IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: 12TH OF MAY, 2020 SUIT NO.: NICN/ABJ/169/2018
MR. BADAIKI MATTHEW IRIA …………. CLAIMANT
CENTRAL BANK OF NIGERIA …………. DEFENDANT
Veronica Ndanusa with her is C.N.Udekwe, P.U.Okafor, AmaechiUche Grace Benson, Ike Augustine Jennifer Ogobegwu for the claimant.
AuduAnuga with him NkechiUdeze,KigaiZontong, Daniel Abah, BlessingIfeanyi, MayowaFamu, Patrick Omodia, Jane Emenike, Fatimah Mohammed for the defendant.
1. The claimant in this case took out a Complaint in this Court on the 19th of June, 2018, wherein he is seeking for the following reliefs against the defendant viz-
1.A declaration that the claimant was an Assistant Director in the employment of the Defendant at the time the claimant was retired by the defendant.
2. A declaration that the claimant had not attained the sixty (60) year age or served for thirty-five (35) years in the defendant Bank or elsewhere in the public service of Nigeria before the defendant retired the claimant from the defendant’s service.
3. A declaration that the retirement of the claimant from the defendant Bank by the defendant amounts to removal from the defendant Bank.
4. A declaration that the retirement/removal of the claimant from the defendant Bank was not by or with the approval of the Board of Directors of the Defendant Bank.
5. A declaration that at the time the claimant was retired from the defendant Bank, there was no Board of directors and meeting or decision or resolution of the defendant’s Board of Directors as to the retirement of the claimant.
6. A declaration that the claimant’s retirement from the defendant’s service was unjustifiably premature and therefore unlawful, wrongful and contrary to law and international best practices and is therefore invalid, null and void and of no effect whatsoever.
7. A declaration that the retirement of the claimant by the defendant from the defendant Bank constituted an unfair labour practice and contrary to international labour standard and therefore unlawful and illegal.
8. A declaration that the claimant has a legitimate expectation interest in being in the service of the defendant Bank until he attains the sixty (60) years or retirement or he has served for thirty-five (35) years in the Defendant Bank.
9. A declaration that the defendant’s management cannot lawfully retire the claimant from the service of the defendant without approval of the defendant’s Board of Director.
10. A declaration that in particular the decision of the defendant’s management to retire the claimant is wrongful, unlawful, invalid, null and void and incapable of having any legal consequence.
11. A declaration that any purported implementation of the said decision of the defendant’s Management retiring the claimant from the services of the defendant is ineffective, unlawful and null and void.
12. A declaration that the claimant is still in the serviceof the defendant and entitled to all his salaries, allowances emoluments and benefits.
13. An order of Court setting aside the retirement of the claimant by the defendant.
14. An Order of Court directing the reinstatement of the claimant to the service of the defendant in accordance with the extant laws.
15. In the alternative to the foregoing the claimant claims the sum of N4, 657, 430,70 being the amount due and owing to the claimant as at 18th June, 2018.
16. Interest on the said sum of N4,657,430.70at the rate of 21% per annum or at such other rate of interest at the Court may adjudge to be fair and just.
17. In further alternative to claim (14) the claimant also claims the sum of N89,422,669 .36 being special damages suffered by the claimant as a result of the wrongful retirement of appointment.
18. In the alternative an order directing the payment of all entitlements accruing to the claimant until he attains the retirement age of 60 years or 35years in service in the sum of N89,422.669.30 being Arrears of salaries, allowances and emoluments and interest on the said sum at the rate of 21% per annum until judgment, and thereafter 7% till liquidation of the judgment debt.
19. In further alternative,an order of Court directing the defendant to pay to the claimant all the salaries, allowances and all benefits due and payable to the claimant from the date of the claimant’s purported retirement till the date the claimant is lawfully exited from the defendant Bank.
20. General damage of N200,000,000 (Two Hundred Million Naira).
21. Cost of this action in the sum of N2,000,000.00 (Two Million Naira).
2. It is the claimant’s case that he was employed by the defendant on the 22nd of February, 1989 as Senior Supervisor. He averred that he rose through different positions to become the Assistant Director in the Development Finance office of the defendant. He stated that on the 23rd of March, 2018 he received a letter dated 20th of March, 2018 from the defendant retiring him from its service with immediate effect and with the sum of N1,187,483.73 (One Million, One Hundred and Eighty Seven Thousand Four hundred and Eighty three Naira, Seven Three Kobo) as his three months’ salary in lieu of notice of retirement. He continued that he was not issued the mandatory statutory notice. He stated that by a letter dated 5th of April, 2018, he wrote to the defendant to reconsider their decision but by a letter dated 2nd of May, 2018 they declined his request alluding to the fact that the claimant committed some misdemeanors. He went on to statethat at the time he was unlawfully retired the Board of Directors of the defendant was not constituted, was inquorate, did not hold any meeting, take any decision or resolution on the claimant ‘s premature retirement and did not approve the retirement of the claimant.His grouse therefore is that his compulsory retirement with defendant did not comply with the extant laws and procedures regulating his employment, as he has not attained the age of sixty years and therefore unlawful.
3. The defendant in response filed its statement of defence on the 15th November, 2018. By an amended statement of defence on the 9th of July, 2019 the defendant pleaded that the retirement of the claimant was preceded by a central disciplinary procedure in which he was indicted for negligence of duty and failure to meet an acceptable standard of efficiency in instructing his subordinate to cash his cheques without asking how he was able to do so and without a letter of authorization from him. That the claimant is aware of the reason of his retirement as he was indicted in a case of imitation/forgery of his signature by his subordinates and rather than terminate his employment as provided under the defendant’s manual the defendant converted the termination to retirement.It averred further that the claimant is not entitled to the statutory notice of three months upon his refusal to accept the internal voucher for the payment of his three months’ salary in lieu of notice, the sum of N1,187,483.73 was paid into his bank account as his three months’ salary in lieu thereof. The defendant pleaded that the retirement of the claimant was done in compliance with the extant laws and procedure as he was afforded fair hearing when he was issued a query on the 28th of September, 2017,invited by the special investigation panel and the Central Disciplinary committee. That the non-Constitution of its Board of Decision does not inhibit its operation and any disciplinary decision which includes retirement of the claimant can be taken by the defendant in the absence of its Board of directors and subject to ratification by the Board upon its Constitution.It averred that the claimant is not entitled to his claims.
4. It is settled law that a declaratory relief cannot be granted upon admission of the defendant in the pleadings and/or without the plaintiff giving oral evidence as submitted by the learned claimant’s counsel. However, the above principle is not without exception. In the instant case, the declarations sought are by way of complaints andparties on the 9th of October, 2019 by their express consent orally applied to the Court to decide this suit vide the records before the Court pursuant to Order 38 Rule 33 of the National Industrial Court of Nigeria Rules, 2017.By their agreement, parties will dispense with the need for oral testimony and or cross examination. All that the Court will consider is their written testimony on oath, pleadings and documents frontloaded by both parties on record. Parties by this Rule will be required to file final written addresses.By Order 38 Rule 33(2) the claimant files his final written address first, then the defendant will file and then the claimant will file a reply on point of law, Parties written addresses will be based on the documents frontloaded and pleadings.
5. The claimant on the 26th of November, 2019 filed his written address and counsel on his behalf raised the following four issues for determination thus;
a. Whether the claimant is entitled to the declarations sought in reliefs 1-12 of his claims.
b. Whether the defendant exhausted the disciplinary due procedure provided in the reviewed human resource policy and procedure manual of the defendant.
c. Whether the defendant was justified in its decision to compulsorily retire the claimant.
d. Whether the claimant is entitled to the monetary reliefs sought against the defendant in the circumstances.
6. On issue one, learned claimant’s counsel submitted that the relief sought should be proven with substantial evidence and the claimant in this suit has established same to prove that he was subjected to disciplinary action without proper procedure and the outcome was not communicated to him nor did he have the chance to appeal the decision to terminate and convert his appointment to retirement. It is counsel’s position that the defendant has a duty to justify the reasons given for the termination and or conversion on the reasoning that his employment is statutorily flavoured. He also stated that there was no evidence to show that the claimant was indeed negligent as alleged by the defendant and that the termination and conversion of the claimant’s employment violates Article 4 of the ILO Convention 1982 on Termination of Employment. He urged the Court to so hold.
7. On issues two and three argued together, counsel submitted that the procedures as provided for in paragraph 18.104.22.168 (B) (v) the defendant’s Manual were not followed by the defendant. He stated that the combined effect of paragraph 6.5.1, 6.5.2 and 6.5.3 is that after the investigative panel, the report of the investigation is forwarded in the first instance to the department of the employee where if the issue is unresolved, it is sent on recommendation to the Branch and after review and still unresolved the case is then forwarded to the central disciplinary committee being the highest and final disciplinary body of the defendant and thereafter the staff can appeal to the Director Human Resources, the DG (CS) or the Governor as the case may be. It is counsel’s contention that in this instant case, after the investigation panel report, the branch disciplinary committee was set up without first exploring the departmental option. That without waiting for the Branch disciplinary committee, the central disciplinary committee usurped their powers and jettisoned their recommendation in breach of the rules of natural justice.That the claimant was not given the report of the investigative panel and no form of notice was issued to him that his employment was about to be brought to an end. He cited the case of Ewarami v African Continental Bank Ltd  SC 99. It is counsel’s position that the same person who indicted the claimant was among those who sat against him at the central disciplinary committee and rejected the answer to the query by the claimant and hence has established bias against the committee. Counsel equally stated that evidence shows that the retirement letter was not duly signed or ratified by the appropriate authority that is the Board of the defendant pursuant to Section 14(4) Central Bank Act and therefore in contravention of his contract of employment. He cited in support the cases of Ashibogun v Afprint Nigeria Ltd  HCNLR 400; University Teaching Hospital Board of Management v Nnoli  8 NWLR (Pt 363) 374and urged the Court to so hold.
8. Regarding issue three, it is the position of learned claimant’s counsel that claimant having proven that the disciplinary process against him is unlawful and the fact that he rejected the purported 3 months’ salary in lieu of notice of retirement is still in active service of the defendants and or in the alternative, entitled to monetary claims against the defendant. He cited the case of Ogbaje v Abuja Investment and property development Company Ltd  LPELR 26055 SC. Counsel submitted that it is not in dispute that the said 3 months’ salary in lieu of notice had been deposited into an account and without use by the claimant. He stated that the claimant is entitled to the sum claimed as damages amounting to his salaries and entitlements for the unexpired terms of his appointment with the defendant. He relied on the case of Uwagbanebi v Nigeria Palm Produce Board  3 NWLR (Pt 29) 489.Counsel urged the Court to hold in favour of the claimant.
9. The defendant on the 4th of January, 2020 filed its final written address wherein counsel on its behalf raised six issues thus;
1. Whether the retirement of the claimant was valid having regard to the contract of service.
2. Whether the claimant has established that the defendant’s decision to retire him from the defendant’s service was void under its enabling Act.
3.Whether the claimant who had submitted to the operations of the defendant while in active service during the period it was without a board, is not estopped from complaining about the defendant’s exercise of its power when he was retired.
4. Whether the claimant has established the applicable international best practice and labour standards that applies to the peculiar facts pleaded by the parties to this suit.
5. Whether the claimant has sufficiently proved its case to entitle it to the declaratory and other reliefs sought.
6. Whether the defendant complied with the provisions of the Reviewed Human Resources Policy and Procedures Manual before retiring the claimant from its services.
10. Counsel arguing issues one and three learned counsel submitted that the claimant has failed to substantially prove that the determination of his employment is unlawful as his retirement was valid in accordance with the Reviewed Human Resources Policy and Procedure Manual particularly by its Paragraphs 22.214.171.124 (B)(2) and 6.5. He stated that the claimant was accorded fair hearing in all its disciplinary procedures and he was equally paid the requisite three months’ salary in lieu of notice hence he is estopped from complaining about the defendant’s exercise of its powers when he retired due to non-constitution of the defendant’s Board and having enjoyed the benefit during the existence of his employment with the defendant. Counsel cited the cases ofOforishe v Nigerian Gas Co Ltd  LPELR 42766 SCParas B-D; A.G Nasarawa State v AG Plateau State  LPELR 9703 SC. Counsel urged the Court to so hold.
11. On issues two and six argued together, it is learned defence counsel position that the claimant failed to lead evidence in support of his contention on the allegation on the non-constitution of the Board Directors and hence fatal to this suit. He cited the case of Awolola v GovEkiti State &ors  LPELR 46346 SC. Counsel submitted that claimant’s argument that the Board of Directors did not sign the letter of retirement is misplaced as the Board of directors only approves termination/dismissal of employment of executive staff while the responsibility of terminating the employment lies with the defendant’s committee of Governors as provided under paragraph 126.96.36.199 of the Reviewed Manual and the requirement of Section 14(4) of the Central Bank of Nigeria Act is on approval not signature as claimant falsely argued. That it duly complied with the Reviewed Manual before retiring the claimant from its employmentand that consideration of the Reports will reveal that all statutory procedures were complied with in terminating the claimant’s employment. He stated that the claimant went through the necessary disciplinary stages before the decision to retire him from the defendant’s employment, rather than terminate him which is the punishment for his behavior, was taken. That the claimant was issued a query, invited to appear before the special investigation panel which found that the claimant having admitted that he usually instructed his subordinate one MrBukar to cash his cheques without authorization and was aware that his signatures have been forged on the cheques to be cashed. That he was thereafter invited by a letter of invitation dated 28thAugust, 2017 to appear before the Central Disciplinary Committee which found his actions amounted to negligence of duty, failure to meet an acceptable standard of efficiency and productivity and failure to adhere to established rules and regulations. Learned counsel equally submitted that Central Disciplinary Committee did not usurp the powers of the Branch committee as the claimant argued as there is no provision in the Reviewed Human Resources Policy and Procedure Manual that stipulates that all complaints must first be channeled to and resolved by the Branch Committee before being submitted to and/or entertained by the Central Disciplinary committee.Continuing Counsel stated that by paragraph 6.5.1 of the Manual the Central Disciplinary Committee is empowered to adjudicate on any matter pertaining to the discipline of the defendant’s employee once referred to the Committee by the Management. Counsel arguing that the defendant’s committee failed to notify the claimant of its decision to retire him submitted that he was fully informed of the outcome of management’s decision and that by virtue of paragraph 188.8.131.52 of the Manual at no where is it stipulated that the defendant shall notify a party of the decision of the disciplinary committee prior to retirement. It is equally counsel’s argument that claimant was not denied any opportunity of appealing against the decision of the Central Disciplinary Committee as he did appeal to the Governor of the Defendant by a letter dated 5th of April, 2018 which was denied by the defendant vide a letter 2nd of May, 2018. Learned counsel submitted that the claimant has failed to prove his assertion that the same person who indicted him was among those who sat to hear the case against him at the Central disciplinary committee. He then concluded the issue by positing that the claimant has not proven that the defendant’s decision to retire him was unlawful and invalid. He urged the Court to so hold.
12. On issue four, learned counsel submitted that the claimant has made heavy weather that his retirement is not in compliance with international best practice and labour standards but has failed to show how it did not comply. He stated that the claimant neither pleaded his assertion nor did he prove the international best practice labour standard breached by the defendant in retiring him to entitle him to his claim. Counsel urged the Court to so hold.
13. Regarding issue five, learned counsel citing Sections 131 and 132 of the Evidence Act, 2011 and the case of Okoye&Ors v Nwankwo  LPELR 23172 SC at Pg 34 Paras A-D;submitted that the claimant has not proven his case against the defendant on preponderance of evidence and is thus not entitled to any of the reliefs sought as the defendant has shown vide plethora of evidence that the procedure was followed in terminating the claimant’s employment before converting it to retirement. He stated that the claimant has equally failed to prove what entitlement remains unpaid as he admitted that on the 5th of November, 2018, he was paid by the defendant the sum of N29,953,336.80 (Twenty-Nine Million, Nine Hundred and Fifty-Three Thousand, Three Hundred and Thirty-Six Naira, Eighty Kobo). He cited the case of Mba v Mba  LPELR 44295. Counsel on that regards submitted that it has fully discharged its financial obligations to the claimant. It is also learned counsel’s position that contrary to the position of the claimant that the defendant’s board was not constituted at the time of retiring him and as such no ratification from the Board was made submitted that assuming without conceding the Board did not ratify, it is not a requirement of Section 14(4) of the Central Bank Act that the Board must ratify a retirement at the time of so retiring as same remains valid upon the Board constitution. Counsel urged the Court to resolve all issues in favour of the defendant.
14.Theclaimant on the 10th of February, 2020 filed its reply on point of law in response to the defendant’s written submission wherein counsel argued that by paragraph 16.5 of the Reviewed Human Resources Policy and Procedure Manual and Section 14(4) of the Central Bank of Nigeria (Establishment) Act the defendant did not terminate the claimant’s employment in accordance with due process. Counsel submitted that payment of salary in lieu will not be effective in the circumstance as the determination of his employment was done without the Board’s approval. He posited that the chain of event that would ensure fair hearing would be the payment in lieu of notice and the approval of the Board of the payment and the termination. He cited the cases of Psychiatric Hospital Management Board v E.O Ejitagha  LPELR 2930 SC; Miscelland v Northern Island General Health Service Board  2 ALL ER 129 @ PG 134. Counsel submitted that the defendant admitted that the Board was not constituted at the time of terminating the claimant’s employment and equally admitted vide paragraph 5.5 of its written address that it is the Board of Directors only that approvesremoval/termination/dismissal of employment of executive staff by virtue of paragraph 184.108.40.206 of the Manual and Section 14(4) of the CBN Act.
15. It is counsel’s argument that the documents relied upon by the defendant vizthe Special Investigation Panel and the Central Disciplinary Committee cannot form part of prove of evidence by the defendant as it can only be a guide to the Court that there is prima facie evidence to support the allegation of criminal offence against the claimant. Counsel submitted that the purported reports relied on by the defendant shows that the claimant denied authorizing the imitation and forgery of his signature and therefore the defendant is obligated to prosecute the claimant in the law Court to prove beyond reasonable doubt the allegation of crime which it failed to do. He cited the case of AG Kwara&ors v Ojulari  LPELR 26055 SC. Learned claimant counsel urging the Court to disregard the argument of the defendant submitted that unfair labour practice or international best practices may arise in the course of employment or in a trade dispute or industrial relations. The issue of unfair labour practice or international best practice would arise in the exercise of a right vested in the parties in determining how to end or determine a statutory relationship. Counsel urged the Court to grant in claimant’s favour.
16.The defendant on the 4th of January, 2020 filed a motion on Notice praying to the Court for the following reliefs;
1. An Order of this Honourable Court striking out paragraphs 12,13,14,14,16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39, 40, 48 and 52 of the claimant’s reply to defendant’s amended statement of defence filed on the 18th day of October, 2019 for being overreaching and being an abuse of court process.
2. AND FOR SUCH FURTHER OR OTHER PRDERS as this HonourableCourt may deem fit to make in the circumstances.
The Ground upon which this Application is brought are;
1. That the claimant filed its complaint on the 19th June, 2018, consequent on which the defendant/applicant filed its statement of defence on the 15th November, 2018 which was deemed properly filed on the 13th February, 2019. Thereafter, the claimant filed its reply to statement of defence on the 27th February, 2019.
2. That the defendant/applicant with leave of this Honourable Court sought and obtained leave and amended its statement of defence on 9th July, 2019 necessitating the claimant to file a reply to the defendant’s amended statement of defence on 18th October, 2019.
3. The claimant’s reply as aforesaid made reference to fresh and overreaching facts which the defendant is not afforded the opportunity of responding to.
4. That claimant made references to contentious and fresh facts and relied on new documents in paragraphs 12,13,14,15,16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39, 40, 48 of the claimant’s reply to defendant’s Amended statement defence.
5. That the claimant attempted to sneak in certain documents through its reply to the defendant’s amended statement of defence in paragraphs 15, 18, 20, 21, 23, 24, 28, 29, 38, 39, 40, 48 and 52 which documents were not pleaded in the claimant’s statement of facts.
6. That the fresh facts deposed in the claimant’s reply to the defendant’s amended statement of defence were deliberately filed to hinder and deny the defendant applicant the right of responding to same.
17. In support of the Motion is a 6-paragraph affidavit deposed to by one Reuben Noah Harbooson, a litigation clerk in the law firm of the defendant applicant’ counsel. Also accompanied is a written address wherein counsel raised a sole issue thus;
Whether paragraphs 12,13,14,15,16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 29, 30, 31, 32, 33, 35, 38, 39, 40, 48 and 52 of the claimant’s reply to the defendant/applicant’s amended statement of defence are over reaching and an abuse of Court process.
18. It is counsel’s submission that sequel to the amendment of the defendant’s defence the claimant filed its reply and rather than being limited to the defendant’s defence made fresh and contentious allegations on administrative procedures and Agent of the defendant vide paragraphs 12,13,14,14,16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39, 40, 48 which does not give the defendant an opportunity to admit or deny, having not been pleaded in the claimant’s statement of fact. He stated that the claimant by paragraphs 38 and 39 of the claimant’s reply raised fresh and contentious fact about the letters for refund dated 28th August, 2018 and letter of refusal dated 12th of September, 2018 and attempt to sneak same as pleaded documents. He cited the cases of NDDC v Otuka&Ors  LPELR 45146 CA; Fayose v State  LPELR 8658 CA and the provision of Order 30 Rule 9 of the NICN Rules, 2017 and urged the Court to hold that this is an abuse of Court process and strike out the paragraphs in question.
19. The claimant on the 10th of February, 2020 filed a 9-paragraph counter affidavit deposed to by one Grace Benson a counsel in the lawfirm of the claimant’s counsel. The claimant also filed a written address adopting the issue as raised by the defendant. Counsel stated that by Order 15 Rule 7 of the NICN Rules, 2017 the claimant is vested with a right of reply to the defence of the defendant. He posited that if the application of the defendant is granted the claimant will be shut out to respond to the allegation of authorizing the imitation of his signature as well as the offence of forgery pleaded by the defendant. He stated that the claimant did not mention any form of criminal offence or alleged any form of disciplinary action against him in that regard but it was the defendant in their response vide their statement of defence who raised new issue of forgery against the claimant and which the claimant by the rules of this Court must react to. Counsel submitted that the defendant erroneously cited Order 30 Rule 9 of the Rules of this Court as the provision would avail the defendant had it not raised issue of imitation and forgery but the claimant goes ahead to rise the issues in its reply. Counsel urged the Court to discountenance the arguments of the defendant in this respect
.20. The defendant on the 18th of February, 2020 filed its reply on points of law inresponse to the claimant counter affidavit stating that a reply is to respond to new issues raised and not an opportunity for the claimant to build its case after issues have been joined as doing so amounts to using judicial process to play the game of hide and seek. He cited the cases of Unic Insurance Plc v Fadeyi&ors  LPELR 45571 CA P 16-17, Para C-A; Obiuwevbi&amnor v INEC &Ors  48895 pp 40 paras A-D (CA). Counsel posited that the claimant has not in any way denied nor did it respond in his counter affidavit that paragraph 38 and 39 are not overreaching therefore deemed to be admitted. He urged the Court to so hold and strike out paragraphs 12,13,14,14,16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39, 40, 48and 52 of the claimant’s reply to the defendant’s amended statement of defence.
21. After a careful consideration of the processes filed in this suit, the submissions of counsel and the cases and statutory authorities cited by both counsel. It is in my humble view that the issues germane for the Court’s determination are; whether the claimant has proven that his retirement by the defendant on the 20th of March, 2018 is unlawful and if the answer is in the affirmative, is he entitle to reliefs sought.
22. On the preliminary, there is a need for the Court to decide one way or the other the issues raised by the defendant that the claimant by his reply to the amended statement of defence introduced fresh and overreaching facts vide paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39, 40, 48 of the claimant’s reply to defendant’s Amended statement of defence and also introduced certain documents which documents were not pleaded in the claimant’s statement of facts. The claimant in response denied raising new facts in his reply but only responded to facts already pleaded by the amended statement of defence.
23. Generally, a reply is unnecessary, except where there is a counter claim. But where the Defendant raises fresh and new facts in his pleadings, the Plaintiff/claimant is obligated to reply to them. In the case of Obot v CBN  NWLR (Pt.310) 140; (1993) LPELR 2192 (SC), the Supreme Court held that the proper function of the Reply is to raise, in answer to defence, any matter which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raises issues of fact not arising out of the defence. Reply is theproper, place for meeting the defence by confession and avoidance. See also Unity Bank PlcVsBouari 7NWLR(Pt.1086)372; Nwagwu v. Onyekwere  LPELR 41447 CA. However, the underlying principle on reply lies in the fact that a claimant cannot in his reply raise a new issue which was not raised in his statement of claim.A reply should not take the place of amendment of the statement of claim. For such will over-reach the Defendant. See the case of Nkpa v Champions Newspapers Ltd and Anor  LPELR 40063 CA.In the instant case and after a careful reading of paragraphs12, 13, 14, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39, 40, 48 of the claimant’s reply to defendant’s Amended statement defence, I find no averment evincing or introducing new facts in the reply to undercut or overreach the defendant. The averments in the said paragraphs are further reply to the amended statement of defence in paragraphs 5, 6, 7, 8, 9, 24, and 26 and nothing more, there is no novel issues whatsoever raised by the claimant. Equally paragraphs 38 and 39 of the claimant’s reply is in specific response to the defendant’s paragraphs 9, 10, 11, 12, and 13, the defendant in its amended statement of defence asserted that it complied with the procedure for his retirement. Claimant reiterated the fact that the procedure leading to his retirement was not followed. That’s it. In all, I find no novel issue raised by the claimant in his reply to the defendant’s amended statement of defence, overreaching or occasioning any injustice to the defendant in this case. It is in this light that I discountenance and dismiss the preliminary objection of the defendant urging the Court to strike out the above stated paragraphs of the reply filed by the claimant. I so hold.
24. Now, to the main gravamen of the claimant’s case, which is that on the 20th of March, 2018 he was retired from the service of defendant prematurely and unlawfully as the requisite procedures to be taken before his retirement was not complied with by the defendant. The defendant on the other hand contends that the claimant was indicted for negligence of duty and failure to meet an acceptable standard of efficiency in instructing his subordinate to cash his cheques without any checks and balances, i.e. asking how he was able to do so and without a letter of authorization from him. That the required process for discipline was conformed to as the claimant was given a fair hearing to present his case within the confines of the law and that the alleged offence for which the claimant was indicted for requires that claimants employment be terminated but the defendant considering the number of years the claimant has put into service magnanimously converted same to retirement and paid all his retirement benefits.
25. It is noteworthy that learned counsel to the claimant at paragraph 3.3 of its reply on point of law posited that since the termination of the claimant’s appointment was based on a stated reason that is forgery of signature which is criminal in nature, the defendant ought to have invited the police after their investigation and or instituted an action to determine the culpability of the claimant.First, it is pertinent for me to state at the outset that the claimant’s employment was not terminated but he was retired from the defendant’s employ this is as clearly stated in his letter of retirement dated 20th March, 2018. Howbeit, I wish to unequivocally put the position of the law straight, id est that the submission of the learned claimant’s counsel with respect, is no longer the position of the law. There is a departure from that position of law as judicially enunciated in apex Court case of P.C. Mike Eze v Spring Bank Plc,  12 S.C. (PT.1), 173the Court affirming its earlier decision in Arinze v First Bank of Nig Ltd  12 NWLR (PT. 888) 663 @ 673,went on to state that it was not necessary for the respondent in that case which is the Bank to have waited for the prosecution of the appellant for the criminal offence disclosed in his various acts of gross misconduct, before dealing with him with appropriate dismissal. It is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also discloses criminal offences under any law; the employer has to prosecute or wait for the outcome of the prosecution of the employee for the criminal offence before proceeding to discipline the employee under the contract of service or employment. Rhodes Vivour, JSC; added thus-
'' ... the master does not have to report the matter to the Police and wait for the conclusion of a subsequent criminal trial before he dismisses the errant employee. The master can proceed to dismiss the employee once the master is satisfied that the employee did something against the interest of the master...''
26. The current position of the law is as clearly stated above by the Apex Court decision captured above.In sum, contrary to the argument of learned counsel for the claimant that where the act of misconduct by an Employee also amounts to a criminal offence the criminal offence must first be prosecuted before the Employer can exercise his disciplinary powers over the Employee “is not intended as law of the Medes and Persians”.Borrowing the words of Olagunju JCA (of Blessed memory)in Arinze v. First Bank (Nig.) Ltd. supra.It is in consequence that I find learned claimant’s counsel contention in this regard unmeritorious and thus discountenanced. I so hold.
27.It is apparent on record that most of the claimant’s claims are similar and all intertwine. First, the claimant’s claim that he was an Assistant Director in the employment of the Defendant at the time he was retired by the defendant. This is not in contention at all and one wonders why it is an issue before the Court. I say so in view of the documents on record. Especially the letters on record as well as in the report of the two committees set up to investigate the allegations against the claimant and others, all recorded the post of the claimant as an Assistant Director. Parties are in ad idem in that respect that before the retirement of the claimant he was an Assistant Directorin the Development Finance office of the defendant. It is equally not in contention that claimant has not attained age 60 or served 35 years in the service of the defendant.I need to state that there is a remarkable difference between removal and retirement. Removal is the act of dismissing somebody from their position or job, See page 1234 of Oxford Advance Learner’s dictionary. International student’s edition. 7th Edition.The term Retirement isdefined by Black’s Law Dictionary Edited by Bryan A. Garner 9th Edition at pages 1431 as Termination of one’s own employment or career especially upon reaching a certain age or for health reasons” while Removal, at page 1409 was defined as the transfer or moving of a person or thing from one location, position or residence to another. The Court of appeal gave a judicial teeth to this definition in the case of Chief Augustine Nawa v. A,G. Cross River State&Ors  LPELR-8294(CA);the Court defined Removal as the dismissal from office by the act of a competent superior acting within the scope of authority. Retirement on the other hand means termination of employment from service, trade or occupation upon reaching retirement age/or before the age of retirement.It is the light of all stated in this judgment that I find that retirement is not the same as removal from office. There is a markedly difference between the two as seen in the above exposition. Consequently, I discountenanced reliefs 1, 2, and 3 of the claimant’s claims and hold that they are frivolous.
28.It is the claimant’s claim that he had not attained the statutory age of retirement before he was unlawfully retiredas there was no Board of directors and meeting or decision or resolution of the defendant’s Board of Directors as to the retirement of the claimantand hence amounted to a removal from the bank.There is no dispute between the parties as regards the nature of the employment of the claimant. This is so in view of the fact that both parties are ad idem that their relationship is regulated by the Central Bank of Nigeria Act and the Reviewed Human Resources Policy and Procedure Manual of the defendant Exhibit BMI 21. The duty of the Court in determining the rights and obligations of the parties is to ensure compliance with the terms and conditions of employment. The Court in determining the issue framed in this instant, is equally to ensure that the procedure laid down in the statute and the defendant’s manual are complied with. The cases of Comptroller General of Customs &Ors v. Gusau  LPELR- 42081; Ojabor v. Hon Minister of Communications &Ors  LPELR-44247 CA;U.M.T.H.M.B v. Dawa  16 NWLR (Pt. 739) 424,MrsFakuade v. OAU Teaching Hospital  5 NWLR (Pt.291) P.24 are instructive.It must be also pointed out here as held in CBN v. Archibong (2001) 10 NWLR Pt. 721 page 492 at 507, that: "In a written contract of service/ the provisions are binding on the parties thereto and it is outside the powers of the Court to look anywhere else for the terms with regard to the termination of the contract other than in the written agreement”. Differently put, in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be imputed in the interpretation of the intention of the parties, otherwise the court will be seen as re-writing the agreement between the parties. See Bookshop House Ltd. v. Stanley Consultant Ltd. (1986) NWLR Pt.26 page 87 at 97.
29.This is to ensures that an employee is given a fair hearing in the procedure leading to his dismissal as it is settled that before an employer can dismiss or terminate the employment of its employee, the requirement of fair hearing must be strictly adhered to. It is by giving an opportunity to a person whose rights and obligations may be affected to make representation to the administering authority before that authority makes decision affecting that person. It is a vital prerequisite, a breach of same goes to the root of the investigation and thus will be declared a nullity by the Court. See the cases of Faleye&Ors v. Dada &Ors  LPELR 40297 SC; Banke& 178 Ors v. Akure North Local Government  64 NLLR (Pt 226) 155. This is equally founded on the twin pillars of Natural Justice rooted in the maxims audialterampartem (hear the other side) and nemojudex in casuasua (you cannot be a judge in your own case). It means the affected person is given opportunity to defend himself by being given enough time to present his defence to any allegation made against him, it means in simplest term an opportunity to be heard, See the cases of Ekeuzor v. Union Bank of Nigeria Plc  42 NLLR (Pt. 133) 758, P.792.It is trite law that where an employee is alleged of misconduct, the employer must acquaint him of the allegation by issuing him a written notice or query stating the grounds of the misconduct/negligence against him, give him a chance to defend himself and invite him to make an appropriate representation or defence thereto; be given an opportunity to cross-examine his accusers if any, and be allowed to call any witness/s if any. See the cases of Benin Electricity Distribution Company Ltd v. Esealuka  LPELR-20159 CA, Audu v. Petroleum Equalization Fund Management Board &Anor  LPELR-3824CA.
30.An indepth examination of the Central Bank Act and the Reviewed Human Resources Policy and Procedure Manual of the defendant provides for the procedure that ought to be followed before determining the employment of the claimant. It is clear at paragraph 220.127.116.11 B (2) (v)that the claimant was compulsorily retired by the defendant on the failure to meet an acceptable standard of efficiency and productivity when according to the defendant he instructed his subordinate to cash his cheques without authorization, and even when he did, he never questioned how he was able to do it and without a letter of authorization from him. That he equally gave his subordinate Mr. Bukar the latitude to imitate his signature several times which is against the standard of the defendant. I hereunder capture the pertinent clauses of the Reviewed Human Resources Policy and Procedure manual thus-
Paragraph 6.4.3 states that;
a. No disciplinary action shall be taken against an employee without an investigation to establish the facts in the course of which;
i). The employee shall always be given a fair hearing…”
Paragraph 6.5 provides that the Bank recognizes the need for thorough investigation to be carried out for disciplinary cases concerning its employees. Consequently, disciplinary committees shall be set up in all locations of the Bank to handle disciplinary cases referred to it, in addition to the Central Disciplinary Committee. These Committees are;
i. Departmental Disciplinary Committee (DDC)
ii. Branch Disciplinary Committee (BDC)
6.5.1. Central Disciplinary Committee
The Centre Disciplinary Committee (CDC) has the power to adjudicate on any matter affecting employee discipline that may be referred to it by Management.
i. Disciplinary Committee Procedure
In all cases, the Disciplinary Committee shall allow the employee against whom an allegation is made to defend himself/herself. The employee shall be issued a query, setting out in clear terms the charges against him/her and be requested to answer the query within three (3) working days of receipt. Failure to reply the query within three (3) working days of receipt shall be deemed as an act of insubordination which shall be treated accordingly.
On receipt of the response to the query or at the expiration of three working days from the date of receipt of the query by the employee, the committee shall commence sitting after duly informing the employee.
On arraignment before the committee, the charge (s) against him/her shall be read by the chairman and the employee shall be asked to make a plea. Before his/her plea is taken, the facts of the case shall be explained to him/her. If the employee pleads guilty, the committee shall recommend to the departmental director or Director, HR the appropriate disciplinary measure to be taken against the employee.
Where the employee makes a plea of not guilty, he/she shall be given the opportunity to defend himself/herself. He/she shall be given the facility to invite his/her witnesses, or tender documents, if any and also to cross-examine opposing witnesses. The employee shall however not use any these facilities to delay the proceedings unreasonably.
If an employee is not satisfied with the decision of the Disciplinary Committee, he/she may appeal to the Director, Human Resources, the DG (CS) or the Governor as the case may be.
31. Section 14 (4) of the Central Bank of Nigeria provides that Appointment of employees of the Bank shall only be in respect of positions created by the Bank and on such terms and conditions as may be laid down by the Board: Provided that the appointment and removal of staff of the grade of Assistant Director and above shall be with the approval of the Board.” (Underline mine for emphasis). The major grouse of the claimant in this case is that his retirement was not approved by the Board. This will be more delved into later in this judgment.
32. The above captured disciplinary procedure is in tandem with the general position of the law on discipline of an employee of the defendant. It is noteworthy that the major procedure to be followed by the defendant before the determination of the claimant employmenton the allegation of misconduct is the issuance of query to him, clearly stating the allegation therein and eliciting an answer from him; affording him an opportunity to make representation in person on the matter to the Committees in this case the Central Disciplinary Committee [CDC] and the Special Investigation Panel [SIP]. He shall be allowed to cross examine witness/es if any invited by the panel. He also has a right of appeal the decision of the defendant. As reiterated, all the above procedure enunciated by the above Statuteand Rules are to ensure fair hearing in the disciplinary procedure of its officers.
33.From the record before the Court, the Claimant by Exhibit BMI 17 dated 28th of September, 2017 was issued a query clearly stating the allegations against him, which he answered on the 29th of September, 2017 BMI 18. He was invited to appear by a letter dated 28th of August, 2017 to a panel of the Branch Disciplinary Committee. The report of the Panel and the report of the Special Investigation Panel recommended that the claimant has a case to answer and was subsequently arraigned before the Central Disciplinary Committee, the allegations were read to him and his plea was taken, he denied allegation one and two, while he admitted allegations three and four (See page 47 of the Report of the CDC).The panel gave him opportunity to defend himself. The CDC recommended that the claimant be compulsorily retired from the Bank in view of the number of years he has put into service and that he has served the branch without blemish. In addition his office had won the recognition of best DFO Bank wide on a few occasion and the office was doing well on the Anchor Borrowers Program, hence the CDC recommended his Retirement instead of termination of employment.[Page 49 of the Report]. Sequel to that he was issued a letter dated 20th of March, 2018 signed by the Director Human Resources Department. It is germane for me to state that the defendant complied with all the major part of the procedure enumerated supra in this judgment as required by the Human resources manual. He was given a query and he answered as I have stated above. He was invited before all the disciplinary panels constituted for this purpose and he made representation. What more, he was given opportunity to defend himself after denying and admitting certain parts of the allegations. He was finally recommended for termination, but was converted to retirement.By Charles Udegbunam v. FCDA 10 NWLR (Pt.829)487.An employer has a discretion to give lesser punishment to an employee but it has no discretion to give a higher punishment.This portends that the defendant is at liberty to retire the claimant instead of terminating his appointment which in the eye of the public carries a lot of opprobrium. I have carefully read the content of the reports of the two committees, the query and response to same by the claimant, and I am satisfied that the claimant was given ample opportunity to attend the Inter-departmental committee, the CDC and SIP set up by the defendant and was also given an opportunity to defend himself and also exercised his right of appeal against his retirement vide a letter dated 5th April, 2018 and the defendant replied on the 2nd May, 2018, refusing his appeal. Authorities abound that fair hearing is about opportunity to be heard. Once a Court makes a finding that the employee was given ample opportunity to defend himself/herself on the allegations in issue, as I have found in this instant, then such an employee cannot complain of not being given fair hearing. The common feature running through all the cases is that the exact nature of the infraction(s), which the employee is expected to answer to, was disclosed to the employee and he answered to same as stated supra and he was given an opportunity to appear before disciplinary panels to further defend himself will suffice as having complied with fair hearing requirement. Claimant grouse also is that he was not given a copy of the report of the disciplinary committee that investigated his allegation as required by the Human Resources Manual. A pertinent question to ask is what is the effect of noncompliance with that requirement? The law is trite that where a rule or law makes a provision as to the doing of a thing but does not provide a sanction for not doing that thing, then the doing of that thing or action is directory, and not mandatory. See Bode Thomas v. FJSC, Unreported Suit No. SC.228/2013, judgment delivered by the apex Court on the 16th February, 2018.Lastly, it is also the contention of the claimant that the Chairman of the CDC, i.e one Mohammaduwas bias and that one of the members of the panel at the SIP was not invited to testify at the CD. The claimant had the opportunity to raise this issues before the CDC but he failed to raise it, I say so in view of the fact that going through the Report of the CDC which is detailed, I could not find any where he express his displeasure respecting the issue of bias. He equally had the opportunity to raise it in his appeal letter he wrote to the defendant, yet he did not. Hence I find this complaint at this stage as an afterthought, this is so in view of the fact that there is no single evidence on record in support of his allegation and thus discountenanced, I consequently, find that the claimant was given fair hearing before his eventual retirement. I so find and hold.
34. Claimant’s contention, however, is that his retirement from the bank was done without the approval of the Board as provided for by Section 14(4) of the Central Bank Act. Parties are ad idem that before the retirement of the claimant there was no Board of directors in place. Though the defendant has averred by paragraphs 19, 20 and 21 of its amended statement of defence that the non-constitution of the Board does not preclude the defendant from taking disciplinary decision against the claimant as the Board upon constitution can ratify the decision of the defendant. It is the clear position of the law thatthe golden rule of interpretation is that where the words used in the Constitution or in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See the cases ofGana v SDP &Ors  LPELR 47153 SC; Anibor v EFCC &Ors  LPELR 43381 CA.By the unambiguous provision of Section 14(4)of the CBN Act, id est, the Board shall approve the appointment and removal of an Assistance Director and above. Given the distinction between the words “Retirement and Removal’ made supra in this judgment, it is obvious that the claimant having been retired as opposed to remove by the defendant does not require the approval of the Board of the defendant. The approval of the Board is only where the Assistant Director is removed. Assuming, but am not conceding to the fact that claimant by his letter of retirement which unequivocally stated that he is retired from the defendant, connotes removal from office as the claimant would want the Court to hold, the management which includes the Governor of the defendant, who is also a member of the Board may retire him in the absence of a Board and later when the Board is constituted, it can ratify it. That is the administrative steps required to be taken. Now, how would a reasonable man view a situation where an officer of the defendant has been found to have misconducted himself, should such an officer be left untouched and be allowed to perpetrate the misconduct, while the defendant stand akimbo, watching its employee without exercising its disciplinary powers until a Board is constituted? This in my respectful view will condone lawlessness in the establishment and also foist a state of helplessness on the defendant employer. The law is that the right of an employer to discipline any erring employee is in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. As held in Shell Pet. Dev. Co. (Nig.) Ltd v. Omu 9 NWLR (Pt. 567) 672, it is a disruption of an ordinary employer’s business to fetter it with an injunction not to discipline his servant. In other words, the right of an employer to discipline its employee cannot be fettered by the Court, not even by an injunction.
35. I equally find that the claimant was employed as Senior Supervisor on the 2nd February, 1989 by the defendant and his letter of employment was signed by an Assistant Director of Personnel (Recruitment) for Director Personnel. The law is of common place that he who has the power to appoint has the power to remove, this is statutorily entrenched in Section 11(1)(c) (i) of the Interpretation Act, CAP. LFN; 2014 that "where an enactment confers a power to appoint a person either to an office or to exercise any functions..... the power includes:...(b) power, to remove or suspend him.See the notorious case of Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt.710) 660. A perusal of the claimant’s employment letter reveals that he was not employed by the Board, I say so in view of the clear content of the exhibit BM1, same is reproduce herein for ease of reference thus-
“Central Bank of Nigeria
2nd of February, 1989
Mr. Iria M. Badaiki,
15 Folami Street,
OFFER OF APPOINTMENT
With reference to your interview for employment, I am pleased to offer you an appointment with the Central Bank of Nigeria as a Senior Supervisor subject to:
i. Police finger print clearance
ii. Satisfactory reference
iii. Successful medical report and
iv. See below
In order to get yourself medically examined, you should report at St Nicholas Hospital, 57 Campbell Street, Lagos as early as possible with the enclosed letter of introduction which should be left with the doctor.
Your appointment with the bank will be at a commencing salary of N12,100 (CBSS 09 Step 2) per annum in the salary scale of N…….. and will be for a probationary period of 2 years after which, subject to satisfactory service, you will be confirmed in your appointment.
The appointment is pensionable and may be terminated upon the giving of one month’s notice in writing by either side or the payment of a month’s salary in lieu thereof expecting in the case of dismissal for gross misconduct, when a notice or salary in lieu of notice will not apply.
Your service with the Bank will be governed by the Bank’s regulations in force time to time.
You will be entitled to 30 day’s annual leave with leave allowance, and housing/transport allowance appropriate to your grade.
The Bank has a medical scheme under which a member of staff, his wife and dependent children are treated.
I will advise you, as soon as possible if the result of your medical examination and the replies from your referees are satisfactory, to start work.
You should please signify your acceptance of terms set out above by signing and enclosed duplicate copy of this letter and returning it to me. Also, if you are agreeable to the terms above, you should report at the police C.I.D Office at Alagbon, Alagbon Close Ikoyi Lagos for finger print exercise as the next stage of the screening.
If I do not hear from you within 1 month from the date of this letter, the offer will be regarded as lapsed.
Assistant Director of Personnel
For Director of personnel
I confirm my acceptance of the terms set out above.
Signed …………… Name: ………………….
N.B Please report to Manager, Recruitment office for Thumb print Impression before reporting to the Police for finger print exercise.”
36. It is plain from the above captured letter that claimant was employed by the management of the defendant who by law equally has the power to determine his relationship with the defendant. Hence, they retired him. By paragraph 7 of the statement of Facts, claimant averred that in 2011, he was promoted to the rank of Assistant Director by the defendant.[Underline is mine for emphasis]. He did not state that he was promoted or appointed by the Board.There is no single document on record stating otherwise. I thus have no hesitation in making a finding in view of the above position of the law and the circumstances of this case that the claimant who was not employed/promoted by the Board cannot be retired by the Board.Consequently, his retirement by the same management that employed him is lawful andin compliance with his terms of contract.I so hold.
37. It is the further contention of the claimant by paragraphs 10 and 14 of his statement of facts that his letter of retirement did not state any reason for his compulsory retirement. It is the defendant’s response by its paragraphs, 9,10, and 11, that the claimant is aware of the reason for his retirement in view of the series of event culminating into his compulsory retirement. The position of the law as it stands today is that an employer is not bound to give reason for termination of its employee’s employment. It is only in a situation where reason is given that the employer must justify same.I am aware of some decisions of NIC, by my learned brother Judges, as to the law now being that an employer must give a reason for any termination of employment.In any case for an employee to insist on the application of this rule and that of international best practice, the onus on him by Section 7(6) of NIC Act 2006 and the decision of the Court of Appeal inOak Pensions Ltd v. Olayinka,2017) LPELR-43207(CA) which clearly stated that in applying good or international best practice in labour or industrial relations, what amounts to good or international best practice in labour or industrial relations shall be a question of fact. Facts must be pleaded and proved if a claimant is to be held to be entitled to recompense.Here Garba JCA at pages 39-42, where he stated thus-“Unfair labour practice or international best practices may arise in the course of employment or in a trade dispute or industrial relations, but cannot rightly and properly be imported into the terms and conditions of a contract of service freely entered into for a servant-master relationship. The rights, entitlements and obligations of the parties in such a relationship, are in law and equity, to be and are governed by the terms and conditions voluntarily agreed to by the parties and not by sentimental conjunctures of what is fair or unfair conduct in the relationship in complete disregard of the terms and conditions. The issue of unfair labour practice or international best practice would not arise in the exercise of a right vested in the parties by their own voluntary agreement on how to end or determine the relationship between them.By merely making a sweeping statement that the action of the defendant is against international Best practices or it’s an unfair labour practice without cogent and impeachable evidence, goes to no issue. In any case in this instant case, like the defendant averred, the claimant was aware of what transpired before he was retired by the defendant. It is noted, that the claimant failed to plead any specific fact of an unfair labour practice or any act against international best practice. The only document where such was mentioned is in his final written address and that in my considered view cannot suffice as pleadings. It is in the light of all stated supra that I find claimant’s contention as one without foundation and same has to crumble and fail. It is thus discountenanced.
38. By paragraph 13 of the statement of facts, claimant alleged that he was not given the mandatory notice of retirement. In its response also by paragraph 13 of its statement of defence, the defendant has also pleaded that the claimant was promptly paid his three months’ salary in lieu of notice and so he is not entitled to any notice and his gratuity and therefore his retirement should be deemed lawful. The claimant by exhibit BMI 19 dated 28th August, 2018 formally intimated the defendant of his rejection of the said sum paid into his account. He also requested for an account from the defendant to refund same. It is on record that at the point of retiring the claimant, the defendant attached a voucher dated 20th March, 2018 being three months’ salary in lieu of notice, same date with the letter of retirement.The claimant refused to accept it, but according to the defendant, it paid it into his UBA account as well as his gratuity. To the claimant by paragraph 37 of his reply to the amended statement of defence, stated that payment of three months’ salary in lieu of notice is not a requirement for premature retirement. The claimant seems to be blowing hot and cold on this issue, this is in view of the fact that in a breath he is alleging that he was not given the mandatory notice of retirement and in another breath, he is saying payment of salary in lieu of notice is not a requirement for premature retirement. It is important to note thatthe mode and time of payment of the salary in lieu of notice depends on the circumstance of each case. Thus in Morohunfola v. Kwara State College of Technology (1986) 4 NWLR (Pt.38) 732 at 744, the Court of Appeal held the payment of the salary in lieu of notice to the Bank of the employee where his salaries had been ordinarily paid to be sufficient compliance with the term of the contract relating to payment in lieu of notice.I find at page 118 of the reviewed Human resources Policies and Procedures that talks about retirement generally, specifically paragraph 2 provides for early retirement, it stated that this is usually at the instance of the Bank where an employee is retired before attainment of retirement age. The contract requires an employee who is retired early to be paid his pension. There is no requirement for payment of three months’ notice as averred by the claimant in his reply to the amended statement of defence. It is thus in my respective view that the payment of three months’ salary in lieu of notice to the claimant is just superfluous. The import of this is that whether or not the defendant paid three months’ salary in lieu of notice and the claimant refused same does not vitiate the claimant’s early retirement by the defendant.By WAEC v. Oshionebo 12 NWLR (PT.1994)254CA,the giving of notice of retirement carries with it the right to be paid a pension or gratuity, but it does not confer the right to withdraw from service immediately and automatically. WAEC v. Oshionebo supra is, however, silent on where it is the employer who terminated the employment contract with immediate effect as in this case. Since legal reasoning supports the view that in law as in logic, the converse of a proposition commands the same respect as the proposition itself, my humble viewtherefore, is that the employer cannot likewise just terminate/retire an employment relationship with immediate effect without corresponding monetary repercussions; for what is good for the goose should also be good for the gander.It is in the light of this that I find the payment of three months’ salary in lieu of notice to the claimant as proper. I so find and hold.
39. Claimant is equally urgingthe Court to hold that his employment is still subsisting in the defendant and entitled to all his salaries, allowances emoluments and benefits.I have held supra in this judgment that the retirement of the claimant by the defendant is in compliance with his terms and condition of employment. He cannot also be reinstated by the defendant. The Court cannot therefore, hold that his employment is subsisting. Claimant’s relief 12, 13 and 14 thus fail.
40.The claimant in the alternative is by reliefs 15, 16 and 17 seeking for the sum of N4,657,430.70, interest on this amount as well as the sum of N89,422,669.36 as special damages.According to the claimant the defendant is owing him the sum of N4,657,430.70as at June, 18th 2018. The law is constant that he who asserts must canvass evidence in prove of same. I have combed through the processes on record and found no evidence in prove of the claimant’s claim for the above sum.It is on record that the claimant was retired on 20th of March, 2018 and here he is seeking for payment of the alleged sum as at June, 2018, which is post his retirement. He neither stated facts in relation to the sum claim and how he came about it. Regarding reliefs 17, he is claiming special damages in the sum of N89,422,669.36. The law is that special damages are to be specifically pleaded and strictly prove. In other words, not only is there no room for inference by the Court, there has to be compelling evidence to justify its award. SeeNNPC V KLIFCO (NIG) LTD (2001) 10 NWLR, PT 1255, 209.In the instant case, I find no item on the pleading itemizing the purport of this claim and no evidence marshalled by the claimant in prove of same. It is in view of all stated supra that I discountenanced claimant’s reliefs 15, 16and 17 for being frivolous. I so find and hold.
41.The claimant claims the sum of Two Hundred Million Naira as general damages. I have held supra that the claimant’s retirement is in compliance with his contract of employment and thus lawful. It is also on record that the defendant has paid the claimant’s terminal benefit in the sum of N29, 953,336.80 into his account, this is not in contention. Claimant by exhibit BMI 26 paid it into his UBA account. The import of which is that the claimant has been paid his terminal benefit which I have held supra to be proper and lawful. Now, the basis for which claimant is seeking for two hundred million naira as general damages is according to him, in consequence of his unlawful retirement. Damages are generally what the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued.Having held supra that the retirement of the claimant is lawful and his account already credited with his terminal benefit, is he still entitled to general damages? My answer is in the negative. This is in view of the fact that claimant cannot after payment of three months’ salary in lieu of notice as well as his terminal benefit be awarded damages. Also, is the fact that all the claimant claims fail, he is thus not entitled to any damages. Aside the sums paid to him already by the defendant. I so find and hold.
42. Claimant claims cost of this action in the sum of N2,000,000.00 (Two Million Naira).It is the law that cost follows event and it is usually at the discretion of Court which must be exercised judicially and judiciously. See the cases of Ibe&anor v BonumNig Ltd  LPELR 46452CA; First Bank v Oronsaye  LPELR 47205 CA.I find no reason why I should exercise my discretion in favour of the claimant by awarding cost in the circumstances of this case. Accordingly, claimant’s claim for cost fails. I so find and hold.
43. In conclusion, it is obvious by the reasoning and decision of this Court supra that the claimant has failed in all the reliefs sought. The claimant retirement is held to be lawful as well as all the sums already paid to him as stated in this judgment. Claimant claims fail in its entirety and thus dismissed.
No order as to costs.
Judgment is entered accordingly.
Hon. Justice Oyebiola O. Oyewumi