IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI

                                                                                              

DATE:  THURSDAY 14^TH MAY 2026

SUIT NO: NICN/LA/186/2020

BETWEEN:

OLUWABUSOLA AKERELE CLAIMANT

AND

1. ACCESS BANK PLC                                                                  
2. CHIZOMA OKOLI DEFENDANTS
3. LOTANNA C. OKOLI

 

Representation:

Paul C. Mgbemena with Joseph Felix and Daniella O. Ajayi, for the Claimant

M.O. Liadi with I.S. Etefia and Femi Ishola, for the 1^st and 2^nd Defendant 

Ikenna Okoli (SAN) with S.C Ndudim, B.E Utomi and W. Shimave, for the 3^rd Defendant

 

JUDGMENT

Introduction and Claims:

1.  The Claimant filed this suit on the 30^th day of June 2020, via a General Form of Complaint. The Claimant seeks against the Defendants, the following reliefs: 

 

 

 

 

4. A DECLARATION that the abrupt and arbitrary termination of the Claimant's appointment with the 1^st Defendant without following the mandatory due process set out in the 1^st Defendant's handbook and other bye-laws of the 1^st Defendant was in breach of the Claimant's rights protected by the Constitution of the Federal Republic of Nigeria, 1999 as amended.
5. A DECLARATION that the actions of the 3^rd Defendant in making unsubstantiated and false allegations against the Claimant which led to the termination of the Claimant's employment with the 1^st Defendant, were malicious, in bad faith and injurious to the Claimant.

 

 

 

ALTERNATIVE RELIEF TO RELIEF 7 ABOVE

 

FURTHER ALTERNATIVE TO RELIEF 7 ABOVE

9. The sum of NI00,000,000.00 being damages against the 2^nd and 3^rd Defendants jointly and severally for unlawfully inducing the termination by the 1^st Defendant vide the 1^st Defendant's letter dated 12 November 2019; and
10. An order that the Defendants issue a written apology to the Claimant for the wrongful termination of her employment.

 

FURTHER ALTERNATIVE TO RELIEF 7

 

2.  In response to the claims, the 1^st and 2^nd Defendants filed their Statement of Defence.  The extant statement of defence is the one dated 22^nd March, 2023. In response to the claims, the 3^rd Defendant’s extant Statement of Defence was filed on 2^nd December 2022.  The Claimant filed a reply dated 16^th June, 2023 to the 1^st and 2^nd Defendants Statement of Defence.  The Claimant’s reply to the 3^rd Defendant’s statement of defence is dated 2^nd May, 2023.   Trial commenced in the suit on 22^nd day of July 2022.  The Claimant gave evidence for herself by adopting her witness statement on oath deposed to on the 15^th day of July, 2020, and her further witness statement on oath deposed to on 8^th March 2021.   The Claimant was thereafter cross-examined by all the Defendants on 21^st June 2023. During the examination in chief, the Claimant tendered in evidence 14 documents, which were admitted and marked as follows:

 

 

S/N	Brief description of the exhibits	Exhibit No.
	Letter of Offer dated 20/01/2015
	Letter of Confirmation of Appointment dated 08/01/2016
	Letter of Offer of Employment dated 25/03/2019
	Letter of Promotion dated 01/04/2019
	Email of 02/10/2019 at 1:07pm
	Email of 02/10/2019 at 6:14pm
	Letter of Termination of Employment dated 12/11/2009
	Staff Handbook of June 2018
	Letter dated 25/11/2019
	Letter dated 28/11/2019
	Letter dated 10/12/2019
	Letter dated 17/01/2020
	Article 30 of the Charter of Fundamental Rights of the European Union
	Norwegian Working Environment Act, 2017

 

3.   On the 25^th day of October, 2023, the 1^st and 2^nd Defendants opened their defence by calling their witness; Victoria Nwaziri (DW1) who adopted her statement on oath dated 12^th May 2023. The witness was thereafter cross-examined on the same day. The DW1 relied on exhibits C1, C2, C3, C5, C7 and C12.  In addition, the DW1 tendered a letter dated 28^th November 2019, which was admitted in evidence and marked as exhibit D1.  On the 10^th of January, 2024, the 3^rd Defendant (DW2) opened his defence by adopting his statement on oath dated 2^nd December 2022.  He was cross examined on the same day.  During the examination in chief, the DW2 tendered an email dated 23^rd July 2020 which was admitted and marked as exhibit D2.  At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Addresses were adopted on 27^th March 2026 and the Court adjourned for judgment. 

THE CASE OF THE CLAIMANT

4.   The Claimant was initially employed by Diamond Bank Plc in 2015 and following the merger/acquisition of Diamond Bank by Access Bank in 2019, she was issued a new employment letter and promoted to Assistant Banking Officer. The Claimant worked as a Lounge Executive at the bank's Xclusive Lounge. On 2^nd of October, 2019, the 3rd Defendant (the director's husband) visited the lounge. He presented an old, non-operational Diamond Bank Xclusive card and upon checking the system, the Claimant found he was not eligible for lounge access under the bank's new "Xclusive Plus" policy. The Claimant politely explained he needed to migrate his account to the new plan. She alleges the 3rd Defendant became irritable, stormed off, made phone calls, and demanded her name. Later that day, the Claimant received a query about being rude to a customer. She responded, denying any wrongdoing. Without further communication, the Claimant was transferred to another office and, after over a month, her employment was terminated on November 12, 2019, with one month's salary in lieu of notice.  It is the Claimant’s case that the 2^nd Defendant (the 3^rd Defendant's wife) used her position as a director to orchestrate the termination as an "emotional" reaction to the incident involving her husband. The 2nd Defendant originated the process to fire her, which constitute an abuse of power.   The termination was wrongful and unfair because it violated the bank's own disciplinary procedures as outlined in the Staff Handbook (which requires suspension and investigation). She was denied a fair hearing, as she was never informed of the outcome of the query, that the alleged "rudeness" is not a disciplinary offence in the Staff Handbook and that decision was actuated by bad faith and malice on the part of the 2^nd and 3^rd Defendants.

CASE OF THE 1^ST AND 2^ND DEFENDANTS

5.   It is the case of 1^st and 2^nd Defendants that not all Diamond Bank staff automatically joined Access Bank and that the Claimant was issued a fresh contract. They highlight Clause 7(a) of Claimant’s employment letter, which states that either party can terminate the contract with one month's notice or pay in lieu. They denied the Claimant's account of the lounge incident. They state that the 3rd Defendant made a formal complaint that the Claimant was rude to him and walked away while he was speaking.  It is their case that the termination was a contractual right exercised under the employment letter, paying her one month's salary in lieu of notice as agreed. They state the decision was not related to the October 2nd incident or the 3rd Defendant's complaint and that the Claimant's reliance on the disciplinary clauses (suspension, investigation) in the Staff Handbook is misconceived. Those procedures apply to disciplinary action for specific offences and that in this case, the bank did not fire her for an "offence"; it simply exercised its contractual right to terminate with notice.  It is their case that the 2^nd Defendant is not involved in, or initiation of, the termination process. They state she was not privy to the employment contract and had no role in the decision. Further, that the Claimant was given a fair hearing regarding the query, as she responded to it.

CASE OF THE 3^RD DEFENDANT

6.  It is the case of the 3^rd Defendant that he visited the lounge and was wrongly told by the Claimant that he was not entitled to access the account, and that he insisted he was, as he had used it recently and that he showed his old card, but the account linked to it was no longer active. After struggling with poor internet, he successfully logged into his mobile app and provided his active Xclusive account number (0025050123). The Claimant then confirmed he was eligible.  The 3^rd Defendant expected an apology for being kept waiting; but instead, the Claimant blamed him for not telling her it was a joint account.  The 3^rd Defendant complained to the bank about the poor service he received in good faith as an aggrieved customer and had no intention of getting her fired.   He had no control over the bank's employment decisions and played no part in her termination and the termination was a decision by the Claimant’s employer (the 1^st Defendant), not him.   It is the case of the 3^rd Defendant that the Claimant has embarked on a vendetta against him due to her termination, filing false allegations to tarnish his image, including writing a petition to prevent his elevation to the rank of Senior Advocate of Nigeria (SAN).

 

THE CLAIMANT’S REPLY TO THE 1^ST AND 2^ND DEFENDANT

7. The Claimant replied that the 3^rd Defendant did not complain through official channels but called his wife (the 2^nd Defendant) directly to make false reports.   The Claimant replied that she did not give false information about the ATM downtime and that she informed the 2^nd Defendant that she had called the ATM Custodian, who did not answer, and she provided the custodian's number when requested.   The Claimant replied that all customers are entitled to professional treatment, only "Xclusive Plus" customers are entitled to preferential treatment and that the 3^rd Defendant, holding a phased-out "Xclusive" account, was treated professionally, not preferentially, which was reason he became angry.  The Claimant replied that the termination was directly related to the October 2^nd incident and provides new particulars alleging that:

1. Her supervisor told her that the 2^nd Defendant (the director) had directed that a termination letter be prepared on the very day of the incident.
2. The Group Head, Mr. Abraham Aziegbe, delayed issuing it to plead on her behalf with the 2^nd Defendant.
3. After a month of the 2^nd Defendant refusing to show compassion, the termination was eventually issued.

The Claimant states that under the Constitution and international best labour practices (e.g EU and Norwegian law), she is entitled to know the reason for her termination. She reiterates that the bank failed to follow its own disciplinary procedures in the Staff Handbook.

THE CLAINMANT’S REPLY TO THE 3^RD DEFENDANT

8.  The Claimant replied that there was no Xclusive account in the sole name "LOTANNA OKOLI." The only Xclusive account was a joint one in the names "LOTANNA AND CHIZOMA OKOLI." The card he initially presented was for a non-Xclusive account. She reiterates that the old Xclusive product was being phased out and customers needed to migrate to Xclusive Plus. The 3^rd Defendant had not migrated, so his old card did not grant him lounge privileges.  The Claimant further replied that she did not keep him standing or deny him service and that she directed a lounge assistant to attend to him while she verified his details, and that the query and termination were a direct result of the false and malicious report made by the 3rd Defendant and also the HR spreadsheet showing the 2^nd Defendant (his wife) as the "Originator" of the termination. She also replied that she did not pursue a vendetta against him, stating she is merely seeking justice for her unjust termination.

SUBMISSIONS ON BEHALF OF THE 1^ST AND 2^ND DEFENDANTS

9.  The 1^st and 2^nd Defendant raised a sole issue for determination as:

The Defendants argue that in a purely contractual master-servant relationship (with no statutory flavour), an employer can terminate employment at any time, for any reason or no reason, provided it follows the terms of the contract. They relied on the case of Francis Adesegun Katto v. Central Bank of Nigeria (1999) LPELR-1677(SC), Peter Onyeachonam Obanye v. Union Bank of Nigeria Plc (2018) LPELR-44702 (SC), and First Bank Plc v. Ibrahim Sani Momoh (2020) LPELR-51517(CA).  They argued that the agreement between the parties (Exhibit C3) allowed either party to terminate with one month's notice or pay in lieu. That the termination letter (Exhibit C7) complied with this term, and the Claimant was paid. They relied on the case of Babatunde & Anor v. Bank of the North Ltd & Ors (2011) LPELR-8249(SC) on the sanctity of written contracts. Further, that the Claimant's reliance on disciplinary clauses (13.0–13.4) in the Staff Handbook (Exhibit C8) is misconceived as those clauses deal with suspension and dismissal for offences, not with "termination with notice," which is a separate contractual right.  Therefore, as the termination was not based on any misconduct, those procedures do not apply.  

10.  The 1^st and 2^nd Defendants argued that the Claimant's allegation that her termination was connected to the October 2, 2019 incident is baseless and that she provided no credible evidence, documentary or oral, to support this link.  They submit that the 1^st Defendant's witness (DW1) deposed that the termination was an exercise of contractual rights and was "not in any way howsoever related to the 02 October 2019 incident or the 3^rd Defendant's complaint." The Claimant sought to compel the production of an HR spreadsheet, but the bank confirmed no such document existed, and the subpoena was discharged. The Defendants argue that the Claimant's allegation remains mere conjecture, and courts cannot act on speculation, relying on C.B.N. v. Okemuo (2018) 15 NWLR (Pt. 1642) 367.  On the issue of fair hearing, the 1^st and 2^nd Defendants argued that the Claimant was issued a query (Exhibit C5) regarding the incident and the ATM issue, and she responded (Exhibit C6) and that this satisfies any requirement for fair hearing regarding the matters in the query.  The 1^st and 2^nd Defendants argued that the Claimant failed to prove her entitlement to the declaratory reliefs and that there is no evidence that the 2^nd and 3^rd Defendants induced a breach of contract. They further argued that in an ordinary master-servant relationship, the only remedy for termination is the amount agreed for notice and that the Claimant was paid this amount. They relied on the case of Odiase v. Auchi Polytechnic, Auchi (2018) LPELR-44015(CA) , Ikoro v. PHEDC (2022) LPELR-59058(CA), and Chukwumah v. Shell Petroleum Dev. Co. of Nigeria Ltd (1993) 4 NWLR (Pt. 298) 512.  The Defendants pray that the Court dismisses the Claimant's suit in its entirety with substantial costs, as she has failed to prove her case on the preponderance of evidence.

SUBMISSIONS ON BEHALF OF THE 3^RD DEFENDANT

11.   The 3^rd Defendant raised three issues for determination as folblows:

1. Was the 3rd defendant, a customer of the 1st defendant, entitled to access and enjoy the benefits of the use of the 1st defendant’s lounge at the Murtala Muhammed Local Airport, Ikeja on 2 October 2019?    
2. If the answer to issue one is in the affirmative, is the 3rd defendant not entitled, like any aggrieved customer, to complain about poor service delivery to the 1st defendant?
3. Did the 3rd defendant induce a breach of the claimant’s contract of employment with the 1st defendant? 

 

12. Issue one - Was the 3^rd defendant, a customer of the 1st defendant, entitled to access and enjoy the benefits of the use of the 1st defendant’s lounge at the Murtala Muhammed Local Airport, Ikeja on 2 October 2019?  The 3^rd Defendant argued that the Claimant's own email response to the query (Exhibit C6) shows she confirmed the 3^rd Defendant had an active Xclusive joint account (0025040123) and that the Claimant’s only issue was a discrepancy in the name presented, not his entitlement. Further, under cross-examination, the Claimant admitted that the Xclusive Proposition was still running and that migration to Xclusive Plus was optional, meaning both operated simultaneously. Exhibit D2 (email from bank official Robert Giles) confirmed the 3rd Defendant was entitled to lounge access as long as the monthly fee was paid and exhibit SW1 (statement of account) showed monthly fees were still being deducted from the joint account, confirming the account was active. The 3^rd Defendant relies on the case of Fashanu v. Adekoya (1974) A.N.L.R. 32 for the principle that documentary evidence is more useful than oral evidence in testing credibility.

13. Issue two - If the answer to issue one is in the affirmative, is the 3rd defendant not entitled, like any aggrieved customer, to complain about poor service delivery to the 1st defendant?  The 3^rd Defendant argued that under Section 130(1)(b) of the Federal Competition and Consumer Protection Act (FCCPA), 2018, a consumer has the right to services of a reasonably expected quality. Under Section 46(1)(a) of the FCCPA, an aggrieved consumer may refer a dispute directly to the service provider. More so, even without statute, it is implied in the contract for services that a customer can report dissatisfaction. The 3rd Defendant argues that he was treated poorly (treated like a "trespasser" despite being entitled to access) and simply made a report. He had no control over the bank's subsequent actions and did not hear about the matter again until the lawsuit was filed. The 3rd Defendant relied on the case of Dematic Nigeria Limited v. Utuk (2022) LPELR-56878 (SC) for the principle that he who asserts must prove.

14. Issue three - Did the 3rd defendant induce a breach of the claimant’s contract of employment with the 1st defendant?  The 3^rd Defendant argued that to induce a breach, there must first be a breach; that the Claimant's employment was terminated lawfully in accordance with her contract, with one month's salary paid in lieu of notice and that lawful termination is not a breach.  The 3^rd Defendant relied on the case of Precedent: Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Part 145) 528 (SC).   The query (Exhibit C5) also concerned an unrelated ATM issue, showing the termination was not solely based on the lounge incident.  Therefore the 3rd Defendant prays the court to dismiss all claims against him with substantial costs, as they are vindictive and lack merit. He asks the court to hold that he was entitled to use the lounge, was entitled to complain, and did not induce any breach of contract.

 

SUBMISSIONS ON BEHALF OF THE CLAIMANT

15.  The Claimant raised a sole issue for Determination as;

The Claimant argued that since the 3^rd Defendant claimed he was entitled to lounge access, the burden of proving this positive assertion lies on him, relying on Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326 and Lasisi Babalola Omoroga & Ors. v. Governor of Lagos State & Ors (2018) LPELR-49866 (CA).  Further, that exhibits C5 and C6 (the query and response) show the 3^rd Defendant initially provided four non-eligible account numbers. That the joint account he later provided was still on the old, inoperative Xclusive Proposition, not the active Xclusive Plus.  The Claimant argued that exhibit SW1 (Statement of Account) was "dumped" on the court. That it was produced via subpoena after the 3^rd Defendant had closed his case, with no witness to explain or link it to his case. The Claimant relied on the case of White Truth Investment Limited v. Mr Lawrence Alobi & Ors (2022) LPELR-58568 (CA), Action Congress v. Lamido (2012) 8 NWLR (Pt. 1303) 560, and Aliucha v. Elechi (2012) ALL FWLR (Pt.625) 237 on the need to link documents to a case and not engage in cloistered justice.  The Claimant argued that exhibit D2 (Email from Robert Giles) was procured after the lawsuit was filed (July 2020, suit filed June 2020). The Claimant argues it is inadmissible under Section 83(3) of the Evidence Act, 2011 as a statement made by an interested person during pending proceedings. Even if considered, no probative value should be given to it under Section 34(1)(a) of the Evidence Act. The Claimant relies on NIPC Ltd v. The Thompson Organisation Ltd (1969) ALL NLR (Reprint) 134 to argue the document should be expunged.

16.   The Claimant argued that under cross-examination, the 3rd Defendant admitted that; "I am not an XclusivePlus customer, so I don't know what is given to XclusivePlus customers." This is a crucial admission against interest, confirming he was not entitled to the premium services. The Claimant relied on the case of Adeboye v. Baje (2016) LPELR-40578(CA) and Eva Anike Akomolafe & Anor. v. Guardian Press Limited (Printers) & Ors (2010) LPELR-366 (SC) on the effect of admissions against interest and evidence elicited under cross-examination.  The Claimant argued that the 1^st Defendant failed to follow its own disciplinary procedures in the Staff Handbook (Exhibit C8), specifically Clauses 13.0–13.4, which require suspension and investigation before sanctioning an employee. The bank did not follow this process. More so, while the Claimant was given a query (a hearing), she was not given a fair hearing. The outcome of the query was never communicated, and her supervisor (Chinwe Omaghomi) was biased. The Claimant relies on Hon. Justice Kayode Bamisile v. National Judicial Council & Ors (2012) LPELR-8381 (CA), which distinguishes between a mere hearing and a fair hearing based on the impression of a reasonable observer.  The Claimant submits that under cross-examination, the 1st Defendant's witness (DW1) admitted: (a) she did not witness the alleged rudeness, (b) rudeness is not a ground for termination in the Staff Handbook, and (c) the outcome of a query should be communicated. The Claimant invokes Sections 36 and 254C(1)(d), (f), and (h) of the 1999 Constitution and Section 7(1)(a) and (6) of the National Industrial Court Act, 2006, which empowers the court to apply international best practices in labour matters. The Claimant argued that the old common law rule (allowing termination for any or no reason) is outdated. International best practice, as reflected in Article 4 of the ILO Termination of Employment Convention, 1982 (No. 158) and ILO Recommendation No. 166, requires a valid reason for termination.   The Claimant relies on several National Industrial Court decisions that have adopted this standard such as 

• Bello Ibrahim v. Eco Bank Plc (Suit No. NICN/ABJ/144/2018) , where the court held that employers must now justify every termination, as the old common law rule is not in tune with modern global best practices.
• Mr. Ojerinde Olakunle Alani v. Action Energy Limited (Suit No: NICN/ABJ/290/2021), where the court held termination without reason is unjustified.
• Afolayan Aderonke v. Skye Bank (Suit No. NICN/IB/08/2015) and Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc (2015) 58 NLLR 92 .

The Claimant argues that the 1st Defendant's unilateral payment of one month's salary does not negate her claim and that the case is not about that payment, but about the breach of fair hearing and unjustified termination. More so that the payment was not proven to be contemporaneous with the termination, relying on the case of Chukwumah v. Shell Petroleum Nigeria Limited (1993) LPELR-864 (SC).  The Claimant submits that the actions of the 2^nd and 3^rd Defendants were malicious, oppressive, and an abuse of power, causing her emotional and financial hardship, including stigma hindering re-employment. She seeks exemplary damages to punish this conduct, by relying on the case of G.T.B. Plc v. Imananagha (2024) 5 NWLR (Pt. 1930) 61 C.A., which allows exemplary damages where conduct is outrageous and discloses malice.

1^ST AND 2^ND DEFENDANTS' REPLY ADDRESS 

17.  The 1^st and 2^nd Defendants replied that the Claimant's failure to challenge several key points in their original Final Address amounts to a concession, relying on the case of Hon. Kehinde Odebunmi & Anor v. Ojo Oyetunde Oladimeji & Ors (2012) LPELR-15419 (CA) and Nwankwo & Ors v. Yar'adua & Ors (2010) LPELR-2109 (SC).  On the alleged admissions by DW1, the 1^st and 2^nd Defendants state that the correct records show the DW1’s full response to be; "...my statement at my paragraph 19 that the Claimant was rude is not based on my being there. It is derived from records available to me." They argue this is not an admission of a falsehood but an explanation of the source of her information.  On the issue of application of ILO Conventions and International Best Practices, the Defendants replied that the Claimant confuses "termination" (a mutual right under contract) with "dismissal" (a disciplinary action). They relied on the case of Bank of Agriculture Limited v. Iyama P. Gordy (2021) LPELR-53822(CA) to distinguish the two.  They replied that Article 4 of ILO Convention 158 requires an employer to have a valid reason, not necessarily to give one. The contract itself (Exhibit C3) provides a valid reason: the right to terminate with notice/pay.  They replied that the ILO Convention 158 has not been ratified by Nigeria and is therefore unenforceable; as under Section 12 of the 1999 Constitution, treaties must be enacted into law by the National Assembly to have force of law. They cited Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228 and Ray Nnaji v. Nigeria Football Federation & Anor (2010) LPELR-4629(CA).  They distinguished the cases of Bello Ibrahim v. Eco Bank Plc and Mr. Ojerinde Olakunle Alani v. Action Energy Limited, noting that in those cases, the employers did not comply with the contract (e.g., no notice or pay), unlike here where the Claimant was paid in lieu of notice.  On the issue of Claimant's entitlement to the reliefs and damages, they replied that the Claimant failed to prove her entitlement to declaratory reliefs, which carry a heavier burden and that she must succeed on the strength of her own evidence, not on the weakness of the defence. They cited the case of Mrs. M. Adama & Ors v. Kogi State House of Assembly & Ors (2019) LPELR-47424(SC) and Christian Soronnadi & Another v. Aruji Durugo & Another (2018) LPELR-46319 (SC).  On the issue that the Claimant could not secure another job, they replied that the termination does not carry a stigma under Section 48(4) of the Banks and Other Financial Institutions Act (BOFIA), as it was not for fraud or dishonesty.   

3^RD DEFENDANT'S REPLY ON POINTS OF LAW 

18.  On the issue of 3^rd Defendant's entitlement to the lounge, the 3rd Defendant replied that the Claimant's entire argument on this issue is an attempt to mislead the court, as her own evidence (Exhibit C6) and her testimony under cross-examination confirm he was entitled to use the lounge. The 3^rd Defendant relied on the case of Adegbite v. Amosu (2016) 15 NWLR (Part 1356) 405 and Yoye v. Olubode (1974) 10 S.C. 145 for the principle that counsel's address cannot take the place of evidence.  On the issue of exhibit SW1 (Statement of Account) being dumped, the 3^rd Defendant replied that exhibit SW1 was not "dumped" on the court. It was tendered by a bank officer via subpoena to back up his oral evidence that Xclusive charges were deducted from his account, confirming his active Xclusive status.   On the admissibility of exhibit D2 (Email from Robert Giles), the 3rd Defendant replied that Exhibit D2 is admissible and that Section 83(3) of the Evidence Act does not apply. He relied on High Grade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Part 167) 290.   On the alleged admission by the 3rd Defendant, he replied that his cross-examination answer was not an "admission against interest."  He was asked if he on the 2^nd of October 2019 he did not have a Visa Signature Card when he went to the lounge; to which he replied that he was not an XclusivePlus Customer and does not know what is given to XclusivePlus customers.  The 3^rd Defendant submits that his response is consistent with his case and is not an admission of ineligibility, as the Claimant herself confirmed that both Xclusive and XclusivePlus packages ran concurrently.  

COURT’S DECISION

19.  I have gone through the processes filed in this suit, the evidence of the witnesses and the exhibits tendered by the parties.  I have also considered the issues raised by the parties and their submissions in respect thereof.  I find the following issues apt for determination:

1. Whether exhibit D2 is inadmissible as having been made while this suit was pending?
2. Whether the 3rd Defendant was entitled to access and use the 1st Defendant's lounge on 2nd October 2019, and whether his complaint to the 1st Defendant was malicious or made in bad faith?
3. Whether the termination of the Claimant's employment by the 1st Defendant was wrongful, unfair, or in breach of the Staff Handbook and the Claimant's right to fair hearing?
4. Whether the 2nd and 3rd Defendants unlawfully induced the breach or termination of the Claimant's contract of employment?
5. Whether the Claimant is entitled to any of the reliefs sought.

20.   Issue one - Whether exhibit D2 is inadmissible as having been made while this suit was pending?  The 3^rd Defendant is the party that tendered exhibit D2.  At the point of tender, there was no objection to the document.  The Claimant raised an objection to the admissibility of exhibit D2 on the ground that it was made during the pendency of this case by a person (i.e. 3^rd Defendant) who has an interest, in violation of the provisions of Section 83 (3) of the Evidence Act 2011.  Section 83(3) of the Evidence Act provides that, “nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”   Though the document was not objected to by the Claimant at the point of tender, it is trite that where the Court wrongly admits a document in the course of trial, it is the duty of the judge at the stage of writing a judgment to expunge such a document from its record. The Court has the power to expunge the inadmissible evidence. See the cases of Nigeria Bank for Commerce and Industry v. Ogbemi & Anor, Suit No: CA/J/93/2006, a judgment delivered on 25^th May, 2012. Hashidu & anor v Goje & Ors [2003] LPELR 10310 CA; Metalimplex v A.G Leventis & Co Ltd [1976] 2 SC 91. In the case of Agbaje v Adigun [1993] 1 NWLR (Pt. 269) 261, the Apex Court held that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the Court can make a finding of fact. See also the case of Inyang v Eshiet [1990] 5 NWLR (Pt. 149) 178. See Elder Achuba Simon v. The Governor of Kogi State Suit No. NICN/ABJ/244/2019 judgment of 4^th November 2020.  In the case of Enwerem v Abubakar and Anor (CA/A/351/2013) [2016] NGCA 56 (18 April 2016), the Court held as follows:

As earlier pointed out the respondents did object to the admissibility of Exhibit P2, but even if they didn't, It is trite law that the admissibility of documents without objection does not foreclose the power of the court to expunge them from its record as exhibits, or discountenance same in its judgment; See the case of Okafor v. Okpala (1995) 1 NWLR (Pt. 374) 749 at 758, where this court held:

"It is a matter of common sense and good practice, for a trial judge who had wrongly admitted certain evidence and on further consideration of the controversial evidence to expunge it in line from the record where he is properly addressed on the issue, if he is satisfied that such evidence was erroneously admitted,"

The clear provision of the law in this case is that a court of law can only determine an issue on legally admissible evidence, not on evidence made inadmissible by provisions of the Evidence Act,

It is for this reason that the Supreme Court held in I.B.W.A. v. Imano Ltd, (2001) 3 SCNJ 160 at 177 that:

"It cannot be over-emphasized that a court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly, where a trial court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and   discountenance the document even though learned counsel at the trial did not object to its admission in evidence".

21.  Indeed, from the facts available, this suit was filed on the 30th of June 2020.  Exhibit D2 was written on the 23rd day of July 2020; after this suit had been filed, the processes served, and appearance entered on behalf of the Defendants.   Reading through the content, it was clearly written in response to this suit.  I find that it offends the provision of section 83(3) of the Evidence Act.   Having been inadvertently admitted, exhibit D2 is hereby expunged from these proceedings.

22.  Issue two - Whether the 3rd Defendant was entitled to access and use the 1st Defendant's lounge on 2nd October 2019, and whether his complaint to the 1st Defendant was malicious or made in bad faith?   This issue requires the Court to determine two sub-issues:  

• Whether the 3rd Defendant was entitled to use the lounge on the material date; and
• Whether his complaint to the 1^st Defendant was malicious or made in bad faith.

23.  Regarding the 3rd Defendant's entitlement, the evidence before this Court shows that the 3^rd Defendant was entitled to use the lounge on the material date.   From exhibit C5 - query with respect to the incident leading to this suit, no issue was raised suggestive to the 3^rd Defendant not being qualified to use the 1^st Defendant’s lounge.   From exhibit C6 - the Claimant's own email response to the query dated 2nd October 2019, did not establish that the Claimant was not entitled to the use of the lounge.  Even though the claimant in her pleadings and evidence claimed inter-alia that the 3rd defendant’s account number 0025040123 which is a joint account in the names of Lotanna C and Chizoma Okoli was subscribed to the old Xclusive Proposition and needed to be migrated to the XclusivePlus Proposition so that he could enjoy all the benefits, evidence on record shows that Xclusive Proposition account holders continued to enjoy access and benefits of the lounge alongside XclusivePlus Proposition account holders.  During cross-examination of the claimant as CW1, the Claimant confirmed that the Xclusive Proposition was in operation as at 2/10/19; and that she was aware that migrating from the Xclusive Proposition to the Xclusive PropositionPlus was optional.  It is clear therefore, that the 3rd Defendant did possess an active Xclusive account (0025040123) and was qualified to access the lounge at the time he did.  The difficulty the Claimant encountered with Claimant’s name or account number, does not detract the fact that the Claimant was qualified to use the lounge when he sought to use it.  

24.  Regarding the nature of the 3rd Defendant's complaint, I agree, as submitted by the 3^rd Defendant, that the law recognizes the right of a consumer to complain about unsatisfactory service. Section 130(1)(b) of the Federal Competition and Consumer Protection Act (FCCPA), 2018 provides that a consumer has a right to performance of services in a manner and quality that reasonable people are generally entitled to expect. Section 130 FCCPA:

(l) When an undertaking agrees to perform any service for or on behalf of a consumer, the consumer has a right to-

(a) the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;

(b) performance of the services in a manner and quality that reasonable persons are generally entitled to expect;

(c) the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if the goods are required for the performance of the services; and

(d) the return of any property or control over any property of the consumer …

 

25.  Under the Federal Competition and Consumer Protection Act (FCCPA) 2018, any aggrieved person (consumer or otherwise) is entitled to lodge a complaint directly with the establishment, and if unresolved, escalate it to the Federal Competition and Consumer Protection Commission (FCCPC). Therefore, if the 3rd Defendant felt the service rendered to him was not appropriate or up to the expected standard, it was within his right to complain to the establishment.   I do not think the 3rd Defendant should be deprived this right, simply because his wife is a director, in the establishment.  In addition, I find no evidence whatsoever that the 3rd Defendant's complaint was malicious or made in bad faith. The fact that his wife is a director of the 1^st Defendant does not deprive him of his rights as a customer. I find and hold that the 3^rd Defendant was entitled to access and use the 1^st Defendant's lounge on 2nd October 2019, and his complaint to the 1st Defendant when he felt he did not receive a fair service, was a legitimate exercise of his rights as an aggrieved consumer.

26.  Issue three - Whether the termination of the Claimant's employment by the 1st Defendant was wrongful, unfair, or in breach of the Staff Handbook and the Claimant's right to fair hearing?   This issue lies at the heart of the Claimant's case. The Claimant contends that the termination of her employment was wrongful, unfair, and in breach of the 1^st Defendant's Staff Handbook and her right to fair hearing. The 1^st Defendant counters that the termination was a lawful exercise of its contractual right under Exhibit C3.  It is not in dispute that the Claimant's employment was governed by the letter of offer dated 25th March 2019 (Exhibit C3). Clause 7(a) of that letter provides that; "Either party may give the other one month's notice to terminate the employment or one month's pay in lieu of notice." This clause confers on either party the right to terminate the employment relationship upon giving one month's notice or paying one month's salary in lieu thereof.  The 1^st Defendant issued a letter of termination dated 12^th November 2019 (Exhibit C7) effective 13th November 2019, and paid the Claimant one month's salary in lieu of notice in the sum of N373,404.15.  This, on its own, strictly meets the terms provided in the Claimant’s employment.  The Claimant, in challenging her termination places reliance on Clauses 13.0 to 13.4 of the Staff Handbook (Exhibit C8) and argues that rudeness, is not an item for disciplinary procedures. However, it is clear that the 1^st Defendant did not follow the route of disciplinary rules in bringing the Claimant’s employment to an end.  Therefore, clause 13.0 to 13.4 is inapplicable to this case.  The termination of the Claimant's employment was not a disciplinary sanction. It was not based on a finding of misconduct. The query issued to the Claimant (Exhibit C5) related to two issues: her conduct towards the 3^rd Defendant and her failure to report an ATM downtime. She responded to the query (Exhibit C6). The 1^st Defendant did not pursue the disciplinary route; it did not convene a disciplinary panel, did not make a finding of guilt, and did not impose a disciplinary sanction such as suspension or dismissal. 

27.  The Claimant made extensive submissions on international best practices, relying on Article 4 of ILO Convention No. 158 and decisions of this Court in Bello Ibrahim v. Eco Bank Plc NICN/ABJ/144/2018 and Mr. Ojerinde Olakunle Alani v. Action Energy Limited NICN/ABJ/290/2021. This Court has taken the position that ILO Convention 158 – Termination of Employment Convention 1982, though un-ratified, is evidence of international best practice as rightly pointed out by the Claimant.   See Mrs. Oghenero Ozobeme v. Total Exploration and Production Nigeria limited (Total E & P) SUIT NO: NICN/LA/58/2021 judgment delivered on 22^nd April 2024.  Article 4 of Convention 158 relied upon by the Claimant provides as follows:

The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

28.  Be that as it may, Convention 158 made other provisions aimed at ensuring that this convention enthrones practices that are fair to all the parties, at all times.  Article 8 provides that a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.  Article 9 provides a guide for the Court, to examine the reasons given for the termination, or where no reasons were given, other circumstances relating to the case, to determine whether the termination is justifiable.  Article 9 provides as follows:

 

Article 9

1. The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.
2. In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities:

(a) the burden of proving the existence of a valid reason for the termination as defined in Article 4 of this Convention shall rest on the employer;

(b) the bodies referred to in Article 8 of this Convention shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice.

29.  It is to Article 9(2)(b) that I turn to determine, on the reason for the termination having regard to the evidence provided by the parties.  Though the 1^st Defendant did not follow the procedure under paragraph 13 of its Staff Handbook on disciplinary procedures, the query issued to the Claimant (Exhibit C5) related to two issues: her conduct towards the 3^rd Defendant and her failure to report an ATM downtime. She responded to the query (Exhibit C6).  The 1^st Defendant did not pursue the disciplinary route; it did not convene a disciplinary panel, did not make a finding of guilt, and did not impose a disciplinary sanction such as suspension or dismissal. Instead, over a month later, it exercised its contractual right to terminate the employment with notice.  The Claimant is obviously aware of the reason for her termination.   She had stated as follows, in her evidence:

33.       The Claimant avers that the termination of her employment is directly connected to the events of 2^nd October, 2019 when she attended to the 3^rd Defendant in simple compliance with the 1^st Defendant’s policy at the Xclusive Lounge, by encouraging the said 3^rd Defendant who was not eligible for the premium services of the XclusivePlus Proposition, to migrate to that Proposition so as to be accorded all the benefits of the Proposition but the said 3^rd Defendant made a false report to the 1^st and 2^nd Defendants against the Claimant.

34.       The Claimant further avers that even though the 3^rd Defendant was not eligible for the premium services of the XclusivePlus Proposition in the Lounge, she had exercised her discretion to ensure that the 3^rd Defendant was attended to very warmly and accorded the benefits of the Lounge while she sought to confirm his status from the 1^st Defendant’s records.”

30.  However, from parties’ evidence, the 3^rd Defendant never asserted that he was on XclusivePlus proposition, and the Claimant confirmed that the Xclusive Proposition was running simultaneously with the XclusivePlus Proposition.  I have already found under the 2^nd issue set down for determination, that the 3^rd Defendant established that he was entitled to use the lounge at the time he went to the lounge.  The Claimant during cross examination, did not remember when asked certain details of her interaction with the 3rd Defendant.  There are also inconsistencies in the Claimant’s evidence.  For instance in paragraph 21 of her statement on oath she stated inter-alia that:

 

“At this point, the 3rd defendant who had followed me to my desk became irritable and stormed away from me”. 

 

But under cross-examination, the Claimant stated as follows:

Question: The 3rd defendant did not at any time show he was irritable or walked away angrily.

 

Answer: All I observed is that when his flight was called and he was leaving the lounge and I wished him a nice day, he did not respond.

 

Based on the above, and relying on Convention 158, clause 9(1) and 9(2)(b), I am able to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties; and that the Claimant was terminated for her behaviour towards a customer of the 1^st Defendant.  In terminating the Claimant, the 1^st Defendant duly complied with its contract with the Claimant.  In the light of the queries issued to the Claimant and response thereto, and the later compliance with the contractual terms, it will be unfair to hold the 1^st Defendant liable to the Claimant for the termination.   The provisions of the ILO Convention 158; serves to uphold fair labour practices, both for the employer and the employee in its article 9.  I find no breach in the termination of Claimant’s employment.

 

31.  Issue four - Whether the 2^nd and 3^rd Defendants unlawfully induced the breach or termination of the Claimant's contract of employment?  The Claimant alleges that the 2nd and 3rd Defendants unlawfully induced the breach or termination of her contract of employment. This is a serious allegation that sounds in the tort of inducement of breach of contract.  The essential ingredients of the tort of inducing breach of contract are well established. In Nissan (Nig.) Ltd. v. Yoganathan (2010) 4 NWLR (Part 1183) 135 at 153-154, the Court of Appeal held that where a third party knowingly and without justification facilitates or intentionally induces the breach of a contract between contracting parties, he will be liable for inducing the breach of the contract.  The Claimant must prove: (i) the existence of a contract between the Claimant and the 1^st Defendant; (ii) a breach of that contract by the 1^st Defendant; (iii) the 3^rd Defendant's knowledge of the contract; (iv) the 3^rd Defendant's intention to induce a breach; (v) actual inducement; and (vi) loss suffered as a consequence.  The Supreme Court in Sparkling Breweries Ltd v Union Bank (2001) 15 NWLR (Pt 737) 539 at 560 – 561 stated the elements that constitute the tort of unlawful interference per Michael Ekundayo Ogundare JSC:

The tort, of unlawful interference with the business of another consists in one person using unlawful means with the aim and effect of causing damage to another. To constitute the tort the means used must be unlawful otherwise the tort is not established. As viscount Redcliff put it in J.T Stratford & Son Ltd. v. Lindley (supra) at pages 328 – 329 of the report: 

“The case comes before us as one in which the defendants have inflicted injury on the plaintiffs in the conduct of their business and have resorted to unlawful means to bring this about. It cannot be denied that to induce breaches of contract is to employ unlawful means. If the defendants were within the protection of Section 3 of the Trade Dispute Act their interference with their members’ contracts of employment would not in itself be wrongful or unlawful, but even so, the procuring of the breaches of the hiring contracts would be against them; and where, as here, there does not appear to be even a trade dispute in contemplation of which Defendants can be said to have acted, they have two sets of tortious or unlawful acts which the plaintiffs can pray in aid against them”

32.  For an action to be maintained for the tort of inducing breach of contract, there must have been an actual breach of the contract in question and the breach must be as a result of the non-party’s inducement. It is not enough that a non-party induced a party to a contract if the inducement did not in fact result in a breach by the induced party.  In Palmer Birch (a partnership) v Michael Lloyd, Christopher Lloyd [2018] EWHC 2316 the English court clarified that:

Inducing a breach of contract is a tort of secondary liability. Without primary liability on the part of the contract-breaker, whose breach of contract the defendant has induced or procured, there can be no such secondary, tortious liability on the part of that defendant.

Even if there had been a breach (which I have found there was not), the Claimant has failed to prove that the 2^nd or 3^rd Defendants took further steps after the complaint about poor service, to secure the Claimant’s termination.  The 3rd Defendant in his testimony which was not contradicted or discredited, testified inter-alia thus: 

It was not my desire, in reporting my experience, that the claimant be relieved of her job as this was of no interest to me. My interest was in bringing to the attention of the Bank (1st defendant), the bad service which I honestly believed that I had received.

I find that the Claimant has failed to prove that the 2^nd and 3^rd Defendants induced any breach of her contract of employment.

 

33.  Issue five - whether the Claimant is entitled to any of the reliefs sought?  From the resolution of issues two – four, it follows that the Claimant is not entitled to any of the reliefs sought. The Claimant’s suit fails in its entirety.

Parties are each to bear their costs for this action.

 

Judgment is entered accordingly.  

 

 

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Hon. Justice (Prof) Elizabeth A. Oji