 is taken from claimant’s gratuity of ₦1, 247,656, it will be to the credit of N64, 017.67. The claimant’s pleadings are complimented by paragraph 19 and 20 of claimant’s further written statement on oath. With regard to paragraph 18 and 19 of the claimant’s amended statement of facts, it is the contention of the defendant that it was due to the claimant’s blatant refusal to accept the End of Service Statement sent to him that made it impossible for the defendant to act further on any indebtedness or entitlements due to the claimant. The defendant got it all wrong as I stated ealier. The law is clearly established that he who asserts must prove. See Sec. 131(1) of the Evidence Act, 2011. The burden is therefore on the defendant to prove that claimant must accept the end of service statement sent to him by the defendant before it will perform its obligations. So, the defendant putting the claimant to the strict proof of the allegation is not tenable as the defendant did not cite mandatory rules for its staff. I looked at the End of Service Statement as at exit date. The said document was prepared, authorized and approved by the staff of the defendant. What I have seen from the claimant’s pleadings, the defendant’s pleading and the statement on oath of claimant tallies with the end of service statement attached to Exhibit DW7 dated 19 March 2015. It is my determination that Relief (5) succeeds and is accordingly granted as prayed. I so hold.
60. Relief (6) is for an order compelling the defendant to credit the account of the claimant with N64, 017.67 as his legitimate balance from the gratuity less the loan and its cumulative interest granted him. In paragraphs 18 and 19 of his pleadings, the claimant averred that by loan payment schedule given to the claimant, the 36 months cumulative interest on the loan is N221, 639.67k add both loan to ₦962, 000 and interest will amount to N1, 183, 639.67. See the loan amortization payment schedule – Exhibit CW4. That when the sum of N1,183,639.67k is taken away from the claimant’s gratuity of N1,247,656.00k it will be to the credit of N64, 017.67 which the claimant seeks in relief (6). Paragraph 19 and 20 of claimant’s further written deposition validated the claimant’s pleadings. Accordingly, I hold that the claimant is entitled to relief (6). I so grant.
61. Relief (7) is for an order of Court compelling the defendant to pay the claimant N810, 000.00 as being his allowances for January and February 2015 due to the claimant as ABE 1. To the claimant, going by the revised compensation package circular by the defendant when the claimant was newly promoted to ABE1, he is entitled to the following allowances:
a) Utility: January 36.873.28, February N36,873.28- total for 2 months ₦73,674.56k
b) Cloth: January ₦49, 116.38, February ₦49,116.38 total for 2 months ₦98,232.76k
c) Education: January ₦61,396.47, February ₦61,395.47K for 2 months-₦122,790.94k
d) Entertainment: January ₦49,116.38k, February ₦49, 116.38 for 2 months-₦98,232.76k
e) Lunch: January ₦73, 674.56, February ₦73, 674.56 for 2 months- ₦147,349.12k.
f) Incentive: January 110,497.41k, February ₦110,497.41k for 2 months-₦220,994.82k
g) Reimbursable: January ₦24,558.19k, February ₦24,558.19k for 2 months-₦49, 116.38k
The sum total of the above allowances is ₦810, 391.34k. The circular for conditions of service (Revised Compensation Package dated January 21, 2015 – Exhibit CW5. See also End of Service Statement attached to Exhibit DW7 particularly the column on Allowances and Entitlements. The claimant’s pleadings in paragraphs 23 and 24 on his allowances based on the defendant’s Revised Compensation Package circular (Exhibit CW5 and DW7) are validated by his depositions in paragraphs 24 and 25 of his further written statement on oath. Accordingly, I hold that the claimant is entitled to relief (7). I so grant.
62. Relief (8) is for an order compelling the defendant to pay the claimant the sum of ₦60, 047.82 being his wages for 21 days work in the defendant Bank (firm) before he parted ways with the defendant. It is the claimant’s contention that he was informed to stop work if he returned from his annual 26 working days leave which started in January and ended early March 2015; that the claimant upon resumption from leave continued to work for the defendant for another 17 days until he parted ways with the defendant on 18 March 2015; that the 17 days pay due to the claimant was withheld by the defendant. The claimant went on that the defendant used to pay him a staggered salary twice a month, the first being ₦53, 005.77 which is called Performance benefit which is paid 1st and 2nd day of each month and ₦32, 776.97k which is called salary which is paid every 23rd day of each month; that put together the figure will sum up to ₦85, 782.74k. That given that the claimant earns ₦85,782.74 per month, the claimant was last paid on 23 February 2015; that from 24 February 2015 to 17 March 2015 is 21 days; that by the above salary sum divided by 30 days in a month, the claimant is entitled to ₦2, 859.42 every day, the foregoing sum for 21 days is ₦60, 047.82k which was withheld by the defendant. See paragraphs 14, 15 and 16 of the claimant’s statement of facts (pleadings) which is validated by paragraphs 15, 16 and 17 of his further written statement on oath. I need to reiterate that the defendant’s pleadings are not backed up by evidence as DW’s testimony is hearsay evidence. Accordingly, I hold that the claimant is entitled to relief (8). I so grant.
63. Relief (9) is a claim of ₦3 million as severance allowances and packages. I searched through the pleadings of the claimant, and there is no pleading whatsoever regarding facts relating to this claim. On the authority of Shell BP Ltd v. Jacob Abedi & ors (1974) LPELR- 3044 (SC); (1974) AII NLR 1; (1974) 1 SC 16 and Leo O.C. Obijuru v. I.M. Ozims (1985) LPELR-217 (SC); (1985) NWLR (Pt. 6) 167, judgment cannot be granted in respect of this relief. Accordingly, both the entitlement to and the claim for the sum of ₦3 million as severance allowances and packages (relief 9) cannot be granted.
64. Relief (10) is for ₦10 million as general damages arising from the incessant debit of the claimant account by the defendant. I read through paragraphs 26, 27, 29 and 30 of the claimant’s amended statement of facts. The story told by the claimant in these paragraphs do not support the award of general damages as the claimant claims. Having awarded the claimant his other claims, it will amount to double compensation to award him any sum as general damages. Relief (10) accordingly cannot be granted. It fails and so is hereby dismissed.
65. Relief (11) is for 10 percent interest per annum of the ₦1, 247, 565.00k from March 2015 till judgment is given and thereafter 7.5 percent interest per annum until it is liquidated by the defendant.
66. Relief (11) is a claim for pre-judgment interest. The principle is that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by statute or contract/agreement between the parties or principle of equity such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. See A.G Ferrero & Co. Ltd v. Henkel Chemicals Nigeria Ltd (2011) LPELR-12 (SC); Polaris Bank Ltd v. Centre Point Travel Agency Ltd (2022) LPELR-57359 (CA) and Skymit Motors Ltd v. UBA Plc (2020) LPELR-52457 (SC). This Court does not grant pre-judgment interest. See Kurt Severinsen v. Emerging Markets Telecommunication Service Limited (2012) 27 NLLR 374 at 464 and Mrs Omolola Shafqat Ogungbuaro v. Access Bank Plc unreported Suit No. NICN/LA/289/2014, the judgment of which was delivered on 30 October 2018. Relief (11) accordingly fails and is hereby dismissed.
67. Relief (12) is for perpetual injunction restraining the defendant, its agents or privies from debiting the claimant’s account as a result of the said service loan which the claimant’s gratuity has been long liquidated. The grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by Court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement. See Goldmark Nigeria Ltd & ors v. Ibafon Company Limited & ors (2012) LPELR-9349 (SC) per Adekeye, JSC. By the grant of Reliefs (1) and (2) in this suit in favour of the claimant, it is my determination that relief 12 must be granted. I so grant.
68. I now turn to the defendant’s counterclaim. Counterclaim (1) is for the sum of ₦2, 143, 339.39 being the claimant’s outstanding indebtedness. The defendant pleaded in paragraph 25 of its statement of defence dated 21 May 2019 that as a financial institution it is entitled to charge interest on the claimant’s unliquidated outstanding indebtedness to the defendant in the sum of ₦2, 143, 339.39 as at 2 January 2010 which can vividly be seen in the claimant’s statement of account covering a period of 1 January 2010 to 29 March 2019. Mr Nnaemeka Nnebedum, defendant’s witness statement on oath purportedly validated the defendant’s pleadings in paragraph 25 of his evidence. I have already said that Mr Nnaemeka Nnebedum who was DW in this suit became a staff of the defendant after the claimant had parted ways with the defendant. The law, I reiterate that by Pastor Ize-Iyamu Osagie Andrew & anor v. INEC (2017) LPELR-48518 (SC), per Okoro, JSC, is that “…a Court or Tribunal has no business to entertain, consider or rely on the evidence of persons who did not have a first hand, direct, actual and positive interaction with the facts in issue, and in the unlikely event that the testimony of such person is received in evidence, the Court is under a bounden duty to expunge the testimony of such witness from its judgment…” See also Stemcon Ltd v. Essien (2019) LPELR-47475 (CA), Kholabe Consolidated (Nig) Ltd v. Dauda (2020) LPELR-49960 (CA). Counterclaim (1) accordingly fails for lack of proof and is accordingly dismissed. The counterclaims (2) for ₦10 million as general damages against the claimant, (3) 10% monthly interest on ₦2, 143, 339.39; (4) 15% post judgment interest all must fail. They fail and are respectively dismissed.
69. On the whole, and for the reasons given, the claimant’s case succeeds only in terms of the following declarations and orders:
1) It is hereby declared that the claimant is entitled to his gratuity having been eased out of his employment.
2) It is declared that the continuous debit of the claimant’s current account by the defendant without paying his gratuity is wrongful, null and void and of no effect.
3) It is hereby ordered that the defendant write off all the accumulated debit interest posted in the claimant’s account from the date of his termination of employment till the day of judgment is given.
4) It is hereby ordered that the defendant credit the account of the claimant with the sum ₦1, 247, 656.00.
5) It is hereby ordered that the defendant liquidate the service loan facility of ₦962, 000 granted and tied to the employment of the claimant from the claimant’s gratuity fund of ₦1, 247, 656.00.
6) It is hereby ordered that the defendant credit the account of the claimant with ₦64, 017.67k being his legitimate balance from his gratuity less the loan and its cumulative interest granted him.
7) It is hereby ordered that the defendant pay the claimant ₦810, 000.00 being his allowance for January and February 2015 due to him as ABE1.
8) It is hereby ordered that the defendant pay the claimant ₦60, 047.82 being his wages for 21 days work in the defendant firm before he parted ways with the defendant.
9) It is hereby ordered that the defendant, its agents or privies are restrained from debiting the claimant’s account as a result of the said service loan as the claimant’s gratuity has been long liquidated.
70. Judgment is entered accordingly. I make no order as to cost.
Hon Justice J.I. Targema, Ph.D.
