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His Lordship, Hon. Justice I. G. Nweneka of the National Industrial Court of Nigeria, Abakaliki Judicial Division on Wednesday 2nd May in a judgment delivered dismissed claimant claims and counterclaim in a case of MR. AGHA ANYINA AND FIRST CITY MONUMENT BANK LTD for lack of prove.
The Claimant Mr. Agha Anyina through his counsel Ota Ewa Esq. initiated this action by originating summons filed on 13th September 2017. By a further amended statement of facts dated 14th February 2018 and filed on 16th February 2018, the Claimant claimed against the Defendant among others; An order of the Honourable Court directing the Defendant to pay the Claimant the sum of [N8, 925,814.59] eight million, nine hundred and twenty five thousand, eight hundred and fourteen naira, fifty nine kobo only, being the balance of his severance/ex-gratia or resignation benefit from the month of January 2010 to April 2016 when the Claimant resigned from the Defendant.
The Claimant’s case is that he was an Assistant Manager with the Defendant on a monthly salary of N342, 859.50 before his resignation on 28th April 2016. Prior to his employment by the Defendant, he was a staff of Inland Bank Nigeria Limited, which subsequently merged with other Banks to form FinBank Plc.
The Claimant was promoted to the rank of Assistant Manager on 1st October 2015. On 28th April 2016, the Claimant was advised by the Defendant to resign and he did. It is the Claimant’s case that after resignation, he was paid the sum of N265, 486.31 leaving a balance of N8, 925,814.59 made up of 3 months’ salary in lieu of notice, profit sharing for 2015 and 1st quarter of 2016, severance allowance/ex-gratia from January 2010 to April 2016, outstanding prorated leave allowance for January to April 2016 and tax refund for 2016.
He disclaimed liability to the Defendant for the sum of N863, 765.56. in his written deposition testified that he was on performance improvement plan at the time of his forced resignation and was paid his severance/ex-gratia benefit; but under cross examination he said his performance score was 73.99% and 80.37% for H1 and H2 respectively.
However, the Defendant denied any indebtedness to the Claimant. It is the Defendant’s case that the Claimant’s performance was below acceptable threshold of 70% in 2015. As a result, he was placed on performance improvement plan [PIP] and subsequently advised to resign. The Defendant contends that staff on PIP are not entitled to severance/ex-gratia payment. The Defendant disputed the claims for 3 months’ salary in lieu of notice, profit sharing for 2015 and 2016 as there was no communication to that effect and tax refund. In proof of its counterclaim, the Defendant testified that the Claimant having resigned his employment in April 2016 did not earn the yearly upfront paid in January 2016 and quarterly upfront paid in April 2016 in the sum of N863, 765.56. It stated that demands were made on the Claimant but he refused to pay and relied on exhibits DW1, DW3, DW5 and DW6.
Arguing further, learned Counsel explained that the Defendant breached the procedure specified in the performance improvement plan and staff handbook relating to disengagement of staff. He submitted that “the naive assertion by the Defendant that the Claimant performed poorly by way of issuing him a [PIP] Performance Improvement Plan and not allowing the Claimant to answer or fill the form as stipulated on the form and the staff hand book before a decision to lay him off does not satisfy the requirements of fair hearing or natural justice.
After reviewing the argument of the parties, the Court Presided by Hon. Justice I. G. Nwemeka expressed thus;
“I have considered all the processes filed in this suit and the submissions of learned Counsel for the parties.
First, the Claimant filed a defence to the counterclaim and an accompanying witness’ deposition. Curiously, at the trial, the Claimant failed to adopt his statement on oath in defence of the counterclaim. As rightly submitted by learned Counsel for the Defendant, averments in pleadings are not evidence and the only way a witness’ sworn deposition can metamorphose into evidence is by being adopted in Court.
The Claimant’s defence to the counterclaim dated 14th February 2018 and the accompanying witness deposition dated 16th February 2018 having been abandoned are hereby struck out.
Having regard to the facts of this case, it is plain to me that this is an ordinary master and servant relationship regulated by the letter of employment, exhibit DW6, and Defendant’s Staff Handbook, exhibit DW4 as modified by exhibit DW3.
On issue two which is, whether the Claimant has proved his case on a balance of probability to entitle him to the reliefs claimed?, learned Counsel for the Defendant submitted that there is no iota of evidence in proof of the claim. Again, learned Counsel for the Claimant did not respond to this issue and did not urge anything on the Court in support of the claim. I have reviewed the Claimant’s additional re-sworn statement dated 16th February 2018 and the exhibits tendered. The only material evidence relevant to his claim are in paragraphs 6, 10, 12, 12[sic], 13 and 22. The summary of the evidence is that his salary upon appointment was N185, 985.79 and he was subsequently promoted and his salary increased to N342, 859.50. The Claimant also testified that the Defendant owed him a total sum of N8, 925, 814.59 made up of 3 months’ salary in lieu of notice, 2015 and first quarter of 2016 financial year profit sharing, ex-gratia benefit from January 2010 to April 2016 and tax refund for 2016. As held above, these facts were successfully controverted by the Defendant and the Claimant did not lead any further evidence to establish it.
In addition, there was no documentary evidence tendered to show his entitlement to the reliefs claimed.
There is no proof of the 27% interest claim or breach of contract by the Defendant rendering it liable in damages to the Claimant. Section 134 of the Evidence Act 2011 provides that the burden of proof shall be discharged on the balance of probabilities in all civil proceedings. Placing the evidence of the parties on the imaginary scale, the evidence of the Defendant weighs more and is more probable. In the circumstance, I find and hold that the Claimant has not discharged the evidential burden thrust on him. I agree with learned Counsel for the Defendant that the Claimant has not proved his claim. Issue two is resolved in favour of the Defendant.
The Claimant’s claims fail in its entirety and are hereby dismissed.
I therefore hold that the Defendant is stopped from recovering the sum of N863, 765.56 from the Claimant being the balance of upfront payment made to him in 2016 before his resignation on 28th April 2016; for the reason that the Defendant counseled the Claimant to resign at the time he did. By so doing, the Defendant frustrated the full utilization of the upfront payment and denied the Claimant of resources to repay it.
For the avoidance of doubt, the Claimant’s case fails in its entirety and it is hereby dismissed. Also, the counterclaim fails and it is hereby dismissed. There shall be no order as to costs. Judgment is entered accordingly.
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