WD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

DATED 27^th OCTOBER, 2025                                                            

Suit No: NICN/LA/204/2020

BETWEEN

1.         Nwangwu Augustine Ozoemenam           -           MGR 1

2.         Nwaohiri Maximus Onyema          -           MGR 3

3.         Isibor Ojekhere Lawrence              -           DM 1

4.         Ajayi Olubusola Bosede (Agbeniyi)           -           AM 1

5.         Masah Oluwatoyin Olamide          -           SBE 1

6.         Fasoro Babayemi Michael              -           SBE 1

7.         Oke Stella Adepeju                          -           SBE 1

8.         Olayinka Tosin Nurudeen               -           SBE 1

9.         Aguh Sabinus Maduabuchi            -           SBE 1                           CLAIMANTS

10.       Subair Mustapha Ola                      -           SBE 1

11.       Asomba Uzonna George                 -           SBE 2

12.       Anaenyeonu Ogochukwu Ugwu   -           BE 1

13.       Okoli Judith Chikaodili                    -           BE 1

14.       Ajala Alayode Olayinka (Obadina)            -           ABE 1

15.       Ajetunmobi Olanrewaju Toyin      -           ABE 1

16.       Olanrewaju Moses Olayera                       -           ABE 1

17.       Esoro Obinna Patrick                      -           ABE 2

18.       Ezeoti Maureen Obiageli                -           ABE 2

19.       Unegbu Chike George                     -           ABE 3

(Suing for themselves and as representatives of employees

who were terminated, forced to resign in 2017, August 2018 

and January, 2019)

AND

FIDELITY BANK PLC                                                              DEFENDANT

REPRESENTATION:

Paul Omoijiade for the Claimants

S. W. Pepple with E.Orji and Michael Bassey for the Defendant

JUDGMENT

By a general form of complaint filed on the 7^TH July, 2020, the claimants claimed the following reliefs against the defendant jointly and severally:

Accompanying the complaint is the claimants’ written statement on oath, list of witnesses and documents to be relied upon on trial dated and filed 7^th July, 2020.

In reaction, the defendant entered formal appearance and then filed a statement of defence, witnesses written statement on oath and list of documents to be relied upon at trial dated and filed 14^th October, 2020.

The claimants’ Reply to the defendant’s statement of defence is dated and filed 20^th November, 2020. 

The summary of the facts pleaded by the claimants is that the claimants are former employees of the Defendant who were forced to resign in 2017, 2018 and January 2019 from the Defendant's Bank; that the 1^st to 4^th Claimants were Managers, Assistant Managers and Managers respectively in the Defendant Bank until their employment were terminated and forced to resign; that the 5^th to 11^th Claimants were in the category of Senior Bank Executive (SBE1) and Senior Bank Executive 2 (SBE2) in the Defendant and they were forced to resign; that the 12^th to 19^th Claimants were in the category of Bank Executive (BE1), Assistant Bank Executive (ABE 1, 2 & 3) before the termination and forced resignation of their appointments; that the Claimants are suing the Defendant for themselves and as representatives of employees whose appointments were terminated or forced to resign in 2017, 2018 and January 2019 respectively. That the Claimants authorized Mr. Nwangwu Augustine Ozoemenam and Asomba Uzonna George to tender their Exhibits/documents and give evidence on their behalf in this Honourable Court. That upon the Claimants' employment they individually signed a Contract of Employment and their employments regulated by the Defendant's Staff Handbook, Personnel Policies & Procedure Guide (PPPG) Version 2.8 Policy Circulars and relevant ILO Conventions and Recommendations. 

That the Defendant retired the 1^st Claimant and terminated the employment of the 18^th Claimant “for services no longer required” and forced the other Claimants to resign their employment and that the action of the Defendant in forcing the Claimants except the 1^st Claimant to resign their appointments without prior query and warning amounts to Constructive dismissal, an unfair labour practice and a breach of their Contract of Employment, the Defendant Handbook and Personnel Policies and Procedure Guide (PPPG) page 19, paragraph 5.2.1 and Page, 20 and 21 paragraph 5.2.5 which provides: 

"5.2.1              Query- If an employee commits an offence, which in the opinion of the Directorate Head, Division or Group Head is serious, such an employee can be issued with a query, which should be answered within 24 hours .... " 

"5.2.5              Termination- Termination of employment based on unsatisfactory performance or misconduct may be imposed. An employee whose appointment is terminated shall be given notice as specified in the staff letter of appointment or paid in lieu of notice. An employee's appointment maybe terminated on any of the following grounds: 

iii.        Misconduct, 

iv.        Habitual lateness, 

v.         Unsatisfactory performance (based on performance appraisal), 

vi.        Rudeness to any of the Bank's customers, 

vii.       Drawing of cheques on unfunded accounts, 

viii.      Insubordination, insolence, or any other form of unsatisfactory conduct, 

ix.        Refusal to work or carryout lawful instructions, 

x.         Engaging in any business that conflicts with the Bank’s interest, 

xi.        Commission of any other offense of similar gravity as these described above. 

That the termination of the 2^nd – 18^th and 19^th Claimants' employment and forced resignation is not in accord with International Best Practice, particularly Article 7 of the ILO Convention 158 and paragraph 8 of the ILO Recommendation 166, which provides: 

Article 7, 1LO Convention 158: 

The employment of a worker shall not be terminated for reasons related to the worker's Conduct or Performance before he is provided an opportunity to defend himself against the allegation made, unless the employee cannot reasonably be expected to provide the opportunity. 

Recommendation 166: 

The employment of a worker should not be terminated for unsatisfactory performance unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed. 

That upon the termination and forced resignation of the 2^nd – 18^th and 19^th Claimants from their employment by the Defendant, they were not paid their accrued leave days on a pro-rated basis pursuant to paragraph 7.1.12, page 31 and 7.1.13 of the policies and Procedure Guide (PPPG) which provides: 

7.1.12.            Leave on Termination of Employment. On termination of employment other than dismissal, days on a pro-rated basis.

 7.1.13.            Leave on retirement or Resignation. An employee going on normal or early retirement or an employee who has resigned must be given his/her leave cleared by the due date, as he/she ceases to be on the Bank's payroll from that date. It is therefore necessary that supervisors and the Divisional Heads should ensure that all outstanding leave is taken before termination of service. Where this is not practicable, then payment is made in lieu.

That in line with the Claimants' Contract of Service and the Defendant's Policies and Procedure Guide (PPPG), paragraph 7.20.2, page 53 the Claimants are to remain in employment until the attainment of 55 years of age and that the Defendant in paying the Claimants' severance benefit deducted various sums of already earned income such as housing, travelling, variable pay, performance benefit, leave, estacode, clothing allowance from their severance pay as shown below: 

Deductions of already earned income from claimants

Claimant 1

(1) Nwangwu Augustine Ozoemenam 

                        ii.         Clothing                                  11,730.07 

iii.        Education                               10,909.13 

                        iv.        Entertainment.                                    7,441.47 

5. Lunch                                        9,001.95 
6. Security                                    5,819.96 
7. Reimbursable                                     11,346.71 
8. Domestic                                 1,896.49
9. L/phone                                  3,697.70
10. Utility                                      2,056.94 
11. Housing                                1,894,672.91 
12. Travelling                               393,112.53 
13. Estacode                                112,043.20 

                        xiv       Variable                                  307,474.73 

                        xv.       Performance benefits                       89,413.56 

                        xvi.      Basic                                        16,215.25 

                        xvii.     Leave                                       35,943.80 

                        xviii.    P.P. Allowance                                    19.436.78

                                    TOTAL                                     3,380,929.51

Claimant 2

(2) Uwaohiri Maximus Onyema

1. Housing                                  2,056,863.00 
2. Penalty interest                                  2,711,471.53

                                    TOTAL 4,768,334.53

Claimant 6 

(6) Masah Olamide

1. Furniture                                322,736.27
2. Housing                                  241,810.81 

iii         Travelling                               181,352.97

iv.        Variable                                  321,501.92 

                        v.         Performance Benefits                      115,119.12 

                        vi.        Leave                           23,666.47

                                                            TOTAL          1,206.187.56

Claimant 7

(7) Oke Stella Adepeju

                        ii.         Clothing                                   2,331.82 

                        iii         Education                                2,707.50 

                        iv         Entertainment                                    2,331.82 

                        vi         Utility                                       2,503.74

                        vii.       Reimbursable                                      5,271.27 

                        viii       Domestic                                  l,564.54

                        ix.        Transport                                 1,804.24 

                        x.         Housing                              1,635,778.98

                        xi.        Travelling                               132,646.74

                        xii.       Variable                                  137,226.43 

                        xiii       Performance Benefits          201,458.32 

                        xiv       Basic                                         3,606.32 

                        xv.       Leave                                       17,310.33

                                    TOTAL                                   2,429,779.69

 Claimant 8

            (8). Olayinka Tosin Nurudeen

                        ii.         Clothing                                  13,382.92

                        iii.        Education                               15,539.08

                        iv.        Entertainment                                   13,382.92

2. Lunch                                       14,461.00
3. Utility                                      14,369.58 

                        vii        Incentive                                 30.253.17 

                        viii       Reimbursable                                      8,979.25 

                        ix         Transport                                14,261.92 

                        x          Housing                                  293,966.00 

                        xi         Travelling                               353,379.58 

                        xii        Variable                                  243,086.83 

                        xiii       Performance Benefits                       305,313.00 

                        xiv       Basic                                        27,949.80 

                        xv        Leave                                       46,115.67

                                    TOTAL                                   1,533.011.55

Claimant 10 

(10) Subair Mustapha Ola 

                        i.          Furniture                                138,570.83 

                        ii.         Housing                                1,322,847.00 

                        iii.        Travelling                               353,379.58 

                        iv.        Variable                                  243,086.83 

                        v.          Leave                           46 115.67

                                    TOTAL                                 2,103,999.91

Claimant 11 

(11) Asomba. U. George

(i)        Furniture                                 45,594.30 

                        (ii)       Housing                                  388,793.84 

                        (iii)      Travelling                               245,603.74 

                        (iv)       Variable                                  212.246.16 

                        (v)        Leave                                       32,051.16

                                    TOTAL 924,289.20

Claimant 12 

(12) Anaeyeonu Ogochukwu 

                        i.          Furniture                                 21,970.49 

                        ii.         Housing                                  869,120.30 

                        iii.        Travelling                               209,725.18 

                        iv.       Variable                                   94.150.43 

                        v.         Leave                                       23,815.19

                                    TOTAL                                    1,218,781.59

Claimant 13 

(13) Okoli Judith Chikaodili

1. Furniture                                 43,311.01
2. Housing                                  601,354.86 
3. Travelling                               236,296.26 
4. Variable                                  185,601.21 
5. Performance Benefits                      116.259.89 

                        vi.        Leave                           26,832.45

                                    TOTAL                     1,209,655.68

 Claimant 15

(15) Ajetunmobi Olanrewaju

1. Furniture                                 21,257.36 
2. Clothing                                   3,289.23 
3. Education                                4,111.54
4. Entertainment                                    3,289.23 
5. Lunch                                       4,933.85
6. Utility                                       2,466.92 
7. Incentive                                  7,399.81 
8. Reimbursable                                      1,644.62 

                        ix         Transport                                 1,980.50 

                        xi.        Housing                                  655,050.04 

                        xii.       Travelling                               179,400.78 

                        xiii.       Variable                                   86,168.01 

14. Performance Benefits                      126,839.47 
15. Basic                                         3,465.87 

xxviii. Leave     8,040.83

                                    TOTAL                                  1,109.356.06

 Claimant 17

(17) Esoro Obinna Patrick 

1. Furniture                                139,596.78 
2. Housing                                  740,218.84 
3. Travelling                                48,017.26 
4. Variable                                  144,384.82 
5. Performance Benefits                      103,574.22 
6. Leave                                        3,004.96 
7. NBN                                         10,361.95

 TOTAL 1,044.774.01

 Claimant 18

            (18) Ezeoti Maureen Obiageli

1. Furniture                               204,910.98 
2. Housing                                  644,225.96 
3. Travelling                               140,206.12 
4. Variable                                  197,545.42 

v.         Performance Benefits                       71,595.08 

vi.        Leave     8,774.23

                                    TOTAL                                     l, 267, 257.79

Claimant 19 

(19) Unegbu Chike George

                        i.          Furniture                                 81,940.38 

                        ii.         Housing                                  844,494.61 

                        iii.        Travelling                               281,656.60 

                        iv.        Variable                                   55,576.31 

                        v.        Performance Benefits                       69,316.35 

                        vi.        Leave                                       26,010.65

                                    TOTAL                       1,358,994.90

That upon the termination of the 1^st and 2^nd claimants’ employment, the Defendant deducted from their severance pay the purchase price of their Status Vehicles as follows: 

That the above deductions are far and above the 10% Net Book Value (NBV) of the Status Vehicles assigned to them in breach of the Defendant's Policies and Procedure Guide (PPPG) paragraph 7.20.3 (c), page 55 under Ex-Gratia which provides for the treatment of NBV of Status Car for employees who have a minimum of 10 years unbroken service thus:

That the 1^st and 2^nd Claimants' Colleagues who exited from the Defendant’s employment were allowed to pay 10% of the Net Book Value (NBV) of the status car allotted to them for less than 2 years and the Net Book Value (NBV) of Status Cars with over two years written off pursuant paragraph 7.20.3 page 55 of the PPPG (2015 Edition); that while in the employment of the Defendant, the 1^st & 2^nd Claimants were granted share loans by the Defendant bank to purchase the Defendant's Bank Shares as follows: 

That upon the 1^st, 2^nd & 10^th Claimants' retirement and forced resignation, the Defendant wrote them letters of demand for the repayment of outstanding loans which resulted from deductions shown on their Exit Statements; that the Defendant deducted various sums tagged Personal loan I, Personal loan II, from the 10^th Claimant's terminal pay without availing him the Statements of Accounts to determine the veracity of the alleged debt as shown below: 

That the said loans taken were repayable from the 1^st, 2^nd & 10^th Claimants' monthly salaries pursuant to the Defendant's Bank policies and Procedure Guide (PPPG) Version 2.8 paragraph 7.2, page 35 which provides under sub-paragraph D as follows: 

"It is important to note that loans are granted only at the discretion of the Bank and performance related. Unconfirmed staffs are not entitled to loans. Another basic criterion governing the granting of a loan is the individual's capacity to repay his/her debt from his/her salary. Monthly deductions from salary for repayment of all loans must not exceed 33.3% of the staff's monthly emoluments. The only exception to this rule is the Rent Advance Loan and Mortgage Loan. 

That the Defendant did not avail the 1^st, 2^nd and 10^th Claimants the Statement of Account to ascertain the veracity of the purported outstanding loans deducted from their terminal benefits in breach of CBN Monetary Policy Circular No. 42 which provides under paragraph e Page 18 as follows:

A statement account shall be rendered promptly, to each account holder, minimally, on a monthly basis free of charge and shall include: 

That the Defendant continue to harass and threaten the 1^st & 2^nd Claimants who were availed Mortgage loans with demand for repayment of the said Mortgage loans after deduction of the outstanding loan balances from their severance pay as shown in the End of Service Statement for the 1^st and 2^nd Claimants, thus: 

That the deduction of the unproven Mortgage loans in full from the 1^st & 2^nd Claimant’s terminal benefits violate the Defendant's Policies and Procedure Guide (PPPG) Version 2.8 paragraph 7.20.3C ii page 55 which provides: 

Mortgage loans will be rescheduled over the remaining tenure following exit of staff member rate for three years then commercial rate. 

That the 1^st & 2^nd Claimants shall contend that the deductions of already earned income and unproven loans which source of repayment is from their monthly income violates Article 8 of the ILO Protection of Wages Convention 95, 1949, which states that: 

1. Deduction from wages shall be permitted only under conditions and to the extent prescribed by national loans or regulations or fixed by Collective Agreement or Arbitration award, 

2.         Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions maybe made.

In their Reply to the Defendant’s Statement of Defence, the claimants stated that the suit as presently constituted is competent and that they have the powers to bring the action in a representative capacity; that though they joined the employment of the Defendant at different times, their conditions of service is regulated by the Defendant's Employee's Handbook, Personnel Policies and Procedure Guide PPPG (2.8 Version), Defendant's Policy Circulars and Employment letters; that though Mr. Obinna Patrick Esoro was employed by Fidelity Union Securities Limited on 23^rd June, 2004, his employment was never broken upon transfer of his service to Fidelity Union Merchant Bank Ltd (Now Fidelity Bank Plc) and that he was never an outsourced staff; that the said policy on deduction of already earned income among others is only to the knowledge of the Defendant and that the Policy and Procedure Guide in operation at the time of their exit was Version 2.8 reviewed in December, 2015; that they were never informed of any change in the operative Personal Policies and Procedure Guide (PPPG) (Version 2.8) and that their claims are not malicious, frivolous nor amount to gold digging and urge the Honourable Court to grant their reliefs in this suit. 

During trial, the claimants’ 1^st witness, Nwangwu Augustine Ozoemenam adopted his written statement on oath and under cross examination by the defendant’s counsel, CW1 stated that at least 70% of the claimants are resident in Nigeria; CW confirmed that by the time he had left the defendant, the 2^nd, 3^rd, 6^th, 7^th, 9^th, 14^th, 16^th, 17^th, and 18^th claimants were still in the employment of the defendant and that he may not know how they left the defendant but they have the same challenges; that the defendant has the right to demand the money he owed the defendant. 

There was no Re-examination of CW1 by the claimant’s counsel, CW was thereby discharged.

The claimants’ 2^nd witness, Asomba Uzonna George adopted his written statement on oath and under cross examination by the defendant’s counsel, CW2 stated that all the parties he is representing herein cut across all the defendant’s branches; that the defendant disseminate internal memo via general email to all staff; that he does not have a letter of authority from the 19 persons he is representing in the instant case; that he resigned from the defendant in May, 2018; that the PPG is a contract between the two parties and the bank cannot solely change it without recourse to the other party; that the retention period of exhibit 5 is Bi-annual and that it dies not lapse after it is reviewed; that he did not state how the claimants were forced to resign in his evidence. 

There was no Re-Examination of CW2 by the claimant’s counsel. The claimants thereafter closed their case. 

The defendant opened its defence by calling its sole witness, Agwu Okorie, the Team Lead, Work Place Ethics of the defendant, wherein he adopted his witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that the claimants at various time joined the employment of the defendant on different conditions of service and terms and at different times retired, exited by redundancy or resigned their employment with the defendant notwithstanding the various heading they termed their letters. That some of the claimants were not their staff from inception having been employed by Fidelity Union Securities Limited. However, upon engagement of the claimant by Fidelity Union Securities Limited the said Obinna Patrick was seconded to Fidelity Union Merchant bank Limited (now Fidelity Bank Plc) as an outsourced staff where he was working until he resigned; that the claimants duly resigned their employment with the defendant and were never forced by the defendant to resign their employment. 

That upon resignation of their employments, each claimant's severance benefit was computed and paid to him/her and or applied to liquidation of any financial exposure of loan from the defendant and that the defendant is not indebted to the claimants either as a whole or individually; that notwithstanding the computation of the claimants' end of year financial statement, some of the claimants are still indebted to the defendant in the total sum of N55,873,368.01 (Fifty-Five Million, Eight Hundred and Seventy-Three Thousand, Three Hundred and Sixty Eight Naira, One kobo) and that by the policies of the defendant, whenever a staff resigns and or leaves the employment of the defendant under whatever circumstances, such staff is required to pay down all sums of money, either loan, unearned allowances or overdraft, standing against him or her; that the issues complained of by the claimants took place within the years 2017, 2018 and 2019; therefore, the defendant's Personnel Policies Procedure Guide (PPPG) that guided the employment of some of the claimants were the ones revised for 2016, 2017 and 2018 as the reviews are made each year. 

That whenever the changes in the Defendant's Personnel Policies were made, such reviews or changes are duly communicated to the claimants and the claimant never opposed and or raised any objection to the changes and are therefore estopped from raising any objection now to the changes made in the PPPG as they are no more in the employment of the defendant; that the claimant's claims are malicious, frivolous, amounts to gold-­digging and should be dismissed with substantial cost. 

Under cross examination by the claimants’ counsel, DW stated that he has worked with the defendant for 7years; that he cannot remember if the defendant has the claimants loan statement of account before the honourable court. 

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

The parties were directed to file their final written addresses. The defendant’s final written address is dated and filed 10^th June, 2024 while the claimant’s final written address is dated and filed 3^rd October, 2024. 

Learned counsel on behalf of the defendant formulated four (4) issues for the court’s determination viz:

On issue one (1); the defendant’s counsel submitted that it is trite law that for a representative action to suffice, the cause of action must relate to all the parties to the effect that whatever resolution or decision reached must bind those represented; that by the provisions of Order 13 Rules 11 (5) (a & b) of the Rules of the honourable court, for a representative action to suffice, the parties or class being represented must :

That the claimants’ witness has not succeeded in proving that the claimants have common grievances; that the claimants leaving the employment of the defendant was not as a result of the defendant's fiat or by a policy that affected the claimants, therefore, the same circumstances do not apply to the claimants and the matter cannot be fought on representative capacity since each of the claimants does not need the same set of facts to sustain their respective claims. The claims of some of the claimants are at variance with some other claimants. It is therefore obvious that the claimants herein do not have common grievances and one set of facts do not apply to all of them. That a community reading of the claimants' pleadings in paragraphs 8, 9, 10, 11 and 12 reveal that they were offered employment at different times, their entry and exit dates were different, they individually signed contract of service with the defendant and these contracts of service were regulated by different terms applicable to whatever category they find themselves; that the 1^st and 18^th claimants' employment were terminated on ground of services no longer required and the other claimants resigned their employments individually at different dates by tendering their separate resignation letters; that the 1^st claimant who is the star witness under cross examination testified that by the time he left the defendant's employment, the 2^nd, 3^rd, 6^th, 16^th, 17^th, and 18^th were still in the employment of the defendant and also stated also that the 4^th, 5^th, 9^th, 11^th, 12^th and 19^th left the employment of the bank before him. 

That from the testimony of the claimants' witnesses, the parties herein cannot be representing those who left the employment of the defendant before him and or after him. Even those he claimed to be representing, there is nothing to show a nexus or authority that he is representing them as there are no instructions from them and that the claimants herein are claiming among other reliefs, for injunctive reliefs and represents a group that are not easily ascertainable or conveniently found and thus require leave of the honourable court to maintain the action on a representative capacity. He urged the honourable court to hold that the instant suit is not fought on representative capacity.

Continuing, counsel submitted that if the honourable court so holds, it means that the 2^nd, 3^rd, 4^th, 6^th, 7^th, 8^th, 9^th 10^th, 12th, 13th, 14th, 15^th, 16^th, 17^th, 18^th, and 19^th claimants are individual parties against the defendant and should testify to prove their claims against the defendant. Therefore, that having not given evidence in proof of their case, the case of the said claimants should be dismissed for failure to give evidence in proof of the same and that the evidence adduced on their behalf is a hearsay which is contrary to Section 37 of the Evidence Act, 2011. Also, the matter should fail for lack of capacity of the 1^st and 11^th claimant to testify on behalf of other claimants.  He cited the case of JAMB vs. Orji (2008) 2 NWLR (Pt 1072) 552.

On issue two (2); counsel argued that that gratuitous payment and Voluntary Retirement policies of the defendant has been abolished at the time the claimant left the employment of the defendant; therefore, the claimants could not and would not have voluntarily retired; consequently, not entitled to any financial benefit on any of the grounds; that though the claimants filed a Reply to the statement of defence denying receiving exhibit 27, nevertheless, they could not rebut the fact that the operative PPPG when the claimants resigned from the employment of the defendant was version 3.1. The claimants acknowledged the existence of version 3.1 PPPG but maintain that version 2.8 still applies to them. That the onus of proving that it was version 2.8 and not 3.2 that applies to them lies on the claimants. He referred the honourable court to Section 133(1) of Evidence Act 2011, cited the case of Chukwuma Francis Ibezim vs. Asomugha Tony Elebeke & 3 Ors (2011) 4NWLR Pt 1819, pg. 1 41 and urged the honourable court to hold that it was version 3.1 of PPPG that was applicable to the employment of the claimants when they resigned from the employment of the defendant in 2017, 2018 and 2019 respectively.

On issue three (3); counsel submitted that the PPPG version 3.1 has no provision for voluntary retirement but has provision for resignation and other means of disengagement from employment; Therefore, to sustain this action and establish being entitled to any other financial benefit aside as was given to them, the claimants have to show that they fulfilled all the conditions as contained in the applicable defendant's PPPG and that the claimants has fallen short of any provision of the said PPPG Version 3.1; that throughout the gamut of the evidence of the claimant, there was no evidence as the nature of force applied and how applied to their resignation from employment; that it is trite law that facts relating to the alleged force must be specifically pleaded and proved. Nevertheless, since the claimants did not so plead and lead evidence on it, the same is deemed abandoned. He cited the case of Edilco Nig. Ltd vs. United Bank for Africa, (2001) 2 NWLR Pt 698, pg. 492 @ 511 and urged the honourable court to hold that the claimants resigned their appointment with the defendant and that puts end to the employment. However, where the honourable court is so inclined as to hold otherwise and entertain this matter further, the defendant’s counsel submitted that under the contract of employment, where a claimant asserts that he was wrongfully disengaged from his employment by the defendant, it is for such claimant to prove same. Therefore, it is for the claimants to show by credible evidence that their disengagement from the service of the defendant was by any other means aside resignation that would entitle them to any other benefit. He referred the honourable court to Section 131 Evidence Act and cited the case of Alhaji Audu Maigoro vs. Alhaji Mohammed Bashir & 2 Ors (2000) 11 NWLR Pt 679 pg. 453 @ 464.

On the claimants’ reference to certain Article 7 of the ILO Convention 158 contending that the defendant was in breach of those articles and conventions by their action, counsel enjoined the honourable court to jettison all reference to any international protocol on labour as the claimants have not shown that the protocols have been domesticated. He cited the case of Abacha vs. Fawehinmi (2000) 6NWLR Pt 660, pg. 288. 

On issue four (4); counsel submitted that declarative reliefs are made upon establishment of the state of affairs necessitating the declarations and that the claimants having not shown how they are entitled to any of the declarative reliefs sought, the reliefs ought to be dismissed by the honourable court; that the claimants’ reliefs 9, 10, 12, and 17, for an order payment on status car and payment of compensation ought to be discountenanced as the defendant has calculated and paid the claimants End of Year Service and that no facts were placed before the honourable court, nor evidence led that the claimants' employment were wrongfully terminated and or the claimants were wrongfully dismissed.

 Learned counsel on behalf of the claimant formulated Two (2) issues for the determination 

1. Refund of the value of the NBV of status cars allotted to the 1^st and 2^nd Claimants; 
2. Refund of deducted already earned benefit; 
3. Refund of loans Deducted. 

Before delving into the above formulated issues by the claimants’ counsel, the claimants’ counsel raised a preliminary issue against the defendant’s contention that the claimants do not have a common interest and that the suit cannot be fought in a representative capacity by submitting that the Defendant had initially on 2/11/2020 filed a preliminary Objection to the institution of the instant suit in a representative capacity, wherein the Claimants filed their Counter Affidavit and written Address in opposition to the Preliminary Objection and that the motion was heard by the honourable court on 02/02/2021 and same was dismissed by the honourable court who held that the Claimants have a common interest. He urged the honourable court to discontinuance the argument of the Defendant which is ill concerned.

On issue one (1); the claimants’ counsel submitted that it is pertinent at this juncture to analyze the letters of resignation and the end of service statement in the underline table   

That the above analysis clearly show that the resignation of the 3^rd, 5^th, 6^th, 7^th, 8^th, 9^th, 12^th, 13^th,15^th and 18^th Claimants were not voluntary and thus amounted to constructive dismissal and that it violates their contracts of employment. He urged the honourable court to so hold.

On the defendant’s argument on the treaties, counsel submitted that the case of Abacha v. Fawehinmi (2000) 6 NWLR PT 660, 288 has no effect whatsoever in the application of international Labour Conventions and best practices as, at today because the Third Alteration Act 2010 which amended the 1999 constitution.: provides under section 245 (c) that the section shall have supremacy over any; that the Provisions of the 1999 constitution with the opening word: "Notwithstanding" is meant to exclude on implying and impeding effect of any other Provisions of the statute or subordinate legislation so that the said section may fulfill itself.

It is the claimant’s counsel submission on issue two (2) in respect of Refund of the value of the status cars allotted to the 1^st & 2^nd Claimants that going by the evidence led before the honourable court, it is clear that the 1^st and 2^nd claimants having worked for over 10 years in the defendant’s employment are entitled to the ex-gratia benefit which have been extended to their colleagues.

On the refund of deducted already earned benefit; counsel submitted that the deduction of already earned incomes violates Article 8(1) of the ILO Protection of wages Convention 95 which provides that: “Deductions from wages shall be permitted only under conditions and to the extent prescribed by National laws or regulations or fixed by collective Agreement or Arbitrary Award.

On the deduction of Loans from Terminal Benefits; counsel urged the honourable court to take judicial notice of the CBN Monetary Policy Circular, a subsidiary Legislation made by the CBN pursuant to the Central Bank of Nigeria Act, which was not controverted by the defendant in granting the claims of the claimant as sought. 

I have carefully considered the processes filed by the parties, the evidence of the witnesses, written submissions and authorities cited. The issue for determination is: 

Whether on the pleadings and evidence, the claimants ought to be entitled to the reliefs they are seeking.

The law is settled that he who asserts must prove. The burden and standard of prove required in civil case are stated in Sections 133 of the Act which read

In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

The provisions of the Evidence Act stated above have been considered in a long line of cases, See Igbeke v Emordi (2010) 11 NWLR Pt 1204 page 1 at 48 -49, Hamza v Kure (2010) 10 NWLR Pt 1203 page 630 at 649. Applying the above provisions of the Evidence Act to this case, it is necessary to consider each leg of the claim separately. While the claimants are claiming for eighteen (18) reliefs (consisting of Declarations and Orders) against the defendant, the defendant assert that the claimants are not entitled to any of the reliefs as the claimants resigned appropriately, while the 1^st claimant retired when he was due for retirement. In this case, the claimants are contesting the resignation of their employment as not only being unlawful and wrongful but also amount to constructive dismissal, the deduction of the market value of the status vehicle cars allotted to the 1^st and 2^nd claimants, refund of deductions of earned income and that the deduction of mortgage loans to the 1^st and 2^nd claimants violates the defendant’s policies and procedure guide (PPPG). The defence of the defendant is that the claimant’s severance benefit was computed and paid to him/ her and moreover the defendant is not indebted to the claimants. 

Before I proceed further, it is necessary to resolve the issues raised by the defendant that the claimants were employed at different times as shown in their letters of employment, occupied different positions in the defendant’s bank, the claimants did not retire but all resigned and this raises the issue of whether this matter can be determined in a representative capacity as indicated on the face of the court processes.  The defendant raised same issue in its preliminary objection filed before this court dated and filed on the 14^th of October 2020 wherein the relief was for ‘’ an order of this Honorable court striking out this suit for want of capacity of the claimants to institute and maintain this action in a representative capacity.  The court delivered a Ruling on February 2^nd 2021 and dismissed the preliminary objection.  With the ruling delivered on the 2^nd February 2021, the same issues have long been settled, issues that only the Appellate process can resolve.  Instead of awaiting the decision of the appellate court (though there is no evidence that the Ruling was appealed) the defendant decided to raise the issue once more. For the defendant to raise such issue again is bad example of advocacy as the defendant cannot re -litigate that issue once a judicial pronouncement on it has been made.  On duty of court not to encourage the relitigating of an issue that has been decided by a competent court, the Apex court in Ntoe Patrick Edem & Ors v Prince Eyo Ishie held thus 

It is a cardinal principle of public policy that it should not encourage the re-litigation of an issue that has been decided by a competent court between the same parties in respect of the same matter, or cause or an issue in the course of previous proceedings. See Ito & Ors v Ekpe & Ors (supra).

This said, I shall now proceed with the merit of the case of the claimants. The arguments of the claimants is that they were employed by the defendant and were forced to resign without payment of their entitlements, that the 1^st and 2^nd claimants’ employment were terminated and the deduction of the market value of the status vehicles allotted to the 1^st and 2^nd claimants is unlawful. The claimants stated in their statement on oath that except for the 1^st and 18^th claimants, the other claimants were forced to resign and is not in accord with international best practice; that the acts of the defendant in forcing the claimants to resign their employment amounts to constructive dismissal and unfair labor practice. The claimants’ further submission is that the 17^th claimant’s employment terminated for services no longer required is unknown to his contract of employment. The issues raised by the defendant is that some of the staff were not their staff from inception having been employed by Fidelity Union Securities, some exited by retirement, some by redundancy or resigned their employment. That above it all, upon resignation of their employments, each claimant’s severance benefit was computed and paid to him/her as applied to liquidation of any financial exposure or loan to the defendant.

It is in the light of these; it will be necessary to consider how each of the claimant exited the defendant company.  In proof of this case the claimants tendered letters of employment (exhibits NO 1a-r), Re -Resignation of appointment of the claimants (exhibits NO 2(a-n), End of service statement as at exit date (exhibits NO3(a- v),  Employee handbook (Personnel Policies and Procedure Guide (PPPG) version 2.8 (exhibit NO 5 ), Resignation letter of Angela Onyekwelu (exhibits NO 6 (a-m), Annual report (exhibit NO7), Central Bank Monetary Credit Policy (exhibit NO9). The defendant tendered Retirement of Nwangwu Augustine (exhibit NO  9), Email (exhibit NO10), Re -Termination of Contract of Employment of Isibor Ojikhere (exhibit NO11), Notice of resignation of Funso Babafemi (exhibit NO12), Resignation Letter of Adepeju Stella Oke (exhibit NO13), Resignation of appointment of Tosin Olayinka (exhibit NO14,) Resignation of Appointment of Aguh  (exhibit NO 15),  Letter of Resignation – Mustapha Subairu (exhibit NO16),  Resignation of Employment of George Asomba (exhibit  NO17),  Letter of Resignation  - Anaenyieonu (exhibit NO18), Resignation of Appointment of Kaodili J. Okoh (exhibit NO19), Letter of Resignation of Alayode Ajala (exhibit NO20), Resignation of Appointment of Ajetumobi Olarewaju (exhibit NO21), Notice of Resignation of Olarewaju Olayera  (exhibit NO22), Resignation  Esoro Obinna   (exhibit  NO23), Resignation letter of Maureen Ezeoti (exhibit NO24),   Services no longer required (exhibit NO25), Letter of employment of Obinna Esoro (exhibit NO26), Personnel Policies and procedure Guide PPPG) version 3.1. (exhibit NO27). 

The claimants’ employment with the defendant is regulated by the defendant’s staff handbook, Personnel policies and Procedure Guide (PPPG). The court notes that Angela Onyekwulu is not a party in this suit. The claimant averred in paragraph 11 of the statement of fact that the 1^st claimant Nwangwu Ozoemenam was retired and the defendant terminated the employment of the 18^th claimant (Ezeoti Obiageli) for services no longer required and forced the other claimants to resign their employment. It becomes pertinent to look at the letters of termination of each claimant to enable the court determine if the claimants that resigned were forced to do so. The first claimant (Nwagwu Ozoemenam) exited the defendant company as MGR 1 by exhibit NO 9 and part of the letter is reproduced below

‘Dear Augustine 

ACHIEVEMENT OF RETIREMENT AGE FOR NWANGWU OZOEMENA AUGUSTINE 

 This is to confirm that you will attain the retirement age of 55 years in Fidelity bank Plc. on the 22^nd day of August 2018. 

The claimant in paragraph 14 of the statement of fact averred ‘’ That the 2^nd – 19^th claimant avers that the termination of their employment and forced resignation without prior query and warning is a breach of their contract of employment, the defendant handbook and the PPPG and referred to paragraph 5.2.1.  The claimant did not tender each claimant’s letter of resignation but same was tendered by the defendant.  Now a look at each calamint’s resignation letter (2^nd -19^th claimant) reveal that each claimant resigned his/her employment individually save for 19^th claimant who was terminated for services no longer required. The defendant responded to the letters of resignation in exhibit NO  2 (a-n) of NO 2, 3, 4, 5, 6, 8, 9, 12, 13, 15, 17, 16). There is no letter of resignation for the 2^nd claimant, the 3^rd claimant tendered his termination of contract employment (exhibit NO 11), the 6^th claimant tendered his resignation letter (exhibit NO12), 7^th claimant (exhibit NO13), 8^th claimant (exhibit NO14), 19^th claimant (exhibit NO 15), 11^th claimant (exhibit NO 17), 13^th claimant (exhibit NO19), 14^th claimant (exhibit NO20), 15^th claimant (exhibit NO21), 16^th claimant (exhibit NO 22), 17^th claimant (exhibit NO 23), 18^th claimant (exhibit NO 24)  while 19^th claimant  (exhibit NO 25) is for services no longer required. 

On whether resignation from employment must be accepted by employer to have efficacy and it was held in Adefemi v Abegunde (2004) 15 NWLR (Pt 895) 1 CA that resignation takes effect from the date notice is received. There is absolute power to resign and no discretion to refuse to accept the notice.  I have looked at the resignation letters tendered by the claimant and nowhere did any of the calamints state that he /she was forced to resign. In the case of the 3^rd claimant by exhibit NO11 wrote to the HR that his letter of termination of contract be converted be resignation. While claimant (exhibit NO15) gave reason for his resignation as ‘’ This decision is borne out of my desire to proceed to seek more knowledge toward development ‘’ and same for 17^th claimant who stated that he was out of country. The defendant responded to the letter of resignation.  Below is part of the letter of resignation of claimant NO6 

I will like to use this medium to notify the bank of my decision to resign my employment from the organization with effect from Thursday 6^th of September 2018. 

 The defendant responded to the letter on October 31 2018 and below is part of the letter 

 RE -RESIGNATION OF APPOINTMENT 

Sequel to your exit from Fidelity Bank Plc -effective August 30, 2018. please find attached breakdown of your end-of – service.

The law is settled that a court has no competence to determine an issue beyond the scope of what was put in issue by the parties in their pleadings. See Buhari v Obasanjo (2005) 13 NWLR Pt 941 page 1 at 256 (G-H). In paragraph 12 of the statement of fact, the claimants averred that 

The claimants except the 1^st and 18^th claimants aver that they were forced by the defendant to resign their employment.

The defendant’s response is denial as the defendant accepted the letter of resignation as it cannot compel the claimant to remain in its employment and highlighted the contents of the claimant’s letter to show he voluntarily left the defendant’s employment.  The law is that he who avers must prove. See Amodu v Amode (1990) 5 NWLR (Pt 150) 356. Proof of those material facts is a pre-condition to the success of this claim as a contract of service is the bedrock upon which an aggrieved employee can predicate his claim.   He succeeds or fails on the terms and conditions.  There is no doubt that the claimant has the onerous duty of establishing his claim before the court, while the defendant in the absence of a counterclaim has no duty to answer more than what was pleaded. The onus of proof was succinctly stated in Owoniboys Tech Services Ltd v UBN (2003) LPELR -28529 (SC).

Now on the forced resignation, the claimants stated that they were ordered to resign their employment without more. This is what the claimants in their pleadings referred to as coercion to resign. The defendant did not admit as this to it is a mere letter that would ordinarily be termed termination of employment but the defendant’s submission is that the letter of resignation is at the behest of the claimant’s whose intention to leave the services of the defendant was voluntarily, so the claimant’s submission that he was coerced to resign betrays the claimant’s false allegations that his resignation was forced. The claimant’s assessments of the letter of resignation to bring the contract employment to an end is constructive dismissal. On the accepted general legal principles, resignation from employment is by giving the required length of notice or payment in lieu of notice, See Zubairu & Anor v Mohammed & Ors (2009) LPELR -5124 (CA). In exhibits NO 6, 7, 8, 9, 11, 13, 14, 15, 16, and 18 (letter of resignation by the claimants), no mandatory one-month salary in lieu of notice was given by any of the claimant as they resigned without notice.  This is the reason the claimants view the resignation as forced. 

The law is that where the defendant gives specific instruction for an employee to tender his letter of resignation, such is termed as constructive dismissal. In the instant case, there is no evidence that the employer advised the employee to resign and in so doing did not refer to the notice required to be given by each party. The claimants’ contention in this regard is that the claimants did not give one month notice and the defendant equally did not ask for salary in lieu of notice as the resignation is to take immediate effect. None of the claimants gave the requisite notice before putting in the letter of resignation. That the 3^rd, 4,5,6,7,9,12,13,15,18, and 19^th claimants resigned immediately without the requisite notice violates their contracts of employment and is wrongful.  Where the employee’s resignation is found not to be voluntary, it means the voluntary resignation in effect is termination. In the instant case, the claimants’ resignation is not due to the antagonistic, harsh and hostile conduct. Constructive dismissal is when an employee resigns because their employers’ actions or conduct have made the workplace so intolerable that they have no reasonable notice than to leave. What the claimants wants the court to do is to infer from the defendant’s attitude as there is no demand from the claimants as the mandatory notice was not given. The law is that an employee can claim that his resignation is tantamount to constructive dismissal if the employer has seriously breached their employment contract. I find and hold that the resignation of the 3^rd, 4,5,6,7,9,12,13,15,18, and 19^th claimants does not amount to constructive dismissal. 

The 1^st claimant’s termination was by a letter of retirement. The claimants’ counsel submission in paragraph 4.03 of the final address admitted that the 1^st claimant retired according to his contract of employment.   While the claimants’ counsel has itemized the way each claimant exited the company, there is nothing to show the last day in the office. The 2^nd defendant was declared redundant during the period of a subsisting leave, while there is response to the exit letter by the 2^nd claimant, there is no letter before the court showing how he exited the defendant’s company so cannot make a finding. The 19^th claimant was terminated for services no longer required. Exhibit NO 25 is for services no longer required and the letter from the defendant reads ‘’ kindly note that in line with the banks policy, your one-month basic salary in lieu of notice will be credited to your salary account. Accordingly, relief 1 fails and is dismissed.

The next issue to be determined is which of the personal polices and procedure guide (PPPG) regulates the employment relationship between the parties.  The claimants tendered PPPG version 2.8 which is exhibit NO5 created in 2010 and last reviewed in 2015, the retention period being biannual. The defendant tendered   PPPG version 3.1 (exhibit NO  27) and reviewed in 2017 with the retention period annually. The contention of the claimants is that the PPPG version 2.8 is the applicable one while the defendant submit that PPPG version 3.1 reviewed in 2017 is the applicable one.  The argument of the defendant is whether as at 2017, 2018 and 2019 still has gratuity and voluntary retirement policy is the applicable to staff who has not attained 55 years of age.  The claimants on their parts submit that if the defendant agree that the claimants knew of version PPPG version 3.1 but decided to stick to PPPG version 2.8 amount to inversion of fact. In determining where two conditions of service exist on which one governs employment the court in E.C.W.A v Dele (2004) 10 FWLR (pt 230) 297 held 

where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination of appointment.

To hold that it is the one applicable at the time of appointment will mean that if the amended one introduces benefits such as improved conditions of service, which ought to be the case, the employee who was employed before it comes into effect will not take benefit of the same.  On the contention of the defendant’s that the sequence of review is as stated and urged the court to accept the 2017 PPPG, manual as a mail was sent and same acknowledged by the claimants. The defendant in final Written Address submit that the claimants acknowledged the existence of version 3.1 PPPG but maintain that 2.8 still applies to them and the CW1 under cross examination testified that the retention period of the PPPG is bi annual, while CW2  to the question ‘’ on the 24^th of December 2014, 23^rd of Dec 2016 the bank’s management issued internal memo to all staff to intimate them of the stoppage of Gratuity and Retirement benefit, did you receive the memo and he responded ‘’ I received the memo but did not know the content as I saw the title‘’  CW2 further testified that he is not aware that the PPPG is subject to change and the defendant cannot change it arbitrarily since it is between two parties and that the retention period is Biannual. The 2^nd witness confirmed that staff receive information through their personal computers and that he received the information as to the cessation of voluntary retirement and concluded that the onus of proving that version 2.8 is applicable to the claimants lies on the claimant.  The claimant did not respond to this submission in their Final Written Address. The claimants are aware of the PPPG 3.1 and since CW2 testified that is Biannual, it follows that PPPG version 2.8 reviewed in December 2015 is not applicable as the next renewal date will be in two (2) years.  My finding and holding is that the PPPG version 3.1 exhibit NO27 is the applicable document that regulates the relationship of the parties. 

Relief 2 is for a declaration that the termination of the employment of the 17^th claimant for services no longer required is unknown to the contract of employment, the handbook and policies and procedure guide. The response to the termination letter is before the court dated April 12 2019.  First, the resignation letter of the 17^th claimant is reproduced below which is handwritten by the claimant.

RESIGNATION OF APPOINTMENT 

Good day sir, 

Due to circumstances bothering on health condition of my child and the peculiarity of her situation, I Obinna Esoro Patrick P2505 of the account reconciliation department hereby wishes to tender my letter of resignation from the bank effective immediately 02/11/2018 

 The treatment and logistics involved are lengthy with associated activities, as such I cannot return to Nigeria soon as I am presently in the United States of America.

This is the letter of resignation in the 17^TH claimant’s handwriting and he stated that he was in the USA. The claimants’ counsel in relief 2 is asking for declaration that termination of the 17^th claimant’s (Esoro Obinna Patrick) is unknown to law. The claimant’s employment was not terminated but he voluntarily resigned and is even resident outside the country. The court in Matthew Iwuoha v Mobil Producing Nig Unltd (2011) LPELR -44779 CA) held on whether the court must confine itself to the letter terminating employment of an employee and held thus

Learned counsel for the respondent submitted that the lower court was right when it held that in considering the issue whether the termination of the appointment of the appellant was right may have been behind the termination. This represents the correct position of the law. it is settled that where no other reason is stated for the termination of the Appellant appointment except that the Appellant services ‘’ were no longer required ‘’ the court will not go outside it to look for other reasons for the termination. See Chukwuma v Shell Petroleum Dev. Co Ltd (1993) 4 NWLR (pt 289) 512. CBN v Amika (2000) 13 NWLR (Pt 683) 21: Katto v CBN (supra) at page 408 where Belgore JSC (as he then was) in dealing with a similar situation as in the instant appeal stated ‘’ the letter of termination of the respondent’s appointment simply stated that his service were no longer needed and he was advised to collect his one month’s salary in lieu as provided in clause 2 of exhibit 7( staff manual ). The staff manual is the document regulating the contract of employment of the plaintiff with the defendant and clause 2 thereof in the binding clause. The letter of termination never averted to any fraud, misconduct or dishonesty and the respondent cannot read this into his termination letter what is not contained therein.

There is a letter from the defendant dated November 2018 to Esoro Patrick Obinna and part is reproduced below:

RE: ACCEPTANCE OF RESIGNATION 

Following your resignation letter dated 2^nd November 2018, we wish to inform you that the bank has accepted your resignation 

There are two (2) letters, the 1^st being the Re-acceptance of resignation while the 2^nd letter dated April 12 2019 is on the end of service statement. There is no letter to show that the claimant’s employment was terminated.  The relief fails and is dismissed.

The next relief is for declaration that the deductions of already unearned income and loans which are leave, education, housing and lunch allowances of the claimants’ severance payment is wrongful and violates ILO convention 95. The averment by the claimants in paragraph 18 of the statement of facts outlined the deductions of already earned income of all the claimants, that the defendant upon termination of the 1^st and 2^nd claimant, deducted from their severance pay the purchase price of status car allotted to them. That the defendant granted share loans to the 1^st claimant Nwangwu Augustine – N2, 008, 527.07 and 2^nd claimant Uwaohiri Onyema – N 2, 562, 345.69. That their colleagues who exited from the defendant’s employment were allowed to pay 10% of the net book value pursuant to paragraph 7.20,3 page 55 of the PPPG (2015) edition. Under cross examination to the question the claimant answered in the following words

Were you owing the bank?

Answer: yes 

The defendant has shared ownership scheme which entitles staff to purchase shares with the defendant?

Answer: yes

Were you granted loans?

Answer: yes 

And when you were about to leave, you were still indebted to the defendant on that loan?

Answer    Yes 

CW1 also testified that the 2^nd claimant is indebted to the defendant.   The claimant under cross examination testified that earned income means money paid to him and later taken. I have looked closely at exhibit NO3a-v, the 1^st claimant end of service statement as at exit date and amount due after share loan deduction is N28, 166, 610. 37. what the claimant has exhibited in paragraph 18 of the statement of fact is N3, 380,929.51. The claimant has not told the court how he came about N3, 380, 929.51 as he picked some of the allowances. The claimant in the last column amount due from you after share loan deduction is N26, 166, 610.37 and he signed thus:

I Nwangwu Augustine Ozoemenem agree to the above as my final Indebtedness, and he appended his signature.

Having admitted these figures as his indebtedness to the defendant, the court cannot resort to find different figure from what is before the court as the law remains that what has been admitted need no further proof. For the 2^nd claimant, the amount due after share loan deduction is N13, 146, 714,34. I do not know how these is earned allowances as housing shows 2,056, 863. The claimants have a duty to tell the court how they arrived at the different figures in paragraph 18 as the court cannot on its own find the basis of how they arrived at it. This is what runs through the earned allowances as captured in paragraph 18 of the statement of facts, the response of the defendant is as seen in paragraph h of the statement of defense to the effect that whenever a staff resigns and or leaves the employment of the defendant under whatever circumstances such staff is required to pay down all sums, either loan, unearned allowance or overdraft.   The relief fails and is dismissed.

Then next relief is that the granting of loans to the 1^st & 2^nd claimants to purchase the defendant shares is unlawful.  This, they averred in paragraph 21 of the statement of facts. This court has held severally that the allocation of shares of the employer or loan given to an employer is unfair labor practice but such must be raised timeously. While the court sees this as unfair labor practice, the 1^st & 2^nd claimants did not complain about the loan and there is no evidence to show it was done under undue pressure. See Agatha Onuarah v Access bank Plc (2015) 55 NLLR (Pt 186)16.

The next relief is that the deduction of mortgage loan from the terminal benefit and imposition of penalty interest on the mortgage loan granted to the 1^st and 2^nd claimants is unlawful and violates the defendant’s policies and procedure guides. Exhibit NO 27 is the PPPG version 3.1 applicable to the claimants and in clause 7.0 is on general welfare, remuneration and benefits, while clause 7.2. is on loans, 7.4 is on allowances to include Housing allowances, Transport allowance, Lunch Subsidy, Dressing and Furniture allowance Estacode and out of station allowance. In arguing this, the defendant submit that gratuitous payment and voluntary retirement as policies of the defendant have been abolished at the time the claimants left the employment of the defendant, so the claimants could not have been voluntarily retired. The response of the claimants is that the claimants are entitled to all, the benefits as the wrongful deductions include deductions of net book value of status car allotted to 1^st and 2^nd claimants.  The claimant relied on the colleagues who exited from the defendant’s employment and were allowed to pay 10% of the net book value as captured in paragraph 20 of the statement of facts.  This is not proof as the court has not been told or evidence tendered to know when the status cars were given to the 1^st and 2^nd claimants. Reliance on what happened to colleague is not proof. 

On the 1^st and 2^nd and 10^th claimants’ assertion that the defendant did not avail them the statement of account to ascertain the veracity of the purported outstanding loans deducted from their terminal benefit cannot be the true position as all customers are entitled to statement of account when applied for. Is there evidence of application for the statement of accounts by the 1^st, 2^nd and 10^th claimants? the defendant denies same. In paragraph 5.09 of the claimants’ final written address, the claimants relied solely on what the defendant did to other colleagues who are not before the court without enough information and no reason why the court is to rely on what was applied to former disengaged staff of the defendant. In paragraph 5.12, the counsel to the claimant referred to the status car without telling the court the time the car was handed over to the 1^st claimant. As to the 2^nd claimant, based on exhibit NO3a-v, the 2^nd claimant resigned and did not retire so it’s not applicable to him as the mode of service shows that he resigned while the 1^st claimant who retired did not supply the information on when the car was allocated to him for the court to come to a just conclusion.  Same relief has not been proved. 

The next relief is for an order of this court for the refund of the mortgage loan deductions and reversal of penalty interest to the 1& 2^nd claimants. To the 1^st and 2^nd claimants, it is unlawful and violates PPPG paragraph 7.20.3, even when they are aware that the applicable PPPG is the version 3.1 and not 2,8. This is contrary to the condition agreed upon and in consideration of which the defendant provided the loan. See Lewis v United Bank for Africa (2004) LPELR-7404 (CA).

If the 1^st and 2^nd claimants’ contention is that the deduction of unproven mortgage loans in full from their terminal benefits violate the defendant’s policy and procedure. A mortgage loan is given on application and the 1^st and 2^nd claimants’ prayer to stop the repayment cannot be granted. In the face of the above, the claimants are aware of the reversed version 3.1 which does not contain any of the reliefs as to the Mortgage. This court had rejected a similar argument of inability to pay in Mr. Gbolahan Adepoju v Coscharis Group unreported suit no NICN/ LA/ 409/ 2014 judgment was delivered 16^th February 2018 while holding that the contexts of the facts of the case or prevailing law did not support such. Applying Lewis v UBA, the liability of the claimant in respect of the housing loan must be determined within the context of the what both parties agreed to. The claimants cannot be heard to plead terms and conditions outside the written agreements they entered in respect of the loan. The issue is resolved against the claimants. My holding therefore is that the relief for a declaration that the deduction of the mortgage loan is unlawful and for an order for the refund of Mortgage loan deductions already made in view of the mortgage loans interest, and to reschedule the loans repayment fail as parties are bound by the agreement willingly entered into. See Agrovet Sincho Pham Ltd & Anor v Dahiru & 7 Ors (2013) LPELR - 20364 (CA), Hydro Tech (Nig) Ltd & Anor v Leadway Assurance Co Ltd & Ors (2016) LPELR - 40146 (CA).

On whether the court can grant perpetual injunction restraining the defendant bank from harassing and threatening the 1^st and 2^nd claimants for the return of status car, the court cannot gag the employer or grant perpetual injunction as prayed by the 1^st and 2^nd claimants. The relief fails and is dismissed. 

Having considered the entire pleadings and evidence before me, I have no difficulty in coming to the conclusion that there is no evidence that the other claimants were forced to resign.

The entirety of the case of the claimant’s case fail and dismissed accordingly. 

Judgment is entered accordingly. 

HON. JUSTICE A.N. UBAKA

JUDGE