IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE E.N.N. AGBAKOBA
DATE: 30TH MARCH 2023 SUIT NO: NICN/ABJ/30/2020
BETWEEN:
FASHINA EKUNDAYO ……………… CLAIMANT
AND
NPF MICROFINANCE BANK PLC ……………… DEFENDANT/COUNTERCLAIMANT
REPRESENTATION
JUDGEMENT
The Claimant via a General Form of Complaint, Statement of Facts and other frontloaded process also dated and filed 10th February 2020 commenced this suit against the Defendant/Counterclaimant seeking the Honorable Court for the following reliefs:
a. A DECLARATION that the letter of suspension dated 20th September, 2017 purportedly placing the Claimant on indefinite suspension with immediate effect was wrongful.
b. A DECLARATION that the termination of the Claimant’s employment was wrongful and against natural justice, equity and fairness.
c. AN ORDER of this Honorable Court setting aside the letter of suspension dated 20th September 2017 purportedly placing the Claimant on indefinite suspension with immediate effect was wrong.
d. The sum of N9,662,928.83 (Nine Million, Six Hundred and sixty- two Thousand, nine hundred and Twenty Eight Naira Eighty Tree kobo) being the Claimant’s unpaid salaries and other benefits from the 20th September, 2017 (date of suspension without pay) to the 19th March, 2018 (date of termination of employment).
PARTICULARS
Profit share for December 2016 N268, 135.39
Terminal Benefit for December 2016 N556, 779.98
Housing Upfront for year 2017 N829, 840.95
Terminal Benefit for March 2017 N559, 628.18
Profitability Bonus for 2017 N853, 687.07
Profit Share for June 2017 N275, 863.77
Leave Allowance for year 2017 N279, 000.00
13th Month Salary for year 2017 N329, 450.50
Profit Share for December 2017 N247, 987.43
Terminal Benefit Balance N557, 847.43
Leave Allowance for 2018 N297, 000.00
Monthly Salary for Feb & March 2017 N588, 304.47
Monthly Salary from April 2017- Mar, 2018 N3, 953, 406.02
e. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant the Sum N84, 000 (Eighty-Four Thousand Naira) being his Cooperative contribution from Dec. 2014- Mar 2017
f. An order directing the defendant to refund the claimant the sum of N400,000.00 for expenses spent in recovering the loan.
g. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant the sum of N50, 000,000.00 (Fifty Million Naira) as special and general damage.
h. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant The sum of N1,000,000.00 as the cost of litigation.
i. AN ORDER of this Honourable Court awarding post-judgment interest at the rate of 10% per annum over the judgment sum until the final liquidation of the claim by the Defendant.
In response to this suit commenced, the Defendant/Counterclaimant filed a Memorandum of Conditional Appearance, Statement of Defence and all frontloaded document dated and filed 29th May 2020 which was initially out of time, however by an application extending the time within which to file the processes the Defendant sought an extension of time. The Court granted the application and the processes were regularized.
The Claimant filed a Statement of Defence to Counterclaim and Reply to the Defendant/Counterclaim’s Statement of Defence on the 4th March 2021. With these pleadings filed, parties joined issues.
Before proceeding, I will give a brief summary of the complaints of the Claimant and the defenses of the Defendant to the complaints.
CLAIMANT’S CLAIM
The Claimant averred that he was employed by NPF Community bank which later metamorphosed into NPF Microfinance Bank Limited (The Defendant). The Defendant vide a letter of employment dated February 6, 2002 employed the Claimant as an assistant officer with N230,672.50 gross salary per annum with terms and condition of employment clearly stated on the Offer of Employment. The defendant confirmed his appointment vide a letter of confirmation dated January 3rd 2003 with effect from 19th August, 2002. And as of 23rd May, 2017, his total salary at the Defendant was N3, 953,406.02 per annum.
The Claimant averred that sometimes in June 2015 a cooperative society called Quintessential Women Business Association approached the head office of the Defendant for a credit facility on behalf of the several cooperative societies under the umbrella of Quintessential Women Business Association and in furtherance of the meeting, a memorandum of understanding executed between Quintessential Women Business Association and the head office and Managers of the Defendant. At the time of the execution of the memorandum of understanding, he was the manager of the Akure branch of the Defendant and was not privy or a part of the negotiation and approval of the agreement. The Claimant averred that he refused to attend to the cooperative because, cooperative borrowing was not part of the Bank’s mandate and he wasn’t privy to the arrangement or agreement with the cooperative. He also couldn’t deal on the transaction because Ekiti State is far from Akure and monitoring the facility will be a major challenge for him. When he refused to accede the request of the cooperative, the leadership of the cooperative called the head office of the Defendant to report the refusal and the head of marketing in person of Mrs. Fatima Olajumoke and Executive Director (ED) Operations in person of Mr. Jude Ohanehi called the Claimant and instructed the Claimant to attend to the cooperative because the Defendant’s head office already signed an MOU with the cooperative and the leader of the cooperative is a known personality. He was particularly ordered to proceed with the transaction as executive approval has been granted from the head office.
The Claimant averred that he was subsequently suspended alongside the head of credit Mr. Olushola Awoniyi and accountant Mr, Samuel Ogunode on the 31st of January 2017 before the loan matured in August 2017. After being suspended, he was mandated to recover the loan from the cooperative group. The suspension of the Claimant was without any due procedure as stated in the rules of employment. The suspension was unlawful because the Claimant performed the duties he was instructed to perform which is the disbursement of the credit facility. He was invited by Anti-Fraud Department alongside the head of credit Mr. Olushola Awoniyi and accountant Mr. Samuel Ogunode and the leaders of the cooperative for examination and interrogation and they were all cleared by the police on the ground that there was no connivance. He was able to recover the sum of N24, 039,410.46 from the cooperative as against the N41, 401,950 that was disbursed to the cooperative.
The Claimant averred that on the 19th March, 2018 he was dismissed from the employment of the Defendant vide a letter of dismissal. He was not paid his total salary and outstanding due to him. And while he was at the employment of the Defendant, he was forced to belong to the staff cooperative where he contributed N3, 000 monthly and his contribution was not paid to him. He instructed his lawyer to write to the defendant demanding his reinstatement and payment of all areas but none has been complied with.
The Claimant averred that during the period while he was under suspension he was forcefully pushed to recover the loan which lead him to relocate to Ekiti State without any funds. He had to stay in different hotels and his budget for hotel in a month is N300, 000.00 (Three Hundred Thousand) for 14 months while he was on suspension. He spent about N4, 500,000.00 (Four Million Five Hundred Thousand Naira) on hotel alone during the 14 months of suspension. He equally spent about N5, 000,000.00 (Five Million Naira) on feeding, transportations, logistics, regards cards callings of customers. He spend an average of N50, 000.00 (Fifty Thousand Naira) only on each of the cooperative customers for the period of 14 Months while he was doing recovering for the Defendant. The total Number of the Cooperative customer he was compelled to do recovery on is 220 people. Claimant averred that he kept on getting promises from the defendant that if he is able to recover the loans he will be reimbursed for all his expenses.
DEFENDANT’S DEFENCE/COUNTERCLAIM
The Defendant on the other hand, averred that the Claimant was an employee vide an offer of Employment Letter dated 6th February, 2002 which provided that there are other conditions of service which form part of the employment agreement between the Claimant and the Defendant. The fourth paragraph of the Claimant’s confirmation of appointment letter dated 3rd January 2003 stated that these conditions (referred to in the offer of employment) remain unchanged. And these conditions of service are contained in the Human Resource Manual (now Employee Hand Book) of the Defendant which was given to the Claimant and which regulated the Claimant’s employment with the Defendant. The Defendant averred that the Claimant was the Akure Branch Manager of the Defendant at the time of the execution of the MOU agreement. And all Branch Managers of the Defendant (including the Claimant) were given copies of the Memorandum of Understanding (MOU) and a session was held with them where the intricacies of the MOU was explained to them in keeping with the Bank’s policy. The Claimant was instructed to attend to the credit facility while adhering strictly to standard rules and practices in the Defendant’s Credit Manual Policy and the Memorandum of Understanding signed by the Cooperative Society and the Defendant. The Claimant never at any time complained that he could not handle the transaction for whatsoever reason. The Claimant never refused to attend to the credit facility as he was the Branch Manager of the Defendant’s Akure Branch. Thus the Claimant was in line with the Defendant’s Credit Policy and Rules responsible for among other things, credit administration and overall performance of the portfolio at the Akure Branch.
The Defendant averred that the loan applications were processed and appraised by the Claimant and his Credit Committee team in the Akure branch before same were forwarded to the Head Office for possible approvals. The Claimant and his Credit Committee team in Akure Branch appraised the loans by confirming whether the loan propositions were viable or not and making of recommendations for the Management’s consideration of the loan propositions. The Defendant’s Board approved loan applications of 11 groups out of the 35 groups that applied for loan. This approval was based on the recommendation of the Regional Head South, who made his recommendations based on the appraisal done by the Claimant. The Defendant averred that cash was disbursed to the Claimant and the instruction of the Defendant to the Claimant was to disburse loans to members of the 11 groups whose loan applications the Defendant approved. Claimant failed to carry out the express instructions of the Defendant to disburse loans to members of the 11 groups whose loan applications were approved. The Claimant was flagrantly disobedient and negligent in the discharge of this duty. When the loans were abysmally not performing, the Defendant’s Internal Auditor conducted an investigation into the loan transaction and submitted a report to the Defendant. The investigation report revealed that the 11 groups which loan applications were approved by the Defendant comprised 220 members. The Claimant disbursed loans to only 83 members from this group and disbursed the remainder to 125 members of the Quintessential Business Women’s Association (Hereinafter referred to as QBWA) who did not belong to any of the 11 groups and whom the Defendant had turned down their loan applications for “risk” reasons. The Claimant neither sought nor obtained the approval of the Defendant to disburse loan to members of the QBWA whose loan applications were not approved by the defendant or to reduce the amount of loans approved for some of the members in the approved 11 groups.
Defendant averred that the Claimant absolutely failed to comply with laid down standard and recommended procedures for disbursement and monitoring of loan members of the QBWA. And the claimant was suspended pursuant to the recommendations of the Internal Auditor’s Investigation report and in line with the provisions of the Defendant’s Human resource manual [now Employee Hand Book). The Claimant was afforded adequate fair hearing before suspension and the eventual termination of his employment after he woefully failed to meet up with expectation regarding the non-performing loans.
Defendant averred that the Claimant’s letter of suspension was issued after adequate fair hearing was granted to him and pursuant to the Internal Auditor’s Investigation Report which indicted the claimant, the Akure Branch Head of credit as a result of their various roles in the non-performing loan transaction of QBWA and recommendation suspension. And due process was followed before the claimant was dismissed. The Claimant’s was dismissal was not wrongful. Its decision to dismiss the Claimant was predicated upon among other vices in handling the loan transaction; the Claimant’s admitted mistake, gross negligence, and dereliction from duties, blatant disregard to procedures/ instructions and ultimately his inability to recover the non-performing loans fully within a reasonable time. The Claimant’s suspension was without pay, he was not therefore and entitled to salaries and any outstanding during the period of his suspension.
The Defendant averred that while the Claimant was under the employment of the Defendant, he made a voluntary contribution from his monthly salary to the Staff Cooperative. The Defendant at no time forced the claimant to make a contribution to the Staff Cooperative. As the Claimant is expected to have made a request in writing to the cooperative requesting for the funds he voluntarily contributed. The Claimant’s Solicitor wrote to the Defendant but the Defendant replied the said letter detailing did not accede to the Claimant letter to the Claimant’s Solicitor’s request. XXXX
The Defendant averred that the Claimant was only instructed in line with his duty to recover the loans since the non-performance orchestrated by his gross negligence and blatant disregard to standard practice and recommended procedures. The Claimant was on suspension until his dismissal by the Defendant trial. Profit sharing is at the discretion of the Defendant’s management upon making profit and the Claimant is not entitled to same as he was under suspension without pay during the period stated in the paragraph. The Claimant was also not entitled to Housing Upfront, Terminal Benefits, and Profitability Bonus during the period he was under suspension without pay. The Claimant is not entitled to the claims including special and general damages as his dismissal followed due disciplinary procedure.
COUNTER-CLAIM
The Defendant Counter-Claimant restated all the averments contained in paragraphs 1- 48 of the Statement of Defence and by way of Counter-Claim against the Defendant to Counter-Claim further avers as follows:
The Counter-Claimant averred that the Defendant to Counter-claims was at the time of his dismissal indebted to the Counter-Claimant.
Particulars of the Defendant Counter-Claimant are indebtedness to the counter-claimant are supplied here under as follows;
i. Outstanding loan balance on vehicle loan =1, 791, 666.57.
ii. Outstanding loan balance on personal loan =514,583.35
iii. Total Outstanding indebtedness of the Claimant =2,306,249.92
The Defendant to Counter-Claim was at time of his retirement entitled to the following benefits:
i. Balance of retirement benefit= 1, 489,049.84
ii. 2017 Upfront payment [1 month] = 69, 153.41
iii. Total benefit = 1, 558,203.25
The Defendant to Counter-Claim’s total entitlement benefit was counter-balanced with his total indebtedness to the counter-claimant as follows;
Total indebtedness= 2, 306,249.92
Less
Total benefits = 1,558,203.25
Net indebtedness = 748,046.67
The Counter-Claimant averred that the Defendant to Counter-Claim was at the time of his dismissal fully aware of his indebtedness to the Counter-Claimant. the defendant to counter-claim’s indebtedness was detailed in his letter of dismissal date 19th day of march 2018 and the Defendant to counter-claim was asked to offset his indebtedness.
WHEREOF the Counter-Claimant Claims as against the Defendant to Counter-claim as follows;
a. The sum of 748,046.67 [Seven Hundred and Forty Eight Thousand, forty six Naira, sixty seven kobo) being the balance outstanding indebtedness counter-Claimant.
b. Interest on the above-state sum at the rate of 21% per annum from the date it became due until judgement is delivered in suit and at rate of 7% per annum thereafter until the final liquidation of the sum.
c. Cost of this action assessed at N2, 000,000 (Two Million Naira Only).
STATEMENT OF DEFENCE TO THE COUNTERCLAIM
The Defendant to the Counterclaim adopted and restated all him statement of facts contained in paragraphs 1 to 28 of his Reply to the Counterclaimant’s Statement of Defence as part of his defence to the Counterclaim.
Counterclaim denied that he was indebted to the Counterclaimant at the time of his unlawful dismissal, but the Counterclaimant is rather indebted to him at the said time of unlawful dismissal.
The Defendant to the Counterclaimant’s Counterclaim stated that the Defendant is fully entitled to the sum of N8,883,087.88 (Eight Million, Eight hundred and Eighty Three Thousand, Eighty Seven Naira, Eighty Eight Kobo) as the Defendant’s unpaid Retirement Benefits against the Counterclaimant’s averment of the Counterclaimant’s averment that the Defendant is only entitled to the sum of N1,489,049.84 (One Million, Four Hundred and Eighty Nine Thousand, Forty Nine Naira, Eighty Four Kobo) as balance due to the Defendant as Retirement Benefits. He is also entitled to the sum of N829, 840.95 (Eight Hundred and Twenty Nine Thousand, Eight Hundred and Forty Naira, Ninety Five Kobo) as his Housing Upfront Allowance for the 12 months in the year 2017 as against the sum of N69, 153.41 (Sixty Nine Thousand, One Hundred and Fifty Three Naira, Forty One Kobo) being put forward by the Counterclaimant. N9, 596,931.19.
Defendant to the Counterclaimant’s Counterclaim stated that the total entitlement benefits due and payable to the Defendant is given as follows: N8, 883,087.88 (unpaid outstanding retirement benefits) +N898, 994.33 (unpaid Housing Upfront for the 12 months of 2017 plus the 13th Month in the said 2017). TOTAL = N9, 662,928.83.
Defendant to the Counterclaimant’s Counterclaim averred that he was not aware of any unpaid and outstanding debt only that he is fully aware that the Counterclaimant are in arrears of payment of Housing Upfront for the 12 months of year 2017. The Counterclaimant is fully aware of their indebtedness to the Defendant for the Housing Upfront for the 12 months of year 2017 and all his retirement benefits as at the time of his unlawful dismissal. Defendant to the Counterclaimant’s Counterclaim specifically pleaded particulars of his unlawful dismissal in and refutes all claims in the letter of dismissal, same being founded on trumped up claims and falling short of the basic requirements of the law.
CLAIMANT’S REPLY TO STATEMENT OF DEFENCE DATED 19th MAY, 2020
The Claimant in Reply averred that at the time of his employment, his principal employer was the NPF Community Bank Limited and not the Defendant as presently constituted on the records. The NPF Community Bank Limited does not have any document referred to as “Rule Book” or “Terms and Conditions of Service”. And upon resumption of duties at NPF community Bank Limited on the 20th February, 2002, the Bank conducted an induction/training exercise for all new staff. The Claimant avers that “other conditions of Service” referred to in the employment letter formed the basis of induction/training exercise which basically revolves around admonitions by the Management on the need for prudence with the Bank’s resources, being diligent, integrity, professionalism, teamwork, honesty and its likes and dat the time of his employment, he was never given an employee’s Human Resource Manual, neither was he given a staff Handbook.
The Claimant averred that he was never a part of any of the MOU neither was he invited to any session where the intricacies of any Memorandum of Understanding (MOU) was explained to him. The said MOU was executed by the management of the Bank and the Executive Committee (EXCO) of the Quintessential Business Women Association (QBWA) and sent to the Akure Branch for implementation.
The Claimant averred that the facility approved by the management of the Defendant was N40, 010,000 (Forty Million, Ten Thousand Naira) which is clearly above the approval limit of an Assistant Manager. As an Assistant Manager whose approval limit is N200, 000 (Two Hundred Thousand Naira). And with respect to this particular loan, the management of the Defendant assured, appraised and approved the said credit facility and even went further to execute an MOU with the QBWA. Considering the fact that the management of the Bank had already approved the said credit facility, he was not in a position to appraise the facility or comply with the credit manual policy as all these procedures have already been done by the management of the Defendant; The Branch was only a dispensing branch.
The Claimant averred that as the Manager of the Akure Branch acting strictly on the instruction from the Head Office, he only made observations as to the risk involved with the transactions to the Head Office via Telephone with the Executive Director of Operations (E.D, operations) and the Head of Marketing. His observations could not have been written because he was not in a position to appraise the credit facility, same being above his approval limit as an Assistant Manager but had to make those observation because the Defendant is using Akure Branch as the dispensing Branch. The document referred to as loan appraisal documents were prepared by the Akure Branch for the purpose of dispensing the credit facility through Akure Branch. And the funds were disbursed only to members of the eleven (11) groups.
The Claimant averred that his admission to acting in error and taking the blame for the Defendant’s error in his memo dated 27th January, 2017 as referenced by the Defendant was clearly to save his job. He proceeded to state in his said memo dated 27th January, 2017 that he acted strictly within the confines of the instruction given to him. Neither he nor any staff of the Akure Branch was privy to the condition listed in (i)-(v) as aforementioned and same was never communicated to the Branch. The Claimant averred that the right to hire and fire an employee on any ground, in this case, the Claimant, must comply strictly with laid down procedures and must be within the ambit of the law.
At the trial which commenced on the 13th October 2021, the Claimant testified as CW1 and as the sole witness, he adopted his Witness Statement on Oath deposed to 10th February, 2021, which was then admitted in evidence as Exhibit CW1. The Witness also tendered 9 (nine) documents.
The Claimant Witness was cross-examined and discharged. The Claimant closed his case without any re-examination. The Defendant/Counterclaimant on the 31st March 2022 entered its defence and called its sole witness one Mr. Dapo Komolafe the regional Head of the Defendant/Counterclaimant. Defendant Witness adopted hid Witness Statement on Oath deposed to on the 29th May 2020 which was admitted in evidence as Exhibit DW1. The Defendant/Counterclaimant Witness also tendered 15 documents.
Claimants documents
Defendants documents.
CLAIMANT’S FINAL SUBMISSION
The Claimant addressing the Court raised a sole issue for determination to wit;
a. Whether the dismissal of the Claimant by the Defendant from the employment of the Defendant was unlawful.
Learned Counsel submitted that it is universal evidential principle that he who asserts proves his assertion and he who claims proves his claim. He submitted that it is settled law that the onus is squarely on a Claimant in an action for unlawful dismissal or termination of appointment to prove the existence of the contract of employment, the terms and/or conditions thereof and how those terms and/or conditions were breached by the employer. OLORUNTOBA - OJU VS ABDULRAHEEM [2009] ALL FWLR (PT 497) 1 AT 42; IMASUEN VS UNIVERSITY OF BENIN [2011] ALL FWLR (PT 572) 1791 AT 1809.
It is Counsel’s submission that the established principle of law is that where the terms and conditions of a contract of employment of service are specifically provided for by statute or regulations made there under, then the contract is protected by statute, in other words, the employment is one with statutory flavour. FAKUADE VS O.A.U.T.H [1993] 5 NWLR (PT 291) 47; IMOLOAME VS WAEC [1992] 9 NWLR (PT 265) 203; EPEROKUN VS UNIVERSITY OF LAGOS [1986] 4NWLR (PT. 34) 162; BAMGBOYE VS UNIVERSITY OF ILORIN [1999]10 NWLR (PT. 622) 290; SHITTA-BEY VS F.R.S.C. [1981] 1 SC 40. The Claimant’s Counsel again submitted that the termination or dismissal of appointment of employees of an employer which is clothed with statutory flavour as in the present case must be terminated in a way and manner prescribed by the relevant statute or regulation and any other manner of termination which is inconsistent with the statute or regulation will be null and void and of no effect. IBAMA VS SPDC (NIG) LTD [2005] 17 NWLR (PT. 954)364; UBN LTD VS OGBOH [1995] 2 NWLR (PT. 380) 647.
He stated that the act of the Defendant is inhuman, malicious and a clear breach of the fundamental right of the Claimant as enshrined in Section 34 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria. And it is clear that the Defendant has not established any valid ground of dismissal of the Claimant from its services; thus the Defendant has failed to comply with the procedure for the dismissal of the Defendant. It is our submission that the Defendant having failed to comply with the laid down procedure for the dismissal of the Claimant; we thereby pray this Court to hold that the dismissal of the Clamant by the Defendant is unlawful. It is Counsel’s submission that the method of dismissal employed by the Defendants against the Claimant does not align with the provisions of the extant law. Claimant’s Counsel stated that in cases of dismissal, the fundamental consideration is to examine the contract of employment and see if it is (i) master servant or (ii) protected by statute or special status. He submitted that to determine whether the dismissal of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is departure from the prescribed procedure or a violation of the elementary. EZE v. SPRING BANK PLC (2011) 48 NSQR 125 @ 165; NDILI V. AKINSUMADE & ORS. (2000) LPELR-6910(CA). Counsel further submitted that it is the rules and regulations governing employment, disciplinary action, termination and dismissal of the employee that makes the employment to be said to be one with statutory flavour or clothed with statutory flavour. Where an employee’s employment is one of statutory flavour, the employment cannot be terminated or dismissal. FMC IDO – EKITTI v. ALABI (2012) 2 NWLR, p. 411. And an employment has statutory flavour if the said employment or contract of service is one in which the terms or terms of the employee is protected either by statute or by regulation. COE, EKIADOLOR v. MRS. OSAYANDE (2010) 6 NWLR (Pt. 1191) Pg. 423 @ 450 – 451. He added that an employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment & discipline of an employee. FMC IDO – EKITTI V. ALABI (SUPRA), OLANIYAN V. UNILAG (NO. 2) (1985) 2 NWLR, (PT.9) @ 599. SHITTA BAY V. FRSC (1981) 1 SC, 4. Learned Counsel submitted that where the provisions of a statute govern the condition of employment of an employee, the court regards the employee as having secured a special legal status, other than the ordinary master and servant relationship with his employer. In that case, the employer is bound to comply with these conditions when it comes to termination of appointment of the employee, otherwise the act of termination would be declared wrongful, null and void. FMC IDO – EKITTI v. ALABI (Supra); FAKUADE v. O.A.U.T.H (1993) 5 NWLRD (Pt. 291) @ 47, IDONIBOYE OBU v. NNPC (2003) 2 NWLR (Pt. 805); DR. TUNDE BANGBOYE v. UNILORIN & ANOR (1999) 70 LRCN p. 2146. (S.C) He added that statutory or special status conferred on the staff, the only way to terminate such a contract with statutory flavour is to adhere strictly to the procedure laid down in the statute i.e. in the case in hand the University of Ilorin Act. OLANIYAN V. UNILAG (SUPRA), SHITTA BAY V. FED. PUBLIC SERVICE COMMISSION (SUPRA), OLATUNBOSIN V. NISER (1988) NWLR (PT. 80) 28; LONGE V. FBN (2010) 6 NWLR (PT. 1189) PG. 1 @ PG. 57; CBN V. IGWLLO (2007) 30 (PT. 2) NSCQR 669 @ 689; TEXACO NIG. PLC V. KEHINDE (2001) 6 NWLR (PT.708) 224 PP. 27-29, PARAS. E-A). Counsel stated that the Claimant is one whose employment is clothed with statutory flavour. It is Counsel’s submission that the employment of the Claimant being one regulated and governed by the Exhibit D2, the NPF Microfinance Bank Human Resources Manual (Employee Handbook), the extant laws reproduced above, providing for disciplinary action, termination, conditions for dismissal and dismissal of the Claimant makes the employment of the Claimant with the Defendant one with statutory flavour in which case the Defendant cannot dismiss the Claimant except in accordance with the extant laws, thus the failure of the Defendant to comply and adhere strictly with conditions and procedure for dismissal of the Claimant renders the dismissal, unlawful, null and void and of no effect. And where an employee has his employment protected by statute, he cannot be dismissed at will. In the matter of discipline of an employee whose employment is statutory, the procedure laid down by such statute must be fully complied with. Counsel cited that case of OLORUNTOBA-OJU VS ABDUL-RAHEEM (SUPRA) AT 46 TO 47 where the SC held thus;
“When an office or employment has a statutory flavour in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. When a statute has conferred on anybody the power to make decisions affecting an individual, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions. There is a presumption that when the legislature confers a power on an authority to make a determination, it intends that the power shall be exercised judicially in accordance with the rules of natural justice.”
Counsel submitted that the same principles are fully applicable to the Claimant’s appointment and the dismissal of the Claimant from the employment of the Defendant did not follow the statutory procedure. The procedure for the dismissal of the Claimant by the Defendant was not complied with or followed, we therefore most humbly urge my lord to hold that the dismissal of the Claimant is unlawful. He added that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office and the Court will void the unlawful act and order the re-instatement of the victim of the capricious exercise of power. KWARA POLYTECHNIC ILORIN V OYEBANJI (2008) ALL FWLR (PT. 447) 141 AT 199; MAILIKI VS MICHAEL IMOUDU INSTITUTE OF LABOR STUDIES [2008] LPELR 8467; SHITTA BAY VS FCSC [1981] SC 40, 56; IDERIMA VS RSCSC [2005] ALL FWLR 431.
On the remedy for wrongful dismissal where the employment is one of statutory flavour, Counsel submitted that where an employment is protected by statute, the employee who is unlawfully dismissed should be reinstated to his position and in addition, damages representing his salaries during the period of his purported removal. S. B. OLARENWAJU V. AFRIBANK NIG PLC (SUPRA), OLANIYA V. UNILAG (SUPRA), SHITTA BAY V. FED. CIVIL SERVICE COMM. (SUPRA); ODIASE V. AUCHI POLYTECHNIC (1998) 4 NWLR (PT. 546) P. 477; CBN v. IGWILLO (supra) @ p. 694, ratio 7. He submitted that it is equally the law that where an employee establishes that his employment has statutory flavour and the court finds that his removal is ultra vires, such employee should be restored to his position. In other words, where the court holds that the termination of employment is ultra vires, null and void, it automatically places the status of an employee to where he was as if nothing happened. FMC IDO – EKITI V. ALABI (SUPRA).
Counsel again submitted that is trite that it is not enough for a claimant to make a claim but he must substantiate the said claim before the court before the court can grant the said claim. Also the defendant failed to debunk this evidence either during their cross examination or in the defence before this Honourable Court. He added that evidence that remained unchallenged or uncontroverted during cross extermination amounts to admission. MABAMIJE v. OTTO CITATION (2016) LPELR-26058(SC).
Counsel finally submitted that the law is trite that for a claimant to be entitling to special damage, the claim shall plead and specifically proof how he arrived at the amount so claimed. He submitted with respect that the clamant has discharged the burden placed on him to warrant is right to the claim for special damages, by pleading the facts and specifically proving same. AKINKUGBE V. EWULUM H. (NIG) LTD (2008) VOL.42 WRN 1 AT 29 LINES 35 - 45; 35 LINES 10 - 20 (SC).
DEFENDANT/COUNTERCLAIMANT’S FINAL SUBMISSION
The Defendant/Counterclaimant in addressing the Court raised four issues for determination to wit;
a. Whether having regard to the pleadings and evidence at the trial, the Claimant proved that his suspension or termination by the Defendant was wrongful, against natural justice, equity and fairness.
b. If answer to issue 1 is in the negative, whether the Claimant is entitled to be paid during the pendency of the Claimant’s suspension / dismissal.
c. Whether the Claimant is entitled to special and general damages whatsoever.
d. Whether the Defendant/Counter-Claimant has proved its Counter-claim to be entitled to the reliefs sought.
ISSUE ONE:
Whether having regard to the pleadings and evidence at the trial, the Claimant proved that his suspension or termination by the Defendant was wrongful, against natural justice, equity and fairness.
Learned Counsel to the Defendant Counter Claimant submitted that the Claimant has woefully failed to prove through credible and admissible evidence that the letter of suspension dated 20th September, 2017 purportedly placing the Claimant on indefinite suspension with immediate effect was wrongful and against natural justice, equity and fairness. He added that Section 131 & 132 of the Evidence Act in the circumstances of this case place the burden of proof of the existence of the fact squarely on the party alleging those facts. Learned Counsel submitted that it is trite law that a Claimant who seeks a declaratory relief must succeed on the strength of his case not on the weakness of the defence. Again, the Claimant has a duty to succeed on the strength of his case even when there is an admission by the Defendant, the Claimant has a duty to prove his case and succeed on the strength of that case. ALAO V AKANO & ORS (2005) LPELR-409 (SC). Counsel submitted also that the facts of any admission by the Defendant does not derogate or change the burden on the Claimant to succeed on the strength of his case. OKOYE & ORS V NWANKWO (2014) LPELR-23172 (SC) KWAJAFA & ORS V B.O.N LTD, (2004) LPELR-1727; JIBRIN V NEPA (2004) NWLR (PT. 856) 210 @ 215 PARA 3. He further added that the Claimant have failed to prove that his suspension and termination was wrongful, against natural justice, equity and fairness. Thereby not entitled to the reliefs sought. And that in an action brought by an employee for wrongful termination of appointment the onus is on the employee to prove same. ZIIDEEH VS RIVERS STATE CIVIL SERV. COMM. (2007) 2 SCM 2 PG 204 AT PG 207 RATIO 4; OLORUNTOBA-OJU & ORS VS THE UNIVERSITY OF ILORIN (2009) 7 SCM PG 118 AT PG 128 RATIO 15.
It is Learned Counsel submission that under master- servant relationship, the contract of employment depends on the terms and conditions reached the both parties. And where contract of employment/ services are provided for by the statute or regulations made there under, that said statue or regulation must be complied with. Counsel defined an employee as any person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. The Counsel stated that the Defendant is governed by the same Human Resources Manuel (now Employee Hand book) which serves as guideline to the working of the Bank. Section 31 of NPFMFB Nigeria Police Force Micro Finance Bank Plc Human Resource Manual {Now Employee Hand Book} which contained the contractual relationship between the Claimant and the Defendant defined suspension.
Counsel further submitted that the employee maintains an upmost duty of care and responsibility in discharging their duties. And an act of gross misconduct, negligent is a conduct of grave and weighty character as to undermine the confidence which should exist between the employee and the employer, or working against the deep interest of the employer. YUSUF V. U.B.N LTD. (1996,) 6 NWLR PT. 457 PG. 632 @ 648, ABOMELI V. N.R.C. (1995)1 NWLR PT. 372 P. 451 AT 461, AND NWOBOSI V. A.C.B. (1995)6 NWLR PT. 404 P9 658 @ 685. He added that suspension of an employee must always be in accordance with the condition of service and the letter of employment. OBIEKWE VS MTN NIGERIA COMMUNICATION LTD, (2014) 43 NLLR Pt 136, 414 @ 463 -465. And in compliance with the disciplinary procedure, the condition of service, NPFMFB Manual and due process as provided, the Defendant had several discussion with the Claimant, wherein the Claimant was given fair hearing by the Defendant before the eventual suspension and termination of the Claimant`s services to the Defendant.
The Counsel posited that the Claimant’s letter of suspension was issued after adequate fair hearing was granted to him in compliance with Section 36 of the 1999 of the Federal Republic of Nigeria as Amended, Section 30 and 31 of NPFMFB Manual and pursuant to the Internal Auditor’s Investigation Report which indicted the Claimant, the Akure Branch Accountant and the Akure Branch Head of Credit. He submitted that the Claimant termination of employment was accordance with the service of contract of the Bank as stipulated in the Human Resources Manuel (now Employee Hand Book) and law. And the court will not interfere with the discretion of an employer exercised in respect with the termination of his employee’s appointment without justifiable cause. MRS FAKUADE VS OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD (1993) 5 NWLR PG 47 AT PG 50 RATIO 4; NIGERIA OIL MILLS LTD VS DAURA (1996) 8 NWLR (PRT 468) PG 601 AT PG 602; ISHENO VS JULIUS BERGER (NIG) LTD (2008) 2 SCM PG 144 AT PG 146; ZIIDEEH VS RIVERS STATE CIVIL SERV. COMM (2007) 2 SCM PG 204 AT PG 207.
It is Counsel’s opinion that regardless of this common law, the law of equity has watered down the harshness of the common law. He submitted that in a master and servant relationship or employment with statutory flavor having given the employee the opportunity to make his defence on the allegation bordering on crime raised against him the employer can be said to have complied with the rules of natural justice as contemplated under the common law. EZE V SPRING BANK PLC (2011) 11-12 (PT.1) SCM PG 93 AT PG 98; ZIIDEEH VS RIVERS STATE CIVIL SERV. COMM (2007) 2 SCM PG 204 AT PG 208.
ISSUE TWO
If answer to issue 1 is in the negative, whether the Claimant is entitled to be paid during the pendency of the Claimant’s suspension / dismissal.
The Defendant Counter Claimant’s Counsel adopted his argument on issue 1 in support of this issue and submitted that the position of the law is that the contract of employment guides the relationship between the employee and employer. ODEH VS. ASABA TEXTILE MILLS PIC. (2004) All FWLR, Pt. 229, P. 2163 at 2173. Counsel submitted that parties are bound by the contractual agreement except in employment governed by statute wherein the procedure for employment and discipline including dismissal of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. PAUL OKORO VS OGARA & ORS (1964) 8 ENLR 9; ABDULAHI BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE, ZARIA (1991) 5 NWLR (Pt. 192) 388,413, ONDO STATE UNIVERSITY VS. FOLAYAN (1994) 7 NWLR (Pt. 354).
Counsel stated that the essence of setting down the terms of the contract of employment expressly in writing is to make the terms easy for discharge and to avoid misunderstanding. He submitted that the Labour Act of 1974 provides that the express terms of a contract will always prevail. Section 7 of the Labour Act makes elaborate provisions for the minimum contents of a contract. GLOBE MOTORS HOLDING NIGERIA LIMITED VS AKINYEMI ADEGOKE OYEWOLE (2022) LPELR 56856 (CA). Counsel stated that the contract of employment of the Claimant, did state that the Claimant will not be paid salaries when suspended. The contract of employment contain the terms with respect to suspension of the employee without pay. Counsel added that by the provisions Section 17 (1) (b) of the Labour Act an employer shall not be bound to pay wages during the period of suspension where the worker was suspended from work as punishment for breach of discipline or any other offence. The suspension of the Claimant was as a result of his penchant for disobedience to the rules of the Bank and his lackadaisical attitude to work. ATOKI V. ECOBANK NIG. LTD. (2014) 47 N.L.L.R. (PT. 151) 33. Counsel went further to state that the rationale for allowing suspension without pay is that in suspending an employee without pay the employer has taken it upon itself (in its own wisdom and judgment) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the employee for the period in which he remains suspended. SHELL DEVELOPMENT COMPANY (NIG.) LTD. V. OMU (1998) 9 NWLR (Pt. 567) 672.
Counsel submitted that the Claimant was under employment of the Defendant made a voluntary contribution from his monthly salary to the staff cooperative, however, the Claimant is expected to have made a request in writing to the cooperative requesting for the funds he voluntarily contributed. He submitted that the Claimant was only instructed in line with his duty to recover the loans since the non-performance of the loans was orchestrated by his gross negligence and blatant disregard to standard practice and recommended procedures. The Defendant is not entitled to pay to the Claimant any money as cost of litigation. The Claimant has failed to establish any claim/reasonable cause of action against the Defendant.
ISSUE THREE
Whether the Claimant is entitled to special and general damages whatsoever. Bm
Learned Counsel submitted that claim of special must be specifically be pleaded. We submit that the claim is tantamount to a claim for specific damages which must be specifically pleaded, particularized and proved by credible evidence. The Claimant must led evidence to show losses and loss of reasonable profit. These are evidential issues which the court must not speculate on. UBA PLC V. BHAKOR CONSULT LTD (2022) LPELR-57697(CA); F.M.C.G. DISTRIBUTION LTD V. BONIFACE (2019) LPELR 47652(CA). He stated that the Claimant did not meet any of the requirements in the above decisions of the court for a claim for loss of profit. The Claimant has not discharged the burden placed on it by particularly pleading, particularizing and strictly proving with arithmetical exactitude, the facts of loss of reasonable profit and the Claimant did not particularize the loss of profit claimed and ipso facto could not prove strictly and with arithmetical exactitude the loss of proof claimed. The Claimant also has not approached this court to determine and declare that the Defendant action was wrong. He submitted that the law is trite that general and specific damages (which in this case includes interest and loss of profit) only flow from a breach of contract. OKOI V. BMIL INTL INC & ANOR (2016) LPELR-41230(CA).
Counsel submitted that it is a well-established principle of law that where the conduct of the employee constitutes gross misconduct, it amounts to summarily dismissal without any entitlement or damages whatsoever. EZE VS SPRING BANK PLC (2011) 11-12 (PT.1) SCM PG 93. Thus the Claimant is not entitled to the claims including special and general damages as his dismissal followed due disciplinary procedure. Moreso, the Claimant was given adequate fair hearing and ample time throughout the period to defend him and to recover the non-performing loans respectively. He submitted further that the Claimant is not entitled to post- judgment interest, that from the totality of the Claimant’s evidence, the Claimant has woefully failed to prove his case to be entitled to any reliefs sought in this case.
It is Counsel’s submission that where there is damage or wrong, there is a remedy. Ubi jus ibi remedium. Conversely, where there is no damage or wrong, there will be no remedy. The general rule that where there is a wrong, there should be a remedy is a cornerstone of any system of justice. To deny a remedy to a victim of a wrong should always be regarded as exceptional. As has been frequently stated, any justification must be necessary and requires strict and cogent justification. JONES V KANEY [2011] UKSC 13
ISSUE FOUR
Whether the Defendant/Counter-Claimant has proved its Counter-claim to be entitled to the reliefs sought.
Counsel adopted his submissions in issues 1 and 2 and submitted that the Defendant/Counter-Claimant has showed from the facts, evidence and documents before the Court that the Claimant/Defendant to Counter- claim employment with the Defendant was terminated in accordance with the Human Resources Manuel (now Employee Hand Book) and law. The termination is not in any way against natural justice, equity and fairness. He added that the Defendant to Counter-Claim was at the time of his dismissal indebted to the Counter-Claimant. And the letter of dismissal dated 19th day of March, 2018 before this Court clearly stated the indebtedness of the Claimant, this was not rebutted or countered by the Claimant/ Defendant to Counter-claim.
On the parties adopted and adumbrated their respective processes and this matter was adjourned for judgement.
Court’s Decision
I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues formulated by the Defendant to wit: -
a. Whether having regard to the pleadings and evidence at the trial, the Claimant proved that his suspension or termination by the Defendant was wrongful, against natural justice, equity and fairness.
b. If answer to issue 1 is in the negative, whether the Claimant is entitled to be paid during the pendency of the Claimant’s suspension / dismissal.
c. Whether the Claimant is entitled to special and general damages whatsoever.
d. Whether the Defendant/Counter-Claimant has proved its Counter-claim to be entitled to the reliefs sought.
Before I delve into the merits of this case there is a need to address a misconceptions held by both parties. In arguing the question of fair hearing both parties referenced Section 36 of the 1999 CFRN (as amended) however ith regard to fair hearing, the position of the law is as per the recent decision of the Supreme Court in REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410, where the Supreme Court, relying on BAKARE V. LSCSC [1992] 8 NWLR (PT. 266) 641 AT 699 - 700 and EKUNOLA V. CBN [2013] 15 NWLR (PT. 1377) 224 AT 262 - 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under Section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body.
While I hold “that a careful reading of REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS. Supra will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under Section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims - audi alterem partem and nemo judex in causa sua”. The former relates to criminal trials in Courts of Tribunals whilst the latter is the yardstick of the domestic tribunes and administrative panels. I also find and hold that “The reliance by lawyers on Section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law. Under administrative law, by judicial review, the court can always set aside any disciplinary process that does not adhere to the common law rules of natural justice” See Suit No: NICN/ABJ/380/16 HONOURABLE JUSTICE GLADYS K. OLOTU Vs. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & 4 ORS delivered on the 17th September 2017. So the claimant references to Section 36 of the 1999 CFRN is of no import in this matter. I find are of no moment as the test is one of whether the twin pillars where observed.Bulkachawa JCA held in Jibrin v NEPA (2003) LPELR-7267(CA) Pg. 19.
To properly consider these issues and appraise the Claimants issues it is necessary to make a determination as to the nature of the Employment Relationship between the parties. The law recognizes three types of employment in fact the Supreme Court in the case of LONGE Vs. FBN LTD [2010] LPELR 1793 SC held that “…. there are three categories of employment
(a) Purely Master and Servant relationship
(b) Servants who hold their office at the pleasure of the employer
(c) Employment with statutory flavour….”
The Claimant contention is that his employment is done of Statutory flavour, while the defendants have argued along the lines of a Master servant relationship. In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 and in SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20.
In support of his case the Claimant tendered Exhibit C7 reproduced below; -
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After careful reading of the contents of Exhibit C, I find that it is bereft of any reference to a condition of employment, albeit in paragraph 1 sub 5 which reads “Other conditions of service will be handed over to you on resumption of duty”. The letter also stated that the Claimant would serve a three month probation and at the end of six months he would receive a confirmation “after which notice of termination by either party becomes one month or cash in lieu.
The fact that the Defendant is a Federal Government Agency established by an Act of parliament, does not mean that its conditions of service for it employees can create a special character or elevate the employment relationship to be one of Statutory flavour. Such relationship will be classified as a master/servant relationship. In other words, in addition to the requirement that the employer must be a body set up by statute, the stabilizing statute must make express provisions relating to the employment of the staff of the category of its employees in matters of discipline including termination dismissal of the employees. See FAKAUDE V. OAUTH (1993) 5 NWLR (Pt 291) 47 @ 63, NIIA v. AYANFALU (2006) LPELR-5960(CA); FMC IDO-EKITI & ORS v. ALABI (2011) LPELR-10931(CA). In the recent case of C. B. N. V. OHIKU (2020) LPELR-51274(CA) it was held that unless an employee's employment is governed by statute or regulation that can be properly called a statutory or subsidiary legislation providing for procedure for the removal or dismissal of an employee such an appointment cannot be said to be an appointment with statutory flavour.
"In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of KWARA STATE POLYTECHNIC ILORIN V. SHITTU (2012) 41 WRN 26. In the case of UNIVERSITY OF ILORIN V. ABE (2003) FWLR (Pt. 164) 267 at 278, this Court held: -"It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made thereunder, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder." NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA)
From the Claimants Leter of Employment and other exhibits before the Court , I have made a determination that the Claimant was in an Employer / Employee relationship commonly referred to as Master and Servant relationship. I agree with the Defendants on this point.
In a master servant relationship parties are bound by the terms of their contract SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16. PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP. Stated that “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them.
The parties made reference to the Labour Act, however this only applies to workers and that law went on to define worker; "worker" means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include -
(a) any person employed otherwise than for the purposes of the employer's business; or
(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise;
Which means that the Labour Act would not apply to the Claimant. As was held by the Supreme Court in S.S. CO. LTD V. AFROPAK [2008] 18 NWLR (PT. 1118) 77 AT 82 as –The Labour Act, Cap. 198, Laws of the Federation on Nigeria, 1990 which applies to workers, strictly to the exclusion of the management staff, defines a contract of employment as any agreement, whether oral, written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.
The Defendants presented Exhibit D2 as the Handbook governing the Claimants employment, this document came into play in 2010 and provides at page 7 therein that the said Exhibit C7 presents guidelines prudent management of human resources and the work environment for the defendant. And went on to state that the Exhibit shall apply to long term, full term employees working a minimum of 40 hours weekly. although the Claimant refuted that submission arguing that he was not a party to the said document but failed to show the Court the document referred to in Exhibit C7. I find that Exhibit C7 is the document governing the Defendants employees including the Claimant I find.
The claimants reliefs are as follows: -
a. A DECLARATION that the letter of suspension dated 20th September, 2017 purportedly placing the Claimant on indefinite suspension with immediate effect was wrongful.
b. A DECLARATION that the termination of the Claimant’s employment was wrongful and against natural justice, equity and fairness.
c. AN ORDER of this Honorable Court setting aside the letter of suspension dated 20th September 2017 purportedly placing the Claimant on indefinite suspension with immediate effect was wrong.
d. The sum of N9,662,928.83 (Nine Million, Six Hundred and sixty- two Thousand, nine hundred and Twenty Eight Naira Eighty Tree kobo) being the Claimant’s unpaid salaries and other benefits from the 20th September, 2017 (date of suspension without pay) to the 19th March, 2018 (date of termination of employment).
PARTICULARS
Profit share for December 2016 N268, 135.39
Terminal Benefit for December 2016 N556, 779.98
Housing Upfront for year 2017 N829, 840.95
Terminal Benefit for March 2017 N559, 628.18
Profitability Bonus for 2017 N853, 687.07
Profit Share for June 2017 N275, 863.77
Leave Allowance for year 2017 N279, 000.00
13th Month Salary for year 2017 N329, 450.50
Profit Share for December 2017 N247, 987.43
Terminal Benefit Balance N557, 847.43
Leave Allowance for 2018 N297, 000.00
Monthly Salary for Feb & March 2017 N588, 304.47
Monthly Salary from April 2017- Mar, 2018 N3, 953, 406.02
e. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant the Sum N84, 000 (Eighty-Four Thousand Naira) being his Cooperative contribution from Dec. 2014- Mar 2017
f. An order directing the defendant to refund the claimant the sum of N400,000.00 for expenses spent in recovering the loan.
g. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant the sum of N50, 000,000.00 (Fifty Million Naira) as special and general damage.
h. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant The sum of N1,000,000.00 as the cost of litigation.
i. AN ORDER of this Honourable Court awarding post-judgment interest at the rate of 10% per annum over the judgment sum until the final liquidation of the claim by the Defendant.
With regard to Issue “Whether having regard to the pleadings and evidence at the trial, the Claimant proved that his suspension or termination by the Defendant was wrongful, against natural justice, equity and fairness”. The positionof the law with regard to suspension is as was held in the case of ATOKI v. ECOBANK PLC (2014) 47 NLLR (PT. 151) 47 Where it was held that “Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Under the Common Law, a term entitling the employer to suspend the employment of an employee will not be implied into the contract of employment. An employee suspended with or without pay, and whether indefinitely or for a period of time, remains an employee in service during the suspension period until the contract of employment is determined by the employer or until a decision about such an employee is taken one way or the other”. LONGE v. FBN PLC (2010) 6 NWLR (PT. 1189) 1. The employer has the right to suspend an employee when necessary, with or without pay or at half pay. However, employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay the employer has taken it upon itself (outside of the court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. SHELL PET. DEV. C. (NIG.) LTD v. OMU (1998( 9 NWLR (PT. 567) 672.
What all that means is that whereas an employee has an unfettered right to suspend his staff, the condition of the suspension must be reserved in the contract of employment. It cannot be implied. Now in Exhibit D2 at page 31 provides that Suspension
FOR SUSPENSION WITHOUT PAY ONLY
EXHIBIT D5 –D7 indicate the query , the Claimant’s reply D9 memo suspending th claimant. I find the claimant was given a query and replied before he was suspended, I find the suspended wqs executed according to the provisions of D2 and thereby followed due process. This flank of this issue and reliefs (a) (c) and (d) thereby fail.
The Claimant was issued Exhibit C5Lertter of Dismissal reproduced below; -
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In OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 the Apex Court held that “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court’s satisfaction:
a) That the allegation was disclosed to the employee;
b) That he was given a fair hearing;
c) That the employer believed that the employee committed the offence after hearing witnesses. Bamgboye V. University of Ilorin (1999) 10 NWLR (pt. 622) 290 referred to.] (p. 145, paras. A-B)
It is settled that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded to him to justify or explain same - see Yusuf v. Union Bank (1996) 6 NWLR (Pt.457) 632, where Wali, JSC stated - " - - Before on Employer can dispense with the services of his Employee under the common law, all he needs to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the Employee is being dismissed involves accusation of crime".
It is settled law that a master has a right to summarily dismiss a servant where the servant has indulged in conduct inconsistent with due and faithful discharge of the duties for which he was engaged” See the case of WILBROS NIG. LTD. &ANOR Vs.ONWUME MACULAY [2009] LPELR 8507. Where Galadima JCA went on to say “Where an employee is guilty of gross misconduct which has been defined as a conduct of a grave and weighty character as to undermine the confidence which exists between the employee and his employers or working against the deep interest of the employer he could be lawfully dismissed summarily without notice and without wages. See BOSTON DEEP SEA FISHING CO. V. ANSELL (1888) 39 Ch. D.339; BABATUNDE AJAYI V. TEXACO (NIG) LTD & ORS (1987) 3 NWLR (Pt.62) 577; OLANIYAN V. UNIVERSITY OF LAGOS (supra) UBA LTD V. OGBOH (supra) and ANTE V. UNIVERSITY OF CALABAR (2001) 3 NWLR (Pt.700) 239 at 258 - 259. Under common law and statute law, disobedience of lawful order from a servant high or low is viewed with seriousness attracting summary dismissal. See Professor OLATUNBOSUN V. N.I.S.E.R. Council (1988) NWLR (Pt.80) 25."Per GALADIMA, J.C.A.(Pp. 22-23, paras. C-A) SEE FR 143.
From the evidence before the Court Exhibits D D7(1) and D7(2) as well as D6 I find that in line with OLORUNTOBA-OJU V. ABDUL-RAHEEM (Supra). The Defendants have satisfied (a), (b) and (c). I resolve the dismissal/ Termination flank of this issue against the Claimant. Relief (b) fails.
In issue 2 the defendant is asking whether the Claimant is entitled to be paid during the pendency of the Claimant’s suspension / dismissal.
The Defendants Exhibit D2 rules out salary payment as did Exhibits D9 and Exhibit C9 Memo; - Suspension from Branch Operation, during suspension. However the Claimant in relief d the claimant is asking for The sum of N9,662,928.83 (Nine Million, Six Hundred and sixty- two Thousand, nine hundred and Twenty Eight Naira Eighty Tree kobo) made up.
Profit share for December 2016 N268, 135.39
Terminal Benefit for December 2016 N556, 779.98
Housing Upfront for year 2017 N829, 840.95
Terminal Benefit for March 2017 N559, 628.18
Profitability Bonus for 2017 N853, 687.07
Profit Share for June 2017 N275, 863.77
Leave Allowance for year 2017 N279, 000.00
13th Month Salary for year 2017 N329, 450.50
Profit Share for December 2017 N247, 987.43
Terminal Benefit Balance N557, 847.43
Leave Allowance for 2018 N297, 000.00
Monthly Salary for Feb & March 2017 N588, 304.47
Monthly Salary from April 2017- Mar, 2018 N3, 953, 406.02
With the exception of the last to stipulated items, the listed items are not pay and as such must be considered individually. While I agree with the Defendants that the Claimant is not entitled to salary. And claims for Profit Share and Profitability Allowances require to be specifically proved which has not been done in this cas and as such thereby fail. Terminal benefits the Claimant has not presented the authority or agreement where this claim is specified for his entitlement as neither C6 or C7 Letter of Offer or Letter of review salary and allowances contain any reference to this claim. With regard to Housing up front, this court has always held that earned allowances, when an employer aggregates allowances and decides to pay in sum the claimant is entitled to such payment in full for both 2017 and 2018 and by Exhibit C6 that is N820, 077.75 x 2 = N1, 640,155.50.
The claimant is also entitled to leave allowances, although not reserved in any contract leave is considered an employment right integral in a contract of service and annual leave is a sin a qua non but more importantly this is not precluded by the Defendant’s suspension.
The Claimant also asked for order directing the defendant to refund the claimant the sum of N400,000.00 for expenses spent in recovering the loan, but failed to present any eveidencve of prior approval for the expenditure to enable the Court consider this claim, , in fact there is no evidence before this Court in support of this claim, for this reason this claim does not succeed.
The Claimant is also asking for a refund of cooperative contribution the Defendants have contended that the claimant is required to write formally to the cooperative for the refund of his contribution, whereas Cooperative Societies are considered separate legal entities from their employer institution, this Court has always held that the employer institution because they lend their names to the organization and are made up of their workforce must be held involved See the cases of WAEC . the defendant is hereby directed to ensure the claimant is paid his contribution to their cooperative society within 30 days
The Claimant has not informed this court how he arrived at N50M and for that reason this head of claim fails.
Now to the De4fendants Counter Claim: -Whether the Defendant/Counter-Claimant has proved its Counter-claim to be entitled to the reliefs sought. The dfendants counter claim is
a. The sum of 748,046.67 [Seven Hundred and Forty Eight Thousand, forty six Naira, sixty seven kobo) being the balance outstanding indebtedness counter-Claimant.
b. Interest on the above-state sum at the rate of 21% per annum from the date it became due until judgement is delivered in suit and at rate of 7% per annum thereafter until the final liquidation of the sum.
c. Cost of this action assessed at N2, 000,000 (Two Million Naira Only).
But the Defendant Counter claimant has presented no evidence in support of their Counter claim, the counter claim is based on the position of the loans purportedly held by the Claimant yet the Defendant did not present any evidence of these loans so as justify these claims and for that reason the Court is unable to substantiate this counter claim. It therefore
For avoidance of doubt Reliefs d succeeds in part, with respect to the claimants in housing upfront allowanced N1, 640,155.50, Leave allowance N297, 000.00 for the year 2017 only being N297, 000 and relief e succeed. This court also the defendant to facilitat4e the refund of the claimant’s cooperative contributions within 30 days,
All other reliefs fail
Cost of this suit is placed at 300,000
All payment to be made within 30 days ther4eafter a 10% interest per anum will attach.
This is the Court’s Judgement and it is hereby entered accordingly