National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

DATED 23^rd JANUARY, 2025 Suit No: NICN/LA/255/2020

BETWEEN

ADEBISI AYOTUNDE OLADEHINDE CLAIMANT

AND

UNION BANK OF NIGERIA DEFENDANT

REPRESENTATION:

Shina Adedeji with Joshua Adeji for the Claimant

Lawrence K. Nweke for the Defendant

JUDGMENT

By a general form of complaint filed on the 3^rd August, 2020 but amended on 2^nd August, 2021, the claimant claimed the following reliefs against the defendant:

1. N6,445,899.26 (Six Million, Four Hundred and Forty-Five Thousand, Eight Hundred and Ninety-Nine Naira, Twenty-Six Kobo) only being the Claimant's entitlement as Assistant Manager who serve the Defendant for over 5 years meritoriously.

2. N12,000,000.00 (Twelve Million Naira Only) being the Claimant's gratuity as Assistant manager who served the Defendant for over 5 years meritoriously.

3. N3,000,000.00 (Three Million Naira Only) as damages for nonpayment of the Claimant's entitlements as promised by the defendant thereby making the claimant's name to enter into a black book of global debtors (CRC CREDIT BUREAU LTD) which portrayed him as a person unworthy of credit anywhere in the world.

4. interest on the above sum at the rate of 25% per annum from January 2019 when his appointment was terminated until the date of judgment and at the rate of 12 ½ % per annum post Judgment.

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated and filed on 2^nd of August 2021.

In reaction, the defendant entered formal appearance and then filed a statement of defence, counter claim, witness written statement on oath (dated and filed 25^th October, 2023) and documents to be relied upon at trial dated and filed 22^nd December, 2020. The defendant/counter claimant counterclaimed as follows:

1. A Declaration that the Defendant to Counter Claim is indebted to the Counter-Claimant in the sum of N2,972,192.61 (Two Million Nine Hundred and Seventy-Two Thousand, One Hundred and Ninety-Two Naira Sixty-One Kobo), being the total outstanding indebtedness of the Defendant to Counter-Claim.

2. An Order of this Honorable Court directing the Claimant/Defendant to counter-claim to immediately liquidate his outstanding indebtedness of N2,972,192.61 (Two Million, Nine Hundred and Seventy Two Thousand, One Hundred and Ninety Two Naira Sixty One Kobo), being the total outstanding balance of the loan facility availed to the Defendant to Counter-Claim in 2015 and interest on the said sum at the rate 14% per annum from the 22^nd February, 2019 to judgment and thereafter at the same rate till the judgment sum is satisfied.

3. The cost of this action as assessed by this honorable court.

The claimant’s Reply to the defendant’s statement of defence and defence to counter claim is dated 8^th April, 2024 but filed on 12^th April, 2024.

The summary of the facts pleaded by the claimant is that he is an ex-staff of Union Bank of Nigeria PLC and the defendant is his former employer; that by a letter dated 13^th January, 2014 he was offered an employment as an Assistant Manager (Chief marketing officer retail) in the Defendant Bank on a cumulative salary of N10,379,100.00 (Ten Million Three Hundred and Seventy-Nine Thousand One Hundred Naira Only), entitled to medical allowance, pension allowance, gratuity and annual leave of 22 working days. That by the said letter of employment he was placed on six months' probation after which his employment will be confirmed subject to satisfactory performance. That his employment was confirmed via letter dated is 19^th October 2015 after a satisfactory performance and achieving 100% set of the targets given to him and that in the said letter of confirmation, his positive contribution to the overall goals of the Bank was acknowledged and was duly congratulated subsequently; that he was doing his work diligently and satisfactorily with the totality of his ability to the extent that the defendant did not allow him to regularly go on leave for some years he spent with the defendant despite repeated demand to go on leave through numerous emails to the defendant. That he is entitled to 22 days per annum as leave but the defendant only allowed him as follows:

a. In 2014 he was not granted any leave, twenty -two (22) days outstanding.

b. In 2015 he was granted leave but was recalled only after 5 days, seventeen (17) days outstanding.

c. In 2016 he was granted leave for 10 days. Twelve (12) days outstanding.

d. In 2017 he was not allowed to go on leave, Twenty-two (22) days outstanding.

e. In 2018 he was not granted any leave and twenty-two (22) days outstanding.

f. His total outstanding leave period is 95 days before I was terminated.

That his fortune in the Bank suffered a downward trend when he came across Mr. Anthony Asonye (Sector Lead for Education and Religious Institution) as his sector lead wherein his persecution was so tense that he did not allow him to go on leave when his mother-in-law died and that the only leave approved to him by his Sector lead was 1-day causal leave for the naming ceremony of his child; that as from that time the assessment of his performance was no longer based on merit but basically a result of enormous persecution hinged on ethnicity, nepotism and hatred for his unionism involvement; that a 5 year loan facility from 2005 to 2020 was granted to him by the defendant and the said loan was liquidated in 2019 even before the termination date 10^th January 2019 without his knowledge.

That sometimes in 2018 before his termination he was placed on performance improvement plan (PIP) for six months between October 2018-March 2019 on recommendation of the said Sector Lead and that the form is not a true reflection of his performance rather a vindictive move by his Sector Lead, Mr Anthony Asonye (Sector Lead for Education and Religious Institution) because the performance improvement plan form was just a blank form to which the defendant did not indicate the area that needs improvement (performance indices) in his performance and the improvement required (performance goal) was not also stated in the form by the Defendant; that because of his great performance when he was at the service of the defendant, his compensation package was increased as this was contained in the letter dated July 2^nd, 2018. That moreover the performance improvement plan (PIP) form issued to him for six months from October 2018 to March 2019, the Defendant did not allow the six months to expire before his appointment was terminated in January 10^th 2019 barely three months after the PIP was issued to him; that he cannot be rightly placed on PIP if his performance is assessed on merit rather than the avowed move of his Sector head to send him away from the Bank at all cost. His reasons for this averment are as follows:

1. He booked N1,000,000,000.00 loan within 48hrs for Rainbow Educational from application to disbursement in February, 2018.

2. He booked N700,000,000.00 loan for Greensprings Educational services, displacing Stanbic Bank who was already working on granting same facility to the school.

3. He collected N2billion school fees for Greensprings School from September to December 2018, opened accounts for all their campuses and also replaced all other bank's POS terminal with Union Bank’s POS terminals.

4. He recovered classified Bingham University bad loan which was booked by another staff. In the process he spent weeks in Nasarawa State, risked his life and eventually got the University to pay N1,050,000,000.00 as full and final payment. In addition, the University also agreed to continue banking with Union Bank.

5. He was one of the main organizers for the successful maiden edition of Edu360 which took place in October 2018.

6. He was invited by the Executive Director of Commercial Directorate to appreciate the organizers of the first Edu360 of which he was a key member.

7. Within the first 10 day of January 2019, he brought in over N800,000,000.00 (Eight Hundred Million Naira) deposit, instead of commendation, he was asked to go.

That by his letter of termination, the Defendant promised to advise him on benefits due to him from which outstanding liabilities will be deducted and credited to his account shortly and that it is over a year that his appointment was terminated, the defendant is yet to advise him of his benefits and liabilities and no reason was advanced for this terrible position; that all his actions toward the Bank was positive contribution to the overall goal of the Bank; that there was no query nor warning and other sanction of any form in his five years of meritorious and blameless career in the Bank. That the effect of failure to credit his account as promised by the defendant was that the loan granted to him by the defendant was classified as bad loan and thereby threw him into CRC CREDIT BUREAU LIMITED record, the purpose of this classification is that his name is in the global black book of debtors and no bank in the world will grant him credit until the loan is fully paid and even after payment it will still indicate his name as person unworthy of credit; that the defendant failed to inform me in writing that the loan granted to me has been liquidated in 2019 and the need to pay the loan before putting my name in CRC CREDIT BUREAU LIMITED which classified him as a debtor unworthy of credit anywhere in the world.

That he is entitled to be paid full entitlement and full gratuity having spent over 5 years of satisfactory performance with the Bank and damages for making his name to enter into the black book of the global debtor which portrayed him as a person unworthy of credit anywhere in the world to wit;

1. 150% Annual Basis Salary 1,808,561.98 2,712,842.97

2. 150% Annual Housing Allow. 1,391,201.53 2,086,802.30

3. 150% Annual Trans. Allow. 695.600.00 1,045,400.00

4. 4 months Basic Salary in lieu

of Notice 150,713.50 602,853.99

5. Earned Salary

6. Earned Education

7. Prorated 13 months

8. Earned leave days

9. Tax Deductible

10. Gratuity Entitlement ____________

6,445,899.26

That his colleagues who left the service of the defendant before him were paid their entitlements, one of them is Mr. Lateef Ismail Adebayo who left the service of the defendant on the 19^th of July 2018 after spending 7 years of service with them and was paid his entitlement and another colleague named Ajila Ayodele Olufemi who left the service of the defendant on June 28, 2019 was also paid his entitlement after spending 4 years of service with them. That he left the services of the defendant on the 10^th of January 2019 before the above-Named Ajila Ayodele Olufemi, and up till date he has not been paid his entitlement whereas those who left the service of the defendant after him have been paid their entitlement. That by a letter dated 15^th January, 2020, his Lawyer wrote to the Defendant to demand for his entitlements to which there was no response and that by another letter dated the 26^th February 2020, his lawyer reminded the defendant of his earlier letter to which there was no reply; that by two separate letters, each to the Legal Department and Human Resources Department, his lawyer informed them of his termination and the need to pay his entitlements as stated by the Defendant.

In his reply to the Defendant’s Statement of Defence and Defence to Counter claim, the claimant stated that though the Defendant/Counter Claimant stated that it has discontinued gratuity scheme, it still pays benefits to its staff who spend even less than 5 years and those that spent up to 5 years and above, therefore, he is also entitled to the benefits; that his then boss Mr. Asinge denied him of going on leave and even to go for the naming ceremony of his child became a problem; that he sent e-mail to the authority to complain of the autocratic nature of his boss to no avail, unfortunately he was not allowed to have access to the computer the moment he was swept out of the Bank; that he has never seen the said letter dated 20^th day of February, 2019 and that the purported current e-mail address is ayotundeadebisi0@gmail.com.; that the 0 after adebisi in the Gmail address is 0 as in figure and not the small o in alphabet which definitely will not deliver the letter to his e-mail address; that he was never aware of any outstanding balance and that what he was waiting for was balance payment after deducting his indebtedness with the Bank. That by the letter of termination of appointment dated January 10, 2019 the management of the Bank is aware that he is entitled to some benefits as applied to some of his colleagues who did not even spend five years in the service of the Bank, However, some cabals led by Asonye who ganged up to flush him out of the bank continued their notorious activities to later change management’s decision to pay him his benefits to finally actualize their planned unholy intention.

That termination of his employment four days to his 5^th year anniversary is a calculated attempt by the departmental cabal to rob him of his entitlement but thank God they embarked on a fruitless mission as a colleague who spent only 4 years and some staff were paid their benefits in full without looking at the so-called cancellation of the gratuity; that he actually obtained the loan and part payment was made and the management agreed that the balance will be deducted from his benefits which was never paid till he approached the honorable court for relief; that he is not liable to payment of 14% per annum or any interest at all as he will not be thrown into debit if the wish of the counter claimant's management decision to pay his benefit was followed and adhered by the administration and personnel department who without the approval of the Bank withheld his benefit. He urged the honourable court to dismiss the Counter Claimant's Defence and Counter Claim for lacking in merit.

Under cross examination by the defendant/counter claimant’s counsel, CW stated that he was not paid salary in lieu of notice; that the source of his information on the figures calculated was the breakdown given to his colleagues before and after his termination; that the CRC Bureau is different from the defendant; that he is owing the defendant the sum of N2. 8 million and that he wants the debt to be debited from his benefits; that he heard that Mr. Asonye has left the defendant; that he did not put the defendant on notice to produce some documents because the defendant did not respond to any of his correspondence.

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

The defendant/counterclaimant opened its defence by calling its sole witness, Miss Jennifer Ukoha, a banker in the employ of the defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant/counter claimant’s witness statement on oath is that even though the Claimant's employment letter was dated the 13^th day of January, 2014, his employment became effective on the 3^rd day of February, 2014, the day the Claimant resumed work with the Defendant with a gross annual salary of N10,379,100.00 (Ten Million, Three Hundred and Seventy-Nine Thousand, One Hundred Naira Only); that the medical allowance is usually paid to the HMO of the respective employee and same was the case of the Claimant, the employer's portion of the' Pension contribution, and Leave allowance, all form part of the Claimant's annual gross salary. More so, as at the time the Claimant was employed by the Defendant, eligibility for gratuity was subject to having spent 5 years in the service of the Defendant with satisfactory, performance. The gratuity scheme was discontinued in the month of May, 2014 and monthly gratuity supplement payment was introduced by the Defendant to all its employees inclusive of the Claimant. Also, the Claimant did not spend up to 5 years in the service of the Defendant before his exit from the Defendant on the 11^th day of January, 2019.

That the Claimant's employment was confirmed in line with the offer letter and the policy of the Defendant and not on any other extraneous grounds and that the Claimant enjoyed his annual leave as at when due while in the defendant's employ, the defendant as an employer of choice places great premium on the wellness and comfort of its employees. The allegation of not being allowed to go on annual leave by the Claimant is an afterthought and lacking in substance. The Claimant was in the Bank long-enough to know that he could have at least lodged a formal complaint through the appropriate channels. The Claimant is also aware that leave entitlement for a particular year must be fully utilized within that year and any carryover of leave days to the succeeding year must be with appropriate approval. Without this approval any unutilized leave days is forfeited. The Claimant is irrevocably put to the strictest proof of his claim of sending numerous emails to the defending demanding to go on annual leave and was denied by the Defendant.

That the Defendant is not in the position to either admit or deny paragraph 8a of the statement of fact and further avers that the material allegations contained therein are only to the knowledge of the Claimant and that the Claimant is put to the strictest proof of his claim that he was not allowed to proceed on leave by another mere staff of the Defendant, as this was without the knowledge and authority of the Defendant; that the Claimant's allegation of persecution hinged on ethnicity, nepotism and hatred for involvement in unionism are all afterthought and are grossly lacking in substance as the Claimant had an unfettered access to have approached the Human Resource Department of the Defendant to lodge a formal complaint and that he could have also availed himself of the whistleblowing channel maintained by an external body on behalf of the defendant to expose his allegations and seek redress, but did not even when he was aware of those channels of communication with the Defendant.

That the Claimant's appointment was terminated in line with his contract of service with effect from 11^th day of January, 2019 and that a letter dated 20^th day of February, 2019, conveying a net indebtedness of N2,972,192.61 as at the date of his exit was sent to the Claimant's current email address ayotundeadebisio@gmail.com, which was the channel of e-mail communication between the parties; that the email also included an analysis of how the benefits due and the indebtedness was arrived at. He was further advised in the letter of 20^th February, 2019, that interest will continue to accrue on the outstanding balance at the commercial rate after thirty (30) days of his exit from the bank until the entire debt is fully paid in line with the Bank's policy.

That the Claimant's employment was terminated in accordance with the terms of his Contract of Service with the Bank which allows either party to terminate the said contract by giving the other party one month notice or one-month basic salary in lieu of notice of termination; that the sum of N126,569.20 representing one-month basic salary in lieu of notice of termination was paid into the Claimant's union Bank account number 0040556845 on the 11^th day of January, 2019. That the defendant did not fail to Credit the Claimant's account after his exit on the 11^th January, 2019 because the Defendant by its letter of 20^th February and e-mail of 21^st February, 2019 communicated to the Claimant of his terminal benefits/his indebtedness status and by the breakdown of his benefits vis-a-vis his indebtedness, there was nothing left to be credited into the Claimant's Account rather there is an outstanding indebtedness of N2,972,192.00 due and payable to the Defendant by the Claimant: More so, the Claimant having been availed a retail loan by the Defendant, he is obligated to fully settle the loan before a favorable credit bureau report can be obtained by the claimant. Furthermore, the CRC CREDIT BUREAU LIMITED is an independent entity and runs its affairs independently of the Defendant and does not in any way act as the agent of the Defendant.

That the Claimant, who was a staff of a financial institution, is aware of the regulatory requirement to forward details of facilities advanced to customers to the CRC and this information was sent immediately the facility is advanced to the customer and not thereafter; that four (4) months into the employment of the Claimant, the Defendant via an e-mail of 14^th May, 2014 cancelled the payment of gratuity to its employees and the Claimant was aware of the cancellation of gratuity payment; that the allegation by the Claimant that he had spent over 5 years with the Defendant, is false as the Claimant only spent the period of 4 years, 11 months and some days, short of 5 years requirement for gratuity prior to the cancellation of the payment of gratuity by the Defendant. However, the Defendant upon the cancellation of gratuity payment in the month of May, 2014 introduced a monthly gratuity supplement payment to all her members of staff of which the Claimant enjoyed throughout his employment with the Defendant from the month May, 2014 till his exit from the Defendant. That the defendant was about to respond to the letters when it received the notification of this suit and thereafter had to put its responses on hold; that the Claimant is not entitled to any of the claims as same is being fraught with frivolities, misconceived and misleading accounts of facts. That the Defendant to Counter-Claim’s outstanding indebtedness stood at the sum of N2,972,192.61 and that commercial interest rate of 14% per annum had continued to accrue on the said sum from February, 2019 till date; that the indebtedness is still outstanding and due, but the Defendant has refused to honor his obligation to liquidate his indebtedness to the Counter-Claimant.

Under cross examination by the claimant’s counsel, DW stated that exhibit AA 11 was sent to all staff inclusive of the claimant; that the minimum leave a staff is allowed to have depend on the grade and whether the staff is confirmed; that there is no evidence before the honourable court on the number of days the claimant is entitled to; that the mode of service for the claimant is termination while the staff in exhibit AA7 is withdrawal of service.

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

The parties were directed to file their final written addresses. The defendant’s final written address is dated and filed 30^th August, 2024 while the claimant’s final written address is dated and filed 28^th October, 2024. The defendant’s Reply on point of law is dated and filed 1^st November, 2024.

Learned counsel on behalf of the defendant formulated three (3) issues for the court’s determination viz:

1. Having regard to the pleadings and evidence adduced by both parties herein, Whether the Defendant by the contract of service between the parties has validly terminated the employment of the Claimant.

2. Having regards to the pleadings and the evidence adduced by both parties herein, whether the claimant is entitled to the claims against the defendant.

3. having regards to the pleadings and the evidence adduced by both Parties herein, whether the Defendant/Counter-Claimant is entitled to its counter - claim against the Claimant/Defendant to counter - claim.

It is the defendant’s counsel submission on issue one (1) that by the pleadings and the evidence before the honorable court, it has been established that a contract exists between the parties which confers on either party the right to determine the contract at any time on the only condition of either a calendar months' notice or a month's salary in lieu of such notice via exhibit AA15 and AA16 respectively. He cited the case of C.I. Co Ltd v. S.B. (Nig) Ltd (2017) ALL FWLR (PT.891) 900 at page 921, para. B and urged the honourable court to give effect to exhibits AA15 and AA16 and hold that the termination of the claimant’s employment is valid between the parties and therefore, the claimant's termination is prevailing and subsisting without branch.

On issue two (2); counsel submitted that the claimant has failed in his pleadings to link his claims to the contract of service (exhibit AA15) between the parties as he is required to show how he became entitled to the reliefs sought in this suit by his contract of service with the defendant which will stipulate what the right, interest and liabilities of each party to the other is; that the only credible evidence to establish the claimant’s allegation that a staff of less than 5 years' service duration was paid terminal benefits and gratuity by the defendant, would have been at least the document of such payment as was shown by the Claimant in exhibit AA 7. He cited the case of Amodu v. Amode (1990) 5 NWLR (PT.150) at Page 356 and urged the honourable court to so hold.

On issue three (3); the defendant’s counsel submitted that the failure of the Defendant to counter - claim to join issues with the counter- claimant by way of defence to counter-claim, amount to admission and that he has no evidence to adduce against the Counter-Claimant's Claims. He cited the case of Aprofim Engr. Const. (Nig.) Ltd v. Bigouret (2012) ALL FWLR (PT. 622) 1740 at pages 1772-1773, paras. H-A and urged the honourable court to dismiss the claims of the claimant in its entirety and enter judgment in favour of the defendant/counter claimant.

Learned counsel on behalf of the claimant formulated five (5) issues for the court’s determination viz:

1. Whether the Claimant is entitled to be paid his benefits and whether the defendant act of non-payment of the Claimant's benefit is lawful having paid two of his colleagues who left the service of the defendant their entitlement.

2. Whether the Claimant is entitled to be paid his gratuities having worked with the defendant for 5 years.

3. Whether the liquidation of the 5 years loan in 2019 instead of 2020 without the knowledge of the claimant and the act of enlisting the Claimant's name in CRC Credit Bureau Ltd without the Claimant knowledge is lawful whether the defendant is entitled to pre judgment interest on the loan.

4. Whether it is lawful for the defendant to terminate the Claimant’s appointment without giving Justifiable reason.

5. Whether the claimant has proved his claim before this court and whether he is entitled to his claim for damages and interest for not being paid his benefits and gratuities and for terminating the Claimant's appointment without giving Justifiable reason.

It is the claimant’s counsel argument on issue one (1) that the Defendant did not proffer any evidence contradicting the Claimant's evidence as to non-payment of his benefits and that its failure to show that the claimant benefits was ever paid, leave the honourable court with no option but to deem the Claimant's evidence has been admitted and proved because the Defendant did not challenge the Claimant's evidence in this regard by cross-examination. He cited the case of Ighosewe vs. DSC Ltd (2008) All FWLR (pt. 410) 741 at 763 and urged the honourable court to resolve issue one (1) in favor of the Claimant and hold that the Claimant has proved that his benefits stood at N6,445,899.26 (Six Million, Four Hundred and Forty-Five Thousand, Eight Hundred and Ninety-Nine Naira, Twenty-Six Kobo) being the Claimant's entitlement as Assistant Manager who served the Defendant for 5 years meritoriously.

On issue two (2); counsel submitted that the Defendant’s averment as to the amendment of the gratuity payment plan, the internal memo was never served on the Claimant and there is no evidence before the honourable court that same was served on the Claimant, as facts pleaded which are not supported by evidence and are at variance with the pleadings go to no issue. He cited the case of Jack v White (2001) FWLR (pt 43}297 and urged the honourable court to discountenance the internal memo filed by the defendant as mere fabrication and grant all the gratuity claims of the claimant having led credible evidence in discharge of the onus of proof on him.

On issue three (3); counsel submitted that the liquidation of the loan granted to the claimant in 2019 instead of 2020 without the knowledge of the claimant and subsequent input of the Claimant’s name in CRC Credit Bureau Limited record is unlawful; that the claimant was never served with a letter of indebtedness nor was he advised of his outstanding loan as the email address, the Defendant claimed to have sent those letters to is a wrong one and obviously will not deliver same to the claimant.

On the counter claimant’s claim for interest at the rate of 14% per annum from the 22^nd February, 2022 till payment; counsel submitted that there are no pleadings nor evidence on specific details of any agreement of the parties on the pre-judgment interest.

On issue four (4); counsel submitted that the termination of the Claimant's employment contract without stating expressly the reasons for such termination is unlawful, null and void; that by virtue of Article 4 of convention No.158 of ILO and recommendation 166 of the said convention, it is unfair to terminate the contract of the employment for no reason whether bad or good. He cited the case of Arthur Walters v. Frank Harrisson (1922) ALL NLR 73 and urged the honourable court to so hold.

It is the claimant’s counsel argument on issue five (5) that the claimant has proved before the honourable court the following to warrant the court to grant damages, to wit:

1. The Claimant benefits and gratuities was never paid.

2. The loan granted by the defendant to the claimant for 5 years from 2015 to 2020 was unlawfully liquidated by the defendant in 2019 instead of 2020 without the knowledge of the claimant.

3. The defendant inputting the claimant's name on Credit Bureau Ltd is unlawful bearing in mind that the loan was liquidated by the defendant in 2019 instead of 2020 and it is unequivocally clear that the Claimant's name was inputted on Credit Bureau Ltd by the defendant without the Claimant notice.

4. The defendant terminated the Claimant’s appointment without giving Justifiable reason.

5. The Defendant failure to pay the Claimant's benefits and gratuity without reason has destabilized the trajectory of not only his personal lifestyle but also his mental health and so is entitled to damages and compensation

It is the defendant/counterclaimant’s Reply on point that the claimant who failed to join issues with the defendant on his terminal benefit as contained in exhibit AA 14 or controvert the facts in the defendant's statement of defence that his benefits as in exhibit AA14 was used to settle part of his indebtedness to the defendant, is deemed to have admitted the fact contained in exhibit AAI4 and the averment in the statement of defence; that facts admitted need no further prove as admission is the best form of evidence.

That exhibits AA13 and AA14, clearly vested the Defendant/Counter Claimant the right to claim interest on the outstanding claimant's indebtedness and in the exercise of the right of interest, the defendant/counter-Claimant claimed interest at 14% from February, 2019 till the final liquidation of the loan facility and that the claimant cannot by the submission of his Counsel seek to controvert or dispute the Counter - claims of the Defendant, having failed to file a statement of defence in rebuttal of facts pleaded in the Counter -claim, as his failure to rebut and/or controvert the facts as pleaded in the counterclaim, amounts to admission by conduct.

That the claimant’s contention that the claimant was not giving a justifiable reason for his termination from his employment was never the case of the claimant and the claimant never disputed his termination in his pleadings and the correctness or otherwise of his termination was not in controversy in the pleadings and cannot be allowed in the address stage to input facts not pleaded. That by the nature of the relationship between the parties, which is one of master and servant relationship, the employer can determine the employment as provided in the contract of service exhibit AA 15. He cited the case of Ekunola v. C.B. N. (2013) ALL FWLR (PT.703) 1861 at pp.1895 -1896, paras. H-B.

I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final addresses in this matter. The issues for determination are

1. Whether the claimant has led sufficient credible evidence before the court to entitle him to succeed in his entire claim.

2. Whether the defendant is entitled to its counter claim

A summary of the facts herein will reveal that the claimant was employed as chief marketing officer – Retail. He was confirmed and by exhibit AA3 was placed on Performance improvement plan (PiP) in 2018 stating that his performance as it is not currently at a satisfactory level and was not given opportunity to demonstrate improvement. His appointment was terminated on 10^th January 2019. As a staff, 5-year loan facility was granted by the defendant. The claimant stated that he could not offset the balance of the outstanding loan as his account was not credited with his entitlement after termination. The claimant’s assertion is that the non-payment of gratuity by the defendant led to the loan not being fully liquidated and that his name was sent to the CRC (credit Bureau). The defendant’s defense is that the claimant’s employment being master servant, the defendant is at liberty to terminate and the claimant was paid one month’s salary in lieu. That the debt remains unpaid till date and counterclaimed for same. In proof of his case the claimant tendered the following documents- Offer of employment (exhibit AA 1), Confirmation (exhibit AA2), Performance improvement Plan (exhibit AA3), Compensation / Benefit Review (exhibit AA4) Termination of appointment (exhibit AA5), CRC Credit bureau (exhibit AA6), Withdrawal of service (exhibit AA7), Claimant’s solicitors’ letter (exhibit AA9 & AA10). The defendant tendered union bank Gratuity scheme (exhibit AA11), Pay advice (exhibit AA12), Letter of indebtedness (exhibit AA13), Breakdown of indebtedness (exhibit AA14), Contract od service (exhibit AA15), Claimant’s bank statement (exhibit AA16).

The claimant has argued that the loan repayment could not be completed as it was to run up to 2020 and his employment was terminated in 2019. Parties have a right to bring an employment to an end. An employer has a right to terminate or dismiss an employee while an employee has a corresponding right to resign or withdraw his services as both must be done in compliance with the contract of employment. The right to terminate or bring an employment to an end is mutual in that either party may exercise it. See Jombo v P.E.F.M.B. (2005) 14 NWLR (Pt 945) 433 SC. The case of the claimant is that the defendant terminated his employment without reason. On the power of master to terminate employee’s employment and whether the employer is bound to give reason for termination, the court in Layade v Panalpina World transport Nig Ltd (1996) 6 NWLR (Pt 456) 544 SC held that apart from employments governed by statutory provisions, where termination must follow the provisions of the relevant statutes, the master in other cases can terminate for good or bad reasons, subject to remedies of compensation where applicable. Ordinarily, a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reasons at all. A court cannot insist on having cogent reasons for the dismissal by an employer of his employee. See L.C.R.I.V. V Ndefoh (1997) 3 NWLR (Pt 491) 72 CA. See also Nfor v Ashaka Co Ltd (1994) NWLR (Pt 319) 222 CA. Based on the above authorities, the claimant’s submission that the defendant did not give reasons for termination cannot hold.

Next is the claimant’s averment in paragraph 7 of the amended statement of fact is that he was not allowed to go leave for some years he spent with the defendant despite repeated demand to go on leave and totaled the number of unused leave days as 95 days before he was terminated. He referred to Mr. Asonye who was his sector head as the reason for not being granted leave and that his performance assessment was not based on merit but a result of enormous persecution hinged on ethnicity, nepotism, hatred for the claimant’s unionism involvement, what has the claimant got to show for all these allegations against Asonye and refusal to allow him go on leave. There is no letter to complain about the said harassment from Mr. Anthony Asonye.

The claimant’s 1^st claim is for N6, 445, 899.26 being the claimant’s entitlement as Assistant manager. By virtue of Sections 131& 132 of the Evidence Act, the onus is on the claimant to prove by credible evidence that he is entitled to the sum of 6, 445, 899.26 being outstanding entitlement. There is no doubt that the plaintiff 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. Th onus of proof was succinctly stated in Owoniboys Tech Services Ltd v UBN (2003) LPELR -2852/9SC) where the Apex court held thus ‘’ In the first place, it is expected that the onus is on the appellant who initiated this claim to prove its case. That has always been the guiding principle in our law. See Okobule v Oyagbola (1990) 4 NWLR (Pt 147) 723: Ike v Ugboaja (1993) 6 NWLR (pt 301) 539. In the instant case, the claimant averred in paragraph 23 of the amended statement of fact that he is entitled to the said sum as outlined by him. The claimant has not told the court how he arrived at this figure. The defendant’s witness stated that the relationship with the claimant is that of master and servant and has the prerogative to terminate the claimant’s employment. From the pleadings, the controversy is whether the claimant is entitled to the sum. Exhibit AA5 is the letter of termination of Appointment and part is reproduced below

In line with the contract of service, your appointment with the bank is hereby terminated with effect. Your account will be credited with one month’s salary in lieu of notice from January 11 2019.

Please be advised that benefits due to you and from which outstanding liabilities are to be deducted will be credited to your account shortly.

The main issue now is that even though there is no pleading or relief that the termination was wrongful and malicious his main claim is for gratuity. The claimant raised the issue of termination without justifiable reason in paragraph 44.1 in the final address. it is clear from the foregoing that the claim herein and which is the determination of the court is simply one for non-payment of his gratuity due to the claimant after termination in 2019.

Having referred to termination not being in line with ILO convention 158 the court will start by looking at the mode of termination of the claimant’s employment. The claimant was not given notice of termination but was paid one month salary in lieu of notice. In Adebayo v O.A.U.T.H.C.M.B (2002) 9 NWLR (Pt 673) 588 CA the Court of Appeal stated that motive is irrelevant in termination and held thus

A master can terminate the contract of employment with his servant at any time and for any reason or no reason at all provided the terms of the contract of service between them are complied with. The motive which led an employer to lawfully terminate the servant’s employment is not normally relevant factor and the court will not have business with such motive but will only give effect to the contract of service between the parties. In Agbo v CBN (1996) 10 NWLR (Pt 478) 370 CA held that where an employment has been properly terminated in terms of contract of service, intention and motive of the termination become irrelevant. The validity of the exercise of a right to terminate an employment cannot be vitiated by proof of malice or improper motive; for the law has always been that in the ordinary case of master and servant, the master can terminate the contract of employment at any time for good or for bad reasons for no reasons.

See Ajayi v Texaco Nig Ltd (1987) 3 NWLR (Pt 62) 577 SC.

This was what the defendant did by not giving any reason save for the fact that it was with no notice but the claimant was paid one month salary in lieu of notice. The claimant by exhibit AA5 was paid salary in lieu of notice so cannot complain of failure to give adequate notice as provided in AA15 which provides

Notwithstanding anything herein contained either the bank or you may determine this agreement at any time giving to the other party, one calendar month’s notice in writing or one month’s salary in lieu of such notice

Exhibit AA14 is a mail to the claimant and on the other page is the terminal Benefit / indebtedness breakdown. The claimant’s entitlement is N245, 490. 44 while the loan is put as 3, 217, 683.05 and after deduction of N245, 490. 44 brings the net entitlement to N2, 972,192.61. In the instant case, the claimant has pleaded the terminal benefits as 6, 445, 899.26. The claimant has stated that he is entitled to full gratuity having spent 5 years with the bank. That the defendant refused to pay him his earned gratuity hence his name appeared in the global debtor’s book which portrayed him as an unworthy person. The defendant’s submission is that as at the time the claimant in May 2014 was employed, eligibility for gratuity was subject to having spent 5 years in the service of the defendant, but the gratuity scheme was discontinued and in place commenced the monthly gratuity supplement. That as the claimant did not spend up to 5 years with the defendant before his exit on the 11^th of January 2019, he is not entitled to gratuity under the old scheme. The claimant was employed on 13^th 2014 January and his appointment terminated on January 10 2019 which when calculated is 4 years 11 months. CW under cross examination to the question ‘’ how many years did you work with the defendant and he responded 4 years 11 months’’

To what extent is the contention of the defendant that there is a new gratuity policy which replaced the former one. The defendant in paragraph 3 of the amended statement of defense averred that defendant did not work up to 5 years relying on email of 14^th May 2014 and the claimant’s pay slip. Exhibit AA11 is a mail from Michael Iyela to Union Bank employees on union bank gratuity scheme and it states

We advise that after consultation with various stakeholders, the bank will discontinue the gratuity benefit paid to exiting staff who have spent a minimum of five years with the bank.

This is in line with the defendant’s contention that the Gratuity scheme is for those who worked up to 5 years. The claimant, notwithstanding exhibit AA11 has denied receipt of same. In his reply he submitted that the mail did not get to him as the wrong email was used. The email referred to was sent out as a general mail to UBN employees. it was not written to individual staff. The claimant has argued that he is entitled to gratuity payment same was made to colleagues who left the service of the bank as contained in exhibit AA7 & AA8. Exhibit AA7 shows that the colleague Lateef Ismail Adebayo withdrew from the services of the defendant and exhibit AA7 starts with

We wish to notify you that the management has approved the withdrawal of your service from the bank with effect from July 20, 2018.

This shows his withdrawal was based on application. Then with reference to exhibit AA8 being the terminal benefit of Ajila Olufemi is a mere piece of paper that has no evidential value. The present submission is for mandatory order challenging the defendant’s gratuity scheme on the number of years before qualification and has exhibited payments made to ex staff. The claimant has added up the unused leave to make up for the number of years. This is equally without evidence. In such a case, the action to my mind would come within the provisions of Section 135 (1) of the evidence Act that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The order sought by the claimant cannot be granted without strict proof of entitlement and what confers same on him. See Nyesom v Peterside (2016) LPELR -40036 (SC), Onigeriawe v Emehinba (2008) 9 NWLR (pt 1092) 394.

His main contention is that the letter of termination referred to benefits and this is the paragraph

Benefits due to the claimant and from which outstanding liabilities are to be deducted will be paid to his account shortly.

Under cross examination the claimant testified that he worked for 4 years and 11 months, the calculation based on the number of years the claimant worked did not entitle him to gratuity save for the salary in lieu of notice as shown in exhibit AA14, bringing the indebtedness to N2, 972, 192.61. The defendant stated that after the termination of the claimant, it was communicated to him on the terminal benefit / indebtedness status by the breakdown of his benefits vis -a-vis his indebtedness, there was nothing left to be credited into the claimant’s account rather there was an outstanding indebtedness of N2,972, 192 due to the defendant. The claimant has further submitted that he is not aware of the email whereby the gratuity is dependent on working for up to 5 years. The claimant cannot claim ignorance of the email as he has not told the court if sending mail is not one of the methods of communication between the employer and the employee.

What the claimant wants the court to do is to rely on the various reasons adduced by him for entitlement to gratuity. If he admitted that he did not work for the defendant up to 5 years, he equally has a corresponding duty to tell the court what to rely on to be paid the said gratuity. Under cross examination by the defendant’s counsel on how he came up with the various figure in paragraph 26 of the amended statement of fact, he responded that

The source of the information in the document is the breakdown given to my colleague before and after my termination.

He would testify later that while exhibit AA7 is letter of withdrawal. He did not have the other colleagues document (exhibit AA5). Having considered the entire pleadings before me, I have no difficulty in coming to the conclusion that the claimant’s claim for the sum of N6, 445, 899 .29 has not been proved. He has not proved same and the relief is bound to fail and it fails and is dismissed. On relief 1 that he is entitled to the sum of N6, 445, 899.29 fails. Relief 1 having failed, relief 2 collapses automatically.

The claimant or I dare say his counsel did not apply the maxim of he who asserts must prove and in civil cases, the onus of proving a particular fact is fixed by the pleadings. It does not remain static but shifts from side to side. see Gbafe v Gbafe (1996) 6 NWLR (pt 455) page 417 at 432. As the burden of proof merely requires the party alleging a fact to prove the fact, it behooves on the claimant to prove that he is entitled to 6, 445, 899.26 as Assistant manager who served for 5 years and the sum of N12, 000, 000 (Twelve Million) as Gratuity, he has not done that. I also looked closely at exhibit AA6 which is the CRC credit BUREAU Limited and has claimed the sum of N3, 000, 000 as the claimant’s name was put in the black book. The defendant’s response in paragraph 4.40 of the final address is that the claimant seeking damages cannot stand against the defendant for the entry of name in black book of global debtors (CRC Credit Bureau Ltd) because the claimant is indebted to the defendant. The claimant has admitted owing the defendant and the said loan has not been repaid till date. I agree with the defendant that the claimant has been paid his outstanding entitlement but same was used to offset part of the outstanding debt of the claimant. The law is that a plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case as the burden of proof does not shift to the defendant in a civil claim if the plaintiff has not established or discharged the primary and first burden on him. See Yesufu v Adama (2010) 5 NWLR (Pt 1188) 522. I must emphasize, the claimant is not consistent in stating his case and consistent in proving it. It is therefore now firmly settled that where there are averment without evidence in proof of the facts pleaded, the court in Malhotra v Bank of Singapore Ltd (2014) LPELR -22442CA held thus

It is trite that a party must make out his case by the best available evidence. Therefore, where averments are just made without proof, then they must be discountenanced for lack of proof. The courts do not make order in vain.

See Okon & Anor v Offiedeh (2013) LPELR-21189 (CA). It is the law that pleadings however strong and convincing the averments may be, without evidence of proof go to no issue.

I now turn to the defendant’s counterclaim under which the defendant is praying for a declaration that the defendant to the counterclaim is indebted in the sum of 2, 972, 192.61 being outstanding indebtedness of the defendant to the counterclaim and an order for the claimant/defendant to counterclaim to immediately liquidate his outstanding indebtedness. That the counterclaimant is entitled to interest on the outstanding balance of the loan facility at the rate of 14% per annum from 22^nd February 2019 to the date of judgment and thereafter at the same rate until judgment sum is satisfied. Under cross examination the claimant testified to a question ‘’ you are indebted to the bank and he responded yes to the tune of N2.800, 000. On whether he has paid it back he answered no I want it to be deducted from my benefit. The claimant in paragraph 19 acknowledged through his pleadings that he was granted loan by the defendant and same was classified as bad loan hence the claimant’s name is in the Global black book until the loan is fully paid. He is not disputing the loan from the bank. From the entire pleadings and evidence of both parties in respect of the counter claim, the claimant was availed bank facility of N5, 800,000 from the defendant. The defendant/ counterclaimant stated that the claimant obtained the loan as a staff of the defendant and repaid the sum of N2, 582, 316 .95 leaving an outstanding indebtedness of N3. 217. 683.05. On termination, the terminal benefit of N245, 490,44 was used to settle part of the outstanding indebtedness leaving a balance of N2,972, 192.61. Exhibits AA6, AA13 and AA14 are all documents relating to the loan.

That he took a loan is not in dispute. The claimant / defendant to counterclaim’s contention is that the loan is to run till 2020 and his employment was terminated in 2019. 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 16th 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 exhibit OS 22. The claimant cannot be heard to plead terms and conditions outside the written agreements he entered in respect of the loan. The issue is resolved against the claimant.

The defendant wrote a letter to the claimant in exhibit AA13. The Court of Appeal in Ifesima v Ecobank LPELR 46589 (CA) stated the effect of failure of a debtor to deny a demand letter from a creditor as follows

‘’The law is settled and clear that where a bank makes demands for settlement of debt by letters and the amount of debt contained in the letters and the debtor does not query the figure written in the letter as the overall debt due but rather writes letters in response explaining the reasons for the non – payment of the debt, the debtor will be deemed to have impliedly admitted the quoted figure as the amount of debt due. See the decision of this court in Nagebu Company (Nig) Ltd vs Unity Bank Plc (2014) 7 NWLR (pt 1405) 42, 81 and Karimat Global Trade Links Ltd v Anor v Unity Bank Plc (2014) LPELR -23986 (CA). In the instant case the learned trial judge considering the Appellants non-denial of the figure quoted by the respondent in exhibits P7 and P8 held inter alia ‘’ the balance standing as debt against the plaintiff is N36, 286, 748.02 that is as at 2006 and not the sum counter claimed by the defendant. And unlike in exhibit P10, the plaintiff didn’t protest / contest the figure of amount demanded in the said Exhibits P7 and P8 rather in response to the demand for payment, she expressed her concern for not settling her debt which sum was reflected in the letters and suggested that the matter be amicably settled. In situations such as this, where the appellant neglects, refuses or fails to deny the amount due and unpaid, the Appellant will be deemed by the non- denial to have admitted the quoted figure as the amount due against him. in the circumstance, the learned trial judge was therefore perfectly justified in treating the Appellants non-denial of the figure N36,286,784.02 quoted in exhibits P7 and P8 as an admission of her indebtedness to the respondent in the said amount’’

From the above authority, the law is clear that where there is non-denial of the figure in a demand letter for payment and a response to pay same is deemed to be an admission of the amount owed. I am accordingly satisfied that the defendant has established its counterclaim for the sum of N2, 972, 192.61 in terms of counterclaim and I so hold.

On the whole and for the reasons given, the claimant has not proved his case, the case lacks merit and is dismissed. The counterclaim of the defendant succeeds in the sum of N2.972.192.61.

In conclusion, I hereby enter judgment in this case as follows:

1. The claimant’s claims fail and is hereby dismissed in its entirety.

2. Judgement is entered in favour of the defendant for the sum of N2, 972.192.61 (Two Million Nine Hundred and Seventy-Two Thousand, One Hundred and Ninety-Two Naira Sixty-One Kobo Only) being the balance due and payable by the claimant to the defendant/Counterclaimant.

3. There shall be 14 % interest per annum from 22^nd February 2019 to the date of judgment and thereafter at the same rate until judgment sum is satisfied.

4. I make no order as to cost.

Judgment is entered accordingly.

HON. JUSTICE A.N. UBAKA

JUDGE

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