IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE (FCIArb) (UK)
Date: November 23, 2022 Suit No: NICN/PHC/41/2014
Between:
Godwin Lawrence Biragbara -------------------------------------- Claimant
And
Unity Bank Plc. --------------------------------------- Defendant
Representation:
S. K. Asuru and O. A. Amadi-Oparaeu for the Claimant.
O.S. Ebelogu and G.O. Elenwa for the Defendant.
COURT’S JUDGMENT
1.0. On February 13, 2014 the claimant sued the defendant by way of complaint and by the Amended Statement of Facts, the claimant is seeking for the following orders:-
i. A declaration that the defendant’s termination of the claimant’s employment by a letter dated 12th November, 2012 was wrongful, null and void and therefore of no effect.
ii. An order that the claimant is entitled to payment of:
a. His basic salary with entitlements thereto with Five Hundred and Seventy Two Thousand, Four Hundred and Eighty Two Naira Forty Kobo (572,482.40) per annum from 1st day of November until the date of judgment in this suit.
b. Leave and other allowances and fringe benefits as computable by the defendant’s rules and regulations relating to claimant’s last promotion.
iii. In the Alternative the sum of Ten Million (10,000,000.00) Naira as damages for breach of contract.
1.0.1. Other initiating processes were filed along with the complaint in line with the Rules of this Court.
2.0. In response, the defendant entered appearance through its counsel and filed its Statement of Defence with counter-claim wherein it is seeking for the following reliefs against the claimant:
i. A declaration that the termination of claimant’s appointment following his absence from duty without express approval/permission from his supervisor and unauthorized access to the defendant’s password assigned to the claimant, was lawful and legal, the class of offences being a fundamental breach punishable by summary dismissal without notice and pay in lieu of notice as it were in this case.
ii. An order directing the claimant to immediately pay the sum of Two Hundred and Fifty Thousand, Five Hundred and Twenty Seven Naira, Forty Four Kobo (sic) (N215, 527.44) only to the defendant being claimant’s indebtedness to the defendant as at 12th November, 2012 when claimant’s appointment was terminated.
iii. The sum of Five Million Naira (N5,000,000.00) only as cost for this needless litigation.
3.0. THE CLAIMANT’S CASE AS PLEADED
The case of the claimant in his pleading is that he was a former employee of the Defendant before his employment was wrongly determined. He continued that prior to the termination of his appointment with the defendant, he applied for a three (3) days casual leave to enable him attend to some family issues, which was approved by his supervisor. Upon his resumption of duty, he received an Internal Memo on “Absconding from Duty and Bank Access Password Compromised”. He stated that he responded to the said Memo but that the Defendant still terminated his employment and that this is not in line with the law and the terms and conditions of the Defendant’s Employee Handbook. Hence, he filed this suit with his reliefs before the Court.
4.0. THE CASE OF THE DEFENDANT AS PLEADED
The case of the Defendant on the other hand is that the Claimant was its employee and that his employment was confirmed as a junior staff; and so, he was bound by the Defendant’s Employee Handbook. The defendant went on that while the Claimant was in its employment, he absconded and/or absented himself from duty for (six days) without proper permission and/or approval from his supervisor and that he allowed an unauthorized access to a password duly assigned to him by the Defendant. As a result, the Claimant’s employment was terminated by the Defendant and that the termination of the Claimant’s employment is lawful.
4.0.1. During hearing of the case, the claimant testified as CW1 while Mr. Uchechi Nwawunze Opara testified on behalf of the defendant. The court subsequently directed counsel to the parties to file their respective Final Written Addresses in line with the Rules of this Court and they complied with the direction.
5.0. DEFENDANT’S FINAL WRITTEN ARGUMENTS
In the defendant’s Final Written Address at page 408 of the record, counsel raised the following issues for the determination of the Court:
i. Whether from the totality of evidence led before the Honourable Court, the Claimant has sufficiently proved by credible evidence that the termination of his appointment was a breach of the terms and conditions of his appointment with the Defendant to which he was bound and therefore unlawful.
ii. Whether the Defendant/Counter-Claimant has proved its Counter-claim through its witness and evidence led in Court and therefore entitled to the reliefs contained in its Counter-claim.
5.0.1. Arguing issue one, counsel referred the Court to Section 131 (1) Evidence Act, 2011; C.I.D Maduabum v. Ben Chuks Nwosu [2010] 13 NWLR (Pt. 1212) 639; Onwula v. Uche [2010] 2 NWLR (Pt. 1179) 582 at 583. Daudu v. UBA Plc. [2004] 9 NWLR (Pt. 878) 276 (CA): Akinfe v. Uba Plc. [2007] 10 NWLR (Pt. 1041) 185 and Nigerian Army Council & Anor. v. Erhabor [2018] LPELR-44958(CA). He submitted that it is trite law that a party who asserts has the legal duty to proof the correctness of his assertions. To counsel, the Claimant has failed woefully to discharge the onus on him to prove the particular terms and conditions of his appointment that was allegedly breached by the Defendant in his pleadings and evidence before the Court.
5.0.1.1. Counsel continued that the claimant’s contention that leave was purportedly granted him orally by his supervisor who later gave him query on the same issue and by also saying that it was the duty of his approving officer to disable his password; is a calculated attempt to deceive the Court by the claimant. To counsel, the Claimant knew that no such permission was granted him as he has no document to show the Court on it. He further submitted that the Claimant who testified as the CW1 admitted in ‘Exhibit C.10 that he absconded from duty and forgot to log out his password. Counsel again contended that this same CW1 knowingly and falsely testified in Court, particularly in paragraph 10 of his witness statement on oath made on March 2, 2020 that it was the duty of his approving officer to disable his password in his absence. Thus, he urged the Court not to ascribe any probative value to the evidence/testimony of CW1 before the Court.
5.0.1.2. To counsel, assuming without conceding that the Claimant was allegedly granted permission for three (3) days’ leave starting from July 18, 2012 as alleged, simple arithmetic computation would show that three (3) days from July 18, 2012 lapsed on July 20, 2012. However, the Claimant only resumed work on July 23, 2012; six (6) days after he left for the three days casual leave.
5.0.1.3. Referring to Exhibits C.9 and C.10, counsel submitted that claimant/CW1 having admitted under cross examination that he absconded from duty for a total of six (6) days from July 18, 2012 and returned on July 23, 2012 when he responded to the query through Exhibit C10; this does not need further proof because ‘facts admitted does not need further proof’, citing Ayoke v. Bello [1992] 10 NWLR (Pt. 218) P. 380 Ratio 2; O.A.A Co-operative Society v. N.A.C.P Ltd [1999] 2 NWLR (Pt. 590) P. 234 Ratio 4 and Section 12.8(a) of the Defendant’s Employee’s Handbook, (Exhibit C.7) before the Court.
5.0.1.4. In addition, counsel submitted that Exhibit C.8 tendered by the claimant evidencing that his leave was purportedly granted and therefore validated his absenteeism from duty, should be discountenanced and same should not be ascribed any probative value whatsoever on the ground that it did not emanate from the Defendant. Counsel maintained that ‘Exhibit C.8’ was neither signed by the Claimant’s immediate supervisor, Ugoh Chilaka Matthew nor any officers of the Defendant. Secondly, counsel contended that the said Exhibit C.8 is undated and unsigned. It is trite law that a document made by a person in whatever capacity ought to be signed by him or her in order to authenticate it, citing Anyaoha v. Abiola [2014] 6 NWLR (Pt. 1404) 445 and Omega Bank (Nigeria) Plc. v. OBC Ltd [2005] 8 NWLR (Pt. 928) 547 at 581.
5.0.1.5. In addition, counsel contended that the Claimant admitted under cross examination that the Defendant paid him his salaries and other emoluments up to the date his appointment was terminated. To counsel therefore, it is in evidence and proven that the Defendant was not in any way indebted to the Claimant when his appointment was terminated as the law is trite that ‘facts admitted does not need further proof, referring to Ayoke v. Bello (Supra) and O.A.A Co-operative Society v. N.A.C.P Ltd (Supra). He submitted that the Claimant has failed woefully to prove his case against the Defendant as alleged and he urged that same be dismissed with substantial cost against the claimant and in favour of the Defendant.
5.0.1.6. On the issue of General Damages for the purported breach of contract as alleged, counsel submitted that before any Court can award damages for breach of contract, it must be satisfied that there is a contract between the parties and that there is a breach of that contract by one of the parties. He asserted that the Claimant has failed woefully to proof his case against the Defendant, therefore he urged the Court to so hold and to dismiss his claim against the Defendant.
5.0.2.0. Arguing issue two on whether the Defendant is entitled to its Counter-claim, counsel maintained that the answer is in the affirmative as the Defendant has proved its counter-claim through its witness to wit; DW1, the CW1’s response under cross examination and the contents of Exhibits. In the circumstance, counsel maintained that the defendant is entitled to all the reliefs being sought for in the Counter-claim. He referred the Court to the cases of Lokpobiri v. Ogola & Ors [2015] LPELR-40838(SC), Per Olukayode Ariwoola, JSC, pages 64-65, paras E-A; Obala of Otanaiyegbaju & Ors. v. Adesina & Ors. [1999] LPELR-2149(SC) and Akpan v. Udoinwang & Ors. [2020] LPELR-51069(CA).
5.0.2.1. Counsel went on that the Claimant failed and/or refused to file his Reply to Statement of Defence and Defence to Counter-claim despite the fact that the Defendant filed an Amended Statement of Defence/Counter-claim/Set-off on the 26/3/2019 with the leave of the Court. He argued that by the singular act of the parties amending their pleadings, all the former pleadings were laid off or laid aside, so that the new set of amended pleadings take position of the original processes, citing Rotimi & Ors. v. Macgregor [1974] LPELR-2957(SC) and Shuaibu v. Muazu [2014] 8 NWLR (Pt. 409) 207. CA. Counsel further submitted that “where the evidence of a witness is cogent, credible and convincing, a trial Court is entitled to act on it in favour of the party who presented it, citing Kopek Construction Ltd v. Ekisola [2010] 3 NWLR (Pt. 1182) 618 at 655, para. E.
6.0. CLAIMANT’S FINAL WRITTEN ARGUMENTS
In the claimant’s Final Written Address, his counsel formulated the following issues for the determination of the Court:
i. Whether given the facts of this case, the law regulating contract of employment and Defendant’s Employee’s Handbook, the termination of claimant’s employment by the defendant is lawful to defeat the grant of the reliefs sought by the claimant.
ii. Whether if the termination of claimant’s employment with the defendant is lawful, the defendant has made out a case to be entitled to her counter claim.
6.0.1.0. Arguing issue one, counsel urged the Court to take judicial notice of the fact that the trust of the case of the parties is whether or not the termination of claimant’s employment based on his absence from duty from July 18, 2012 to July 20, 2022 followed a lawful procedure or not. Referring to Sections 12.3.0 – 12.3.5 of Exhibit C.7, the defendant’s Employees’ Hand Book. Counsel submitted that there is no evidence from the defendant of frequent absenteeism from duty against him to make his termination fall under S. 12.4 of Exhibit C.7 and that apart from issuing the internal memo in Exhibit C.10, to which he responded; there is no evidence that the claimant appeared before the Disciplinary Committee or Executives Management Committee of the defendant before the purported termination of his employment. He submitted that the claimant’s employment being a confirmed one, he must be offered full opportunity of fair hearing before his employment can be terminated, citing Igwilo v. Central Bank of Nigeria (2000) FWLR (Pt. 18) 265 @ 268.
6.0.1.1. On the argument of the defendant that the claimant failed to plead the particulars of the terms and conditions of his employment that were breached, counsel referred the court to paragraphs 12 and 13 of his Amended Statement of Facts.
6.0.1.2. On the defendant’s argument in paragraph 5.032 of his Final Written Address that the case of claimant be dismissed because he admitted being paid salary until the date of the termination of his employment, counsel urged the court to disregard the argument as what the claimant seeks is not payment of salary already received but a nullification of the termination which puts him in a position as though his appointment was never terminated. Hence, his entitlement to all his salaries and entitlements from the date of the purported termination of his appointment till date of judgment on the suit.
6.0.2.0. Arguing issue two on whether the defendant is entitled to its counter-claim, counsel urged the court to strike out the Consequential Amended Statement of Defence/Counter-Claim/Set Off filed by the defendant out of time without leave of court, over one year after the defendant received the Amended Statement of Facts of claimant. Counsel went on that there is no evidence of any legal cost incurred by the defendant to warrant the grant of relief three which in law is not grantable as cost is the eventual consequence of litigation which parties bear. He submitted that a party who wants the court’s decision to be exercised in his favour must place before the court all processes that will aid it to make the pronouncement in his favour. To counsel, the defendant failed to do this in the instant case, citing S & D Consortium v. Ajoku [2011] 6 MJSC (Pt. 2) 132 @ 136.
7.0. REPLY ON POINT OF LAW:
Responding to paragraphs 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24, 4.25, 4.26, 4.27, and 4.28 of the Claimant’s Final Written Address, Counsel submitted that the infraction of absenteeism of the claimant from duty is governed by the provisions of Section 12.8(a)(xi) of the Defendant’s Employees’ Handbook (Exhibit C.7) and not Section 12.3 and 12.4 as erroneously argued by the learned counsel for the claimant. Counsel referred the Court to the cases of A.I.B. Ltd. v. Lee & Tee Ind. Ltd. [2003] 7 NWLR (Pt. 819) and Unity Bank Plc .v. Olatunji [2015] 5 N.W.L.R. (Pt. 1452) page 203 Ratio 9 at page 213.
7.0.1.0. On the issue of the Defendant’s Consequential Amended Statement of Defence and Counter-Claim as raised in paragraphs 4.46, 4.47 and 5.2 of the Claimant’s Final Written Address, counsel submitted that this Court is a Court of record and its record is superior, citing Bello v. Ohikhueme & Ors. (Supra), Order 5 Rule 3 of the Rules of this Court and Anatogu v. Anatogu [1997] 9 NWLR (Pt.519) 49 at 67, Paras D-E.
7.0.1.1. Counsel also submitted that Exhibits on a case form part of a record of proceedings of the Court in respect of the case; and so, they must be examined, scrutinized and assessed for the just determination of the case, citing Olaiya v. Lawal [2019] LPELR-48205(CA) 21-23, paras. E-A and Akarat v. Yabracks [2021] LPELR-53567(CA).
8.0. COURT’S DECISION
` I have read through the facts of this case and the written arguments of counsel to the parties, from all of these I am of the considered view that the following issues need to be resolved by this Court between the parties:
i. Is the termination of claimant’s employment by the defendant proper in the circumstance of this case or he is entitled to his salaries and other allowances from when his employment was terminated?
ii. Is the defendant entitled to its reliefs as counter-claimed?
9.0. Before going to the merit of this case let me resolve a dicey issue raised and argued by counsel to the parties in their final written addresses. Counsel to the defendant contended in paragraph 6.09 of his Final Written Address at page 420 of the record that the Claimant failed and/or refused to file his Reply to Statement of Defence and Defense to Counter-claim despite the fact that the Defendant filed its Amended Statement of Defence/Counter-claim/Set-off on March 26, 2019 pursuant to the leave of the Honourable Court. That the Defendant further filed its Consequential Amended Statement of Defence/Counter-claim/Set-off in 2021, upon being served the Claimant’s Amended Statement of Facts.
9.0.1.0. The claimant’s response to the above contention in paragraph 4.47 of his Final Written Address at page 435 of the record is that the defendant filed his Consequential Amended Statement of Defence and Counter-Claim on November 2, 2021 out of time without the leave of Court. And so, this process goes to no issue and that this explains why the claimant did not respond to the process.
9.0.1.1. The proceedings of this Court show that on February 19, 2020 the claimant was granted leave to Amend his Statement of Facts etc. as prayed for in his application at page 316 and in line with his Schedule of Amendment as exhibited at page 319 of the record. See page 17 of the proceedings’ file. The clean copy of the Amended Statement of Facts in question is at page 329 of the record and it was filed on March 2, 2020. On July 22, 2021 hearing commenced with the evidence of the claimant as C.W.1; see pages 24 & 25 of the proceedings’ file.
9.0.1.4. On November 2, 2021 the defendant filed a Consequential Amended Statement of Defence/counter-claim/set-off to the claimant’s amendment in question, see page 378 of the record. However, on March 16, 2022 at page 32 of the proceedings’ file, the defendant’s counsel Mr. Sam-Ebelogu informed the Court that the matter was for defence but that before the defence, he had two applications but the 2nd application was not in the filed then, so he moved the 1st and the only one before the Court which he filed December 14, 2020; see page 341 of the record. The application was for leave to call Uchechi Uwawunze as additional witness and to deem his Written Statement on Oath as properly filed and served. This application also prayed for leave to frontload additional document, which the defendant pleaded but omitted to frontload. The application was granted by the Court on the same March 16, 2022; see pages 33 & 34 of the proceedings’ file.
9.0.1.5. In essence, the defendant’s Consequential Amended Statement of Defence/counter-claim/set-off, filed on November 2, 2021 at page 378 of the record, in response to the claimant’s Amended Statement of Facts of March 2, 2020 at page 329 of the record was filed a year and eight months after the claimant’s amendment being referred to was filed. This is well out of time as rightly contended by the claimant’s counsel. The defendant did not file any application to regularize this process, neither did its counsel orally apply to regularize same. Instead, counsel to the defendant decided to regularize those processes that have been overtaken by event when the defendant filed its Consequential Amended Statement of Defence/counter-claim/set off of November 2, 2021.
9.0.1.6. Responding to the claimant’s contention that the defendant’s Consequential Amended Statement of Defence/Counter-Claim/set-off filed on November 2, 2021 was defective; counsel to the defendant contended in paragraph 2.6 of his Reply on Points of Law that it was on June 22, 2021 that he was served with certified true copy of the claimant’s Amended Statement of Facts on the order of the Court when the matter came up after which the Court proceeded on its 2021 Annual Vacation in August 2021. Therefore, the Defendant filed its Consequential Amended Statement of Defence/Counter-Claim/Set-Off on the November 2, 2021 after the Annual vacation as, according to counsel, time does not run during annual vacation of the Court under the Rules of the Court.
9.0.1.7. The contention of the defendant’s counsel on the freeze/stop of time from running during this Court’s vacation under our Rules is not correct at all. This is because, by the provision of Order 58 Rule 7(1) and (2) of National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 time continue to run during vacation or recess of the Court for the purpose of filing of processes.
9.0.1.8. Again, in paragraphs 2.7 to 2.9 of his reply on points of law at pages 440 to 441 of the record, counsel to the defendant states and I quote: “Further your Lordship, assuming (which is not in the least conceded) that the Defendant’s Consequential Amended Statement of Defence/Counter-Claim/Set-Off was filed out of time, the Court being a Court of justice has the inherent power under Order 5 rule 3 of the Rules of this Court to deem/regularize same in the interest of justice ---“. Counsel then referred to decided authorities on the principle that the era of striking out of proceedings/pleadings on technical mistakes and irregularities has gone etc.
9.0.1.9. In my considered view, counsel to the defendant is not even apologetic, regretful for or realized that he has committed an error here by not regularizing the processes in question filed out of time on November 2, 2021 in the instant case. To me, the error is not merely trivial but a very careless mistake and omission. This is because, the counsel had already filed the processes on November 2, 2021 before he filed an application to call additional witness in December 14, 2020; moved same and it was granted by the Court on March 16, 2022 without adverting his mind to the defective consequential amendment he filed for the defendant since November 2, 2021. Furthermore, the defendant’s counsel led his witness, D.W.1 – Opara U. N in evidence to adopt his written statement on oath at page 383 of the record on March 16, 2022, which this witness deposed to in support of the defective pleadings (the Defendant’s Consequential Amended Statement of Defence/Counter-claim/Set-off of November 2, 2021) without still regularizing it.
9.0.1.10. The most disturbing aspect of this scenario is that the defendant’s counsel is not even humble enough to appeal or pray for the Court’s discretion in his address by first of all admitting that he has committed an error, this is very unfortunate. Court’s discretion under Order 5 Rule 4 (2) of the NICN (CP) Rules, 2017 is not exercised as a matter of course but it is based on good cause shown by the erring party. It is when good cause is shown to the Court to justify the exercise of its discretion that the Court may exercise its discretion under Order 5 Rule 3 of the Rules of this Court. As it is, I find that the defendant’s pleadings in question is defective.
The above findings notwithstanding and in the overall interest of justice, fairness and equity in this case; the error of the defendant’s counsel in not regularizing the processes in question is hereby excused in line with the provision of Order 5 Rules 3 & 4 of the NICN (CP) Rules, 2017 and the defective Consequential Amended Statement of Defence/Counter-claim/Set-off filed on November 2, 2021 will be considered in this judgment. The defendant’s counsel is hereby directed by this Court to pay to the registry of this Court, the default fee for the period of one year and eight months he is in default in filing the said pleadings on his own honour. This is to be paid when he comes to collect his own copy of this judgment.
RESOLVING THE FRAMED ISSUES
10.0. IS THE TERMINATION OF THE CLAIMANT’S EMPLOYMENT PROPER?
It is important to bear in mind that the employment relationship between the parties in this case is a private one because the employment and its determination is not regulated by the provision of statute(s); in other words, it is not an employment with statutory flavour. Therefore, the contract of employment is regulated by the agreements the parties mutually consented to. In such instance, the first hurdle to cross by the court is to examine the terms and conditions of the said contract of service/employment. From that consideration, the Court will be able to determine the contractual relationship between the parties. In doing this, the Court is bound to look at the letter of appointment of the claimant together with any service regulations connected with the establishment of the employer and the provisions of any Statute or Decree relating to the service conditions of the Establishment. See Odiase v. Auchi Polytechnic, Auchi [2015] 60 NLLR (Pt. 208)1 CA at 23-24, paragraphs F-A and Gbedu v. Itie [2020] 3 NWLR (Pt.1710) SC 104 at 126 paragraph F-H.
10.0.1.0 In the instant case, Exhibit C.4 is the Letter of Offer of Appointment of the claimant dated November 28, 2007 and it is at page 18 of the Record. Exhibit C.6 is the Letter of Confirmation of his Appointment, it is at page 22 of the record and Exhibit C.7 is the Defendant’s Employees’ Handbook, it is at pages 23 to 126 of the record. It is my finding and holding therefore, that the rights, duties and liabilities of the parties in this suit will be determined from the contents of these documents (Exhibits C. 4, C. 6 & C.7) respectively.
10.0.1.2. The first relief of the claimant here is for a declaration that the termination of his employment was wrongful, null and void, hence, it is of no effect. On this relief, the claimant is expected to prove the way and manner the terms of his employment were breached by his employer (the defendant). It is not the duty of his employer to prove its reasons for such breach; see the case of West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-190 paragraphs D-A per Aderemi JCA.
10.0.1.3. At page 130 of the record is a copy of the Letter of Determination of the Claimant’s Employment. It is titled “Service No Longer Required”, dated November 12, 2012 and on the Letter Head Paper of the defendant. The 1st paragraph of this letter states: “we regret to convey to you that the Management has approved the termination of your appointment for Services No Longer Required with immediate effect.” This letter is Exhibit C.11 in this case.
10.0.1.4. However, It is the case of the Defendant in its pleading in paragraphs 2 to 9 of the Consequential Amended Statement of Defence/Counter-Claim/set-Off that the claimant was terminated on ground of absenteeism from duty without appropriate notice and bank access password compromise. Counsel to the Defendant also argued this profusely in paragraphs 5.017 to 5.030 of his Final Written Address for the defendant; see pages 413 to 417 of the Court’s record for these arguments.
10.0.1.5. From the evidence before the Court, on July 18, 2012 a letter was issued by the defendant to the claimant titled “Absconding from duty and Banks Access Password Compromise”. It is at page 128 of record and it Exhibit C.9 in this case. The content of this document represents the basis of the defendant’s complaint against the claimant and it passes for a query on the said complaint. The claimant responded to Exhibit C.9 through the content of Exhibit C.10 dated July 23, 2012 titled “Re; Absconding from duty and Banks Access Password Compromise” at page 129 of record, this also passes for his answer to the said ‘look-like’ query.
10.0.1.6. The defendant’s complaint against the claimant and the claimant’s response notwithstanding, the termination letter, Exhibit C.11 at page130 did not reflect the defendant’s complaint as stated in Exhibit C.9 in this case. This is because, Exhibit C.11 states that the claimant’s “service is no longer required”. In order words, the ground for the termination of the Claimant’s employment with the defendant is: for Services ‘No longer Required’ and I so find. I further find in the circumstance that this ground has no connection with the content of Exhibit C.9 (the query letter of July 18, 2012) at page 128 of record.
10.0.1.7. Furthermore, It is not reflected in the letter of determination of the claimant (Exhibit C.11) that the defendant was not satisfied with the claimant’s explanation in Exhibit C10 on its complaint against him in Exhibit C.9. It is also not stated in Exhibit C.11, the letter of determination that the claimant was relieved of his appointment for Absconding from duty and for Bank’s Access Password Compromise. In the circumstance I hold that the claimant’s employment was not determined for Absconding from duty and for Bank’s Access Password Compromise. I further hold that, the claimant’s employment was determined for ‘Services No longer required’ as clearly stated in Exhibit C.11.
10.0.2.0. CONDONATION OF THE CLAIMANT’S OFFENCE
The defendants contended copiously upon its complaint of ‘Absconding from duty and Bank’s Access Password Compromise’ against the claimant and the claimant responded extensively on these allegations as well. In my considered view, all the arguments and counter arguments on the said complaint of the defendant against the claimant are of no effect in respect of the determination of the claimant’s employment. If the claimant was so found wanting on the defendant’s said allegations against him, it ought to have been expressly stated in Exhibit C.11 at page 130 of the record. In other words, I find and hold that the defendant had forgiven/condoned the allegations of ‘Absconding from duty and Bank’s Access Password Compromise’ against the claimant before his employment was terminated. We should bear in mind that Exhibit C.9, the letter of complaint was written on July 18, 2012, the claimant’s response to the complaint, Exhibit C.10 was written on July 23, 2012 while the letter determining the claimant’s employment (Exhibit C.11) was written on November 12, 2012. See the case of Nigerian Army v. Aminu-Kano [2010] LPELR-SC.243/2008 on condonation of offences.
10.0.3.0. WAS THE DETERMINATION OF THE EMPLOYMENT APPROPRIATE?
Exhibit C.7 is the Employees’ Hand Book of the defendant, which also codifies the Terms and Conditions of the parties’ contract of service in addition to those terms stated in the letter of employment (Exhibit C.4). Exhibit C.7 is at pages 23 to 126 of the record. Section 12. 7 of Exhibit C.7 is on Termination of Appointment and Guidelines for Termination of Appointment by the defendant is under section 12.7.1 of Exhibit C.7.
10.0.3.1. The Guidelines for termination of appointment in Exhibit C.7. S.12.7.1. states:
“Before terminating an appointment on grounds of indiscipline, “reasonable cause” other than on grounds of infirmity of mind or body, the Executive Management shall:
(a) Be satisfied that a prima facie case has been established against a staff.
(b) Notify the concerned employee in writing the ground upon which he/she is being considered for disciplinary action.
(c) Give the erring staff opportunity to defend himself/herself in writing to the allegation leveled against him/her.
(d) Give the concerned employee whose case is being considered the opportunity to appear before the Disciplinary Committee and or Executive Management Committee.
Upon the approval of the Managing Director of the recommendation of the Disciplinary Committees to terminate an appointment for officers on manager grade and below while for officers on senior manager and above will be referred to the Board by the Managing Director for approval of termination. Thereafter the Head, HCD shall execute as approved and use of his/her professional input to avoid litigation.
10.0.3.2. From the content of Exhibit C.11, the letter of termination of the claimant’s employment; no reference is made to any of the grounds of indiscipline, “reasonable cause” or grounds of infirmity of mind or body as stated in section 12. 7.1 of Exhibit C.7 for the said Termination of Appointment of the claimant, neither did the defendant lead any evidence to show the Court that it complied with the above reproduced Guidelines as required by the parties’ terms and conditions of the employment and I so find.
10.0.3.3. In Law, it is trite that whoever desires any court to give judgment in support of his legal right based on the existence of facts which he asserts, shall prove that those facts exist; see section 131 of the Evidence Act, 2011 (As Amended). The defendant having failed to satisfy the Court that it followed the Guidelines enumerated in its Handbook in determining the employment of the clamant in the instant case after the claimant had satisfactorily presented those guidelines to court, I find and hold that the termination of the claimant’s employment by the defendant was not in line with the terms and conditions of his employment.
10.0.3.4. Besides, it is now a bad Labour practice for an employer to determine the employment of its employee with bad reason or with no reason at all as this is currently offensive to International best Practice and International Labour Standard. This Court is enjoined to look at these practices in deciding on issues of this nature by virtue of the provisions of section 254 C (1) (f) & (h) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). The present labour standard globally is to ensure that at least an employment is determined on cogent reason(s) related to the performance of the employee’s duties, just like the content of Exhibit C.7 stipulates. See also ILO Convention 158 on Termination of Employment. See again the case of Aloysius v. Diamond Bank Plc [2015] 58 NWLR (Pt. 199) 92 NIC at 134 para D-F. Based on all the reasoning above, I hold that the termination of the claimant’s employment by the defendant on the ground that his ‘services are no longer required’ and nothing more, is wrongful.
11.0. IS THE CLAIMANT ENTITLED TO ALL HIS SALARIES?
Relief two and three of the claimant against the defendant are for payment of his basic salaries with his entitlements of the sum of N572,482.40 per annum from when he was terminated until the day of judgment together with his leave and other allowances. Alternatively, he is claiming the sum of Ten Million (10,000,000.00) Naira as damages for breach of contract.
11.0.1. As found above in this judgment, the employment relationship between the parties is a private one, hence, it is not one with statutory flavour. This means that the termination in question is not unlawful neither is it illegal but it is only wrongful. In such circumstance, the claimant is not entitled to his salaries and allowances with effect from when his employment was terminated on November 12, 2012 till date or when the judgment sum is paid, neither is he entitled to reinstatement of his employment and I so find. However, because the termination is not in line with the terms of his employment and it is held wrongful, I hold that the claimant is entitled to some compensation. Accordingly, I direct the defendant to pay to the claimant his gross salaries and allowances for six months as his compensation for wrongful termination of his employment. The compensation shall be calculated with the amount of salary he received last from the defendant for the month of October 2012.
12.0. IS THE DEFENDANT ENTITLED TO ITS COUNTER-CLAIMS?
In its consequential Amendment to its Statement of defence and counter-claim, the defendant counter-claims are for a declaration that the termination of the Claimant's appointment for his absence from duty without express approval/ permission and for unauthorized access to the defendant's password assigned to the Claimant, was lawful and legal; an order directing the Claimant to immediately pay the sum of N215,527.44 only to the Defendant as the balance of his indebtedness to the Defendant as at November 12, 2012 when the Claimant's appointment was terminated and for payment of the sum of N5,000,000.00 only as cost for this needless action.
12.0.1.0. The law is that a counter-claim otherwise known as cross-action or counter-action is a separate and an independent action by a defendant who has some reliefs against the plaintiff/claimant. Being a cross-action, the counter-claimant is in the same position as the claimant in an action. The counter-claim is guided by the same rules regarding pleadings as the burden of proof of counter-claim is on the counter-claimant in the same manner as it is required in any civil claim, i.e. on the preponderance of evidence, see - Afolayan v. Ariyo [2015] All FWLR (Pt. 769) CA 1129 at 1090 - 1091 paragraphs H-B.
12.0.1.3. In Exhibit C.12 at pages 131 to 132 of the record, it is shown that the claimant’s total liability to the defendant is the sum of N215, 527.44. This document was frontloaded and tendered in evidence by the claimant himself. In other words, the claimant himself admitted that the balance of his indebtedness to the defendant is the sum of N215,527.44. There are several decided Authorities on this principle that facts pleaded by a party and affirmed or acknowledged by the adversary, no longer require proof by the parties; and so, that principle is trite Law. See the following cases decided by our Courts on this principle: Baalo v. FRN [2016] LPELR-40500 (SC) Per Peter- Odili, J.S.C. (Pp. 42-43, Paras. F-A); Ume & Ors v. Ibe [2016] LPELR-40080 (CA) and Mr. Sunday Adegbite Taiwo v. Serah Adegboro & Anor. [2011] 11 NWLR (Pt. 1259) 562 at 583 per Bode Rhodes - Vivour, JSC." Per IGE, J.C.A. (P. 49, See further the cases of Taiwo v. Adegboro [2011] All FWLR (Pt. 584) 52 SC; Ibadan LGPC Ltd v. Okunade [2000] 3 NWLR (Pt. 11) 45; Ekpemupolo v. Edremode [2009] 8 NWLR (Pt. 1142)166,196 and Unilorin v. Adesina [2009] All FWLR (Pt. 487)56 CA. See again section 123 of the Evidence Act, 2011.
12.0.1.4. Consequently, I find and hold that the claimant, having admitted that he is owning the defendant, a balance sum of N215,527.44; the defendant is entitled to this counter-claim from the claimant. I hereby direct the claimant to pay the said sum of N215,527.44 to the defendant as the balance of his indebtedness to the defendant. I further hold on the defendant’s counter-claim that because I have held above in this judgment that the termination of the claimant’s employment by the defendant is wrongful, defending this action by the defendant through its legal practitioner is not a needless action but it is required and apt. Therefore, I hold again that the defendant is not entitled to the sum of N5,000,000.00 he is counter-claiming as cost of this action.
13.0. On the whole, I hold, declare and order as follows:
i. I declare that the defendant’s consequential amendment of its statement of defence etc. of November 2, 2021 is defective because it was filed out of time and it was not regularized till date.
ii. Nevertheless, I hold that in the overall interest of justice, the defective Consequential Amended Statement of Defence/Counter-claim/Set-off of the defendant is excused in line with the provision of Order 5 Rules 3 & 4 of the NICN (CP) Rules, 2017. The defendant’s counsel is hereby directed to pay to the registry of the Court, the default fee for the period of one year eight months he was in default in filing the processes.
iii. I declare and hold that the claimant’s employment was determined contrary to the terms and conditions of his employment. Hence, the determination was wrongful.
iv. I hold that even though his determination is declared wrongful in this judgment, the claimant is not entitled to his salaries and allowances from when his employment was determined in November 2012 because his employment was not with statutory flavour.
v. I hold that the claimant is however, entitled to his six months’ gross salaries calculated with the last salary paid to him by the defendant in October 2012.
vi. I hold that the defendant is entitled to counter-claim from the claimant the sum of N215,527.44 as the balance of his indebtedness to the defendant as admitted by the claimant.
vii. The defendant is to pay N400,000.00 (Four Hundred Thousand Naira) cost to the claimant.
viii. The defendant is to pay the judgment debt to the claimant less his indebtedness to the defendant within 30days from today.
14.0. Judgment is entered accordingly.
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Hon. Justice F. I. Kola-Olalere (FCIArb) (UK)
Presiding Judge
