IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE R.B.HAASTRUP
DATE: APRIL 14, 2016 SUIT NO. NICN/MKD/24/2013
Mr. Stephen A. Ibrahim……………………………………………..Claimant
Union Bank of Nigeria Plc……………………………………………Defendant
Ocha Ulegede, for claimant
C.O. Alechenu, with Miss P.S. Umoh, for the defendant.
The claimant’s complaint against the defendant is dated 4th February 2013, but filed 12th March 2013, praying for the sum of N101, 371, 528.00 (One Hundred and One Million, Three Hundred and Seventy One Thousand, Five Hundred and Twenty Eight Naira) only, being special and general damages suffered by the claimant as a result of his wrongful suspension and disengagement from work after about 20 years of service in the banking industry of Nigeria.
(a) An order of the Honourable Court declaring the termination of the appointment of the claimant with the defendant in a letter dated March 13th 2008 as unlawful and void and of no effect.
(b) A declaration of the Honourable Court that the suspension of claimant by the defendant from work for 2 years from February, 2006 to March 2008 is a breach of contract of service/collective agreement binding parties.
(c) A declaration of the Honourable Court declaring the allegation of RE- SPURIOUS CREDITING OF N1, 000, 000.00 INTO A/C 0243010000180 AND SUBSEQUENT IRREGULAR ISSUANCE OF DRAFT” by the defendant against the claimant as malicious, injurious falsehood in bad faith and therefore null and void.
(d) An order of court declaring that as at the time claimant’s appointment was terminated by the defendant, claimant was no longer on probation, as his probationary period had long elapsed, as per the contract of service and collective agreement binding the parties.
(e) A declaration of the Honourable Court that all steps taken by the defendant leading to the termination of the claimant’s appointment breached his Fundamental Right to fair hearing .
(f) An order of the Honourable Court that the defendant pay the sum of One Hundred Million Naira (N100, 000, 000.00) only as general damages for wrongful termination of the claimant’s appointment, and injurious falsehood.
(g) An order of court that the defendant pay the sum of One Million and Seventy One Thousand, Five Hundred and Twenty Eight Naira (N1, 071 528.00) only to the claimant as special damages analysed as follows:
-1/2 of basic salary withheld by the bank for 24 months from March 2006 to February 2008 (12, 723.75 X 24 months) = 305, 370
- Productivity bonus for 2006 accounting year = 70, 000
Leave Allowance for 2006 (305, 370 X 16%) = 48, 859
Commuted Leave for 2006 = 48, 859
Leave Allowance for 2007 (N313, 408 X 16%) = 50, 145
Commuted Leave for 2007 = 50, 145
Education Allowance for 2007 = 106, 000
Passage Allowance for 2007 = 300, 800
Pension Fund Contribution for 25 months from February
2008 (3, 002 X 25) = 75, 050
National Housing Fund Contribution for 25 months from
February 2006 to February 2008 (652 X 25) = 16, 300
1, 071, 528.00
(h) A mandatory order for the defendant to pay N300, 000.00 (Three Hundred Thousand Naira) only as professional fees to the claimant’s solicitor for prosecuting this case.
GRAND TOTAL N101, 371,528.00
Accompanying the complaint are the statement of facts (referred to by claimant as claimant’s complaint), list of witness, written deposition on oath of the claimant, list of documents and copies of documents (Exhibits CW1A – CW1Q 1-3). The defendant entered appearance by filing the memorandum of conditional appearance, list of witness, written statement of witness, list of documents and copies of documents frontloaded. The defence processes were all filed on 23rd September 2013, and deemed properly filed and served on 3rd July 2015.
The claimant in reaction filed his reply to the defendant’s statement of defence. The defendant thereafter, amended her list of witness by filing additional written statement on oath of witness, thereby substituting Ahmed Tijani Ibrahim for Mr. Abu Odeje as defendant witness. The amendment was by the motion dated 18th June 2015 and filed 22nd June 2015. The amended processes were all deemed properly filed and served on 24th June 2015.
The claimant at the trial testified on his behalf as CW, while Abuh Odeje, a marketing officer with Union Bank of Nigeria Plc, Ogiri-Oko branch in Makurdi testified on behalf of the defendant as DW. At the conclusion of trial, parties were ordered to file and serve their respective written addresses. The defendant’s final written address is dated the 18th July 2015 but filed on 21st July 2015. The claimant’s written address is dated 23rd October 2015 but filed 27th October 2015. The defendant’s reply on points of law is dated 13th January 2016 but filed 14th January 2016.
The case of the claimant from his complaint of 4th February 2012, is that he was employed by the defendant (Union Bank of Nig. Plc) on 23rd January 2006, as officer 1(GP5) effective 1st February 2006 on a salary on a salary of N1, 073, 359.00 per annum. Prior to his employment with the defendant, he got an approval for a loan of One Million Naira (N1, 000, 000.00) on 17th January 2006, from Stirling Trust Company Limited (subsidiary company of Universal Trust Bank Plc
) while in the employment of the defunct Universal Trust Bank Plc, Makurdi Branch. He was suspended indefinitely by the defendant on 27th February 2006; vide an E-Mail titled “Re- Spurious Crediting of N1, 000, 000.00 into Account No. 02430/0000/80 And Subsequent Irregular Issuance of Draft.” That Stirling Trust Company Limited had confirmed to the defendant vide letter of 24/4/2006 of its approval of the loan of N1, 000, 000.00 in his favour (claimant). He was queried by a letter dated 22/5/2005 by the defendant, for seeking and obtaining N1, 000, 000.00 loan from Stirling Trust Company Limited contrary to his contract service agreement.
The claimant went on that he was on probation for 2 years, contrary to his contract of service agreement of 1/2/2006 with the defendant. That he was not queried by his former employer for the loan facility, which was granted on 17th January 2006 before he joined the defendant on 1st February 2006; and despite his reply to the defendant regarding the said loan, he was on suspension from February 2006 to 12th March 2008 for unauthorized loan facility from Stirling Trust Company Limited. That his emolument was reviewed downwards to N2, 433, 408.00 per annum during the period of his suspension. He was later disengaged by the defendant vide the letter dated 13th March 2008, without any benefits paid to him. He continued that he rejected the letter of his disengagement and the sum of N36, 000.00 credited to his account by the defendant. To the claimant, his suspension and disengagement by the defendant are malicious, illegal and in breach of his right to fair hearing, his contract of service agreement and Article 4 of the Collective Agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institution (NEABIA) and the Association of Senior Staff of Banks Insurance and Financial Institution (ASSBIF); hence his reliefs as claimed in paragraph 27 (a) – (g) of his complaint.
The case of the defendant is that the claimant was its employee vides a contract of service dated 1st February 2006, on a monthly salary of N36, 000.00. That the claimant was found to have violated the provisions of paragraphs 2, 3, 4 and 5 of the contract agreement which led to termination of his employment by the defendant. The claimant was prior to his disengagement suspended indefinitely for gross misconduct, in line with the terms and conditions of the contract agreement.
To the defendant, the collective agreement referred to by the claimant is not part of the contract agreement between the parties, and thus unenforceable. The defendant went on that, although the claimant claimed to have secured the loan facility in question on 17th January 2006, before his employment with the defendant on 1st February 2006; he failed to disclose the financial transaction, which the defendant uncovered on its own. More so, the claimant’s account with the defendant was credited with one million naira (N1, 000, 000.00) on 16th February 2006, only after the claimant had assumed duty with the defendant. The claimant proceeded to trade in securities and shares with the said sum, in breach of the contract agreement between the parties, which led to his being queried and his reply thereof dated 21st February 2006 and 22nd May 2006 respectively, which were refused and rejected by the defendant; hence the termination of his employment on 13th March 2008.
The defendant continued that the claimant was upon his disengagement only entitled to N36, 000.00 as one month’s salary, which was credited to his account, but rejected and refunded back to the defendant by the claimant. To the defendant, it has not breached the claimant’s fundamental right to fair hearing. That the employment relationship is also, one of master/servant which came to an end on 13th March 2008 and same was no longer subsisting. He went on that by the nature of the employment relationship, the defendant was at liberty to determine the relationship with or without any reason, and the claimant was therefore not entitled to claims of salaries, wages or allowances for work not done. That the claimant’s suspension and subsequent termination was not based on the allegation of the commission of any criminal offence by the claimant, urging the court to dismiss the entire reliefs of the claimant for lacking in merit; as he cannot be foisted on the defendant, who is an unwilling employer. The defendant then framed the following seven issues for determination of the court:
1. What is the nature or type of contract of employment in this case?
2. Whether Exhibit CW1P (collective agreement) is of any evidential value in the circumstances of this case.
3. In master/servant relationship, which documents constitute the bedrock of the contractual relationship between the employer and the employee?
4. Whether the claimant’s employment was wrongfully terminated so as to entitle him to his claims before this Honourable Court.
5. Assuming (but without conceding) that the termination of the claimant’s contract employment was wrongful, what would be the nature or type of damages that the claimant would be entitled to.
6. Assuming (but without conceding) that the termination of the claimant’s employment was wrongful, whether the claimant can be foisted upon the defendant as an employee within the circumstances of this case.
7. Whether the claimant can be paid salaries, wages, emoluments and allowances for the period in which he was not working for the defendant in the circumstances of this case.
In arguing issue 1, counsel to the defendant submitted that the claimant’s reliefs as claimed are determinant upon the nature of the employment relationship between the parties in this case. That since the defendant is not a creation of statute, the relationship is one of master and servant as contained in Exhibits CW1C and CW1D (letter of appointment and contract agreement). He went on that Exhibit CW1P (collective agreement) relied upon by the claimant cannot change the nature of the instant employment relationship from the category of master/servant. He relied on Yemisi vs. Federal Inland Revenue Services (2013) ALL FWLR (Pt. 693) 1992 @ Pg. 2007, Paras. B – E, Nagebu Company (Nig.) Ltd vs. Unity Bank Plc (2013) ALL FWLR (Pt. 698) 871 @ Pg. 907, Paras. A – B, Valentine Enyi vs. A-Z Petroleum Products Ltd (Unreported) Suit No. NICN/EN/161/2012, delivered on 2nd December 2014. Counsel then urged the court to resolve issue No. 1 in favour of the defendant; since the employment relationship between the parties is one of master and servant under the common law, which is not statutorily flavoured.
Regarding issue no.2, the defendant counsel argued that Exhibit CW1P (collective agreement) is of no probative value, and no weight should be attached to it since the claimant was not the maker of the document, which is not equally signed, citing Omoyola vs. Enterprise Bank Ltd (2013) ALL FWLR (Pt. 698) 911 @ Pg. 926, Paras. B – H, Flash Fixed Odds vs. Atakugba (2001) FWLR (Pt. 76) 709 @ Pg. 730, Paras. B – E, Belgore & 2 Ors vs. Ahmed & Ors (20130 8 NWLR (Pt. 1355) 60 @ Pg. 100, Paras. D – G. He submitted that the CW had admitted under his cross examination that he was not the maker of Exhibit CW1P, and that neither his name nor that of the defendant was contained in Exhibit CW1P as parties in this suit. To counsel, Exhibit CW1P was made between the “Nigeria Employers’ Association of Banks, Insurance and Allied Institutions” and “The Association of Senior Staff of Banks, Insurance and Financial Institutions” who are not parties in the instant case; as a result, the document only stands as a documentary hearsay which cannot be used in any judicial proceedings by or against a person who is not a party to it. He went on, that the failure of the claimant to tender in evidence the Federal Republic of Nigeria Extra-Ordinary Gazette, Vol. 65, No. 6 dated 8th February 1978, referred to in Exhibit CW1P is fatal to the claimant’s case; as this would leave the court to speculations or guess work, which is not permissible by law. That the claimant was bound to have tendered the said Gazette in evidence alongside Exhibit CW1P, citing section 148 of the Evidence Act, 2011 and Ogbunyiya & Ors vs. Okudo & 2 Ors (2001)FWLR (Pt. 72) 1987 @ Pg. 2001, Paras. C – G; urging the court to resolve this issue in favour of the defendant.
In arguing issue no. 3, counsel to the defendant submitted that it is the claimant’s contract of employment that needs to be examined in order to determine whether or not the claimant’s employment was wrongfully terminated by the defendant; since the contract of service and the conditions of service constitute the bedrock and foundation upon which any dismissed or terminated employee must found his case, citing Dudusola vs. Nigeria Gas Company Ltd (2014) ALL FWLR (Pt. 713) 1902 @ Pg. 1912, Para. B. It is the argument of counsel here that, Exhibits CW1C (offer of appointment letter) and Exhibit CW1D (terms and conditions of contract of employment between the parties), which constitute the bedrock of the contractual relationship in the instant case, are the only documents for the court to examine in determining whether or not the claimant’s employment was wrongfully terminated. According to counsel, Exhibit CW1P which the claimant sought to rely upon has no legal basis, since it does not form part of the contract agreement (i.e. Exhibit CW1D) between the parties in this action, citing NDIC vs. Obende (2002) FWLR (Pt. 116) 921 @ Pg. 928, Union Bank of Nigeria Plc vs. Edet (1993) 4 NWLR (Pt. 287) 288. That the fact that Exhibit CW1C (offer of appointment letter) made reference to availability of free medical facilities as contained in the ASSBIFIE Collective Agreement, does not infer that Exhibit CW1P has been wholly and completely incorporated into the contract of service. He went on that Exhibit CW1P was not incorporated into Exhibit CW1D, since it was not the intention of the defendant to bring same in. He further submitted that the reference made in page 2 of Exhibit CW1C under “Medical” is in relation to “ASSBIFIE Collective Agreement”, as distinct from Exhibit CW1P which is “The Procedural and main collective agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) 2005”. More so, that the evidence of DW, Mr. Abu Odeje under his cross examination is to the effect that the defendant’s staff were not allowed to take part in trade union activities. The implication of this, according to counsel is that the defendant cannot therefore be bound by the content of Exhibit CW1P in the circumstances. He then urged the court to resolve this issue in favour of the defendant, and hold that it is only Exhibits CW1C and CW1D that ought to be examined in determining whether or not the claimant’s employment was wrongfully terminated.
Counsel argued issues 4, 5, 6 & 7 jointly and submitted that it is settled law that when a dismissal or termination is found not to be wrongful, a claimant or plaintiff in the circumstance will get nothing, citing Michelin (Nigeria) Ltd vs. Alaribe (2010) ALL FWLR (Pt. 543) 1998) @ Pg. 2018, Paras. B – C, where the court Per Eko JCA held thus –
“ The determinant of the wrongfulness or otherwise of a contract of service, where the terms are in writing, is the contract of service, and not the notion of fair hearing…………………………………………….It is clear from C.C.B. (Nig) Ltd vs. Nwankwo @ Pg. 169 that it is only when the master terminates his servant’s employment in a manner not warranted by the terms of contract of service that he is liable in damages for breach of contract. The master who terminates the contract of service of his servant in a manner permitted by the contract of service is not liable in damages for any breach. What is permitted by law cannot be unlawful…………………..a servant as the respondent who is guilty of serious misconduct or who is dishonest, or whose acts are prejudicial to the interest of his master is liable to summary dismissal without notice or payment of salary in lieu of notice.”
He went on that the master; in a master/servant relationship has the right to determine the contract of employment at any time with or without any reason given for his action, as found in Olanrewaju vs. Afribank Nigeria(2001) FWLR (Pt. 72) 2008 @ Pg. 2017, Para. F and Shell Petroleum Development Company of Nigeria, Ltd vs. Ifeta (1993) 5 SCNJ 1 @ Pg. 19, lines 15 – 20.
To counsel, from the decisions of the court in the above cases, the contention of the claimant in the present case, to the effect that the termination of his employment by the defendant should be set aside, since it was based upon malice, injurious falsehood, bad faith and a breach of his fundamental right to fair hearing is misconceived and erroneous in law. He continued that the defendant in this case gave no reason for termination of the claimant’s employment contrary to his assertion that he was disengaged on ground of criminal allegation of fraud of N1, 000, 000.00 (One Million Naira) for which he was never tried or given fair hearing. Counsel then referred the court to Exhibit CW1M dated 13th March 2008, which brought the employment relationship between the parties to an end; an excerpt of which counsel reproduced as follows:
“We regret to advise the disengagement of your employment as your services are no longer required. Your account has been credited with a month’s salary being payment in lieu of notice.”
He further referred the court to the cases of Dudusola vs. Nigeria Gas Company Ltd (Supra) and Shell Petroleum Development Company of Nigeria, Ltd vs. Ifeta (Supra), where the court in the case of Shell Petroleum Development Company of Nigeria, Ltd (Supra) held as follows:
“Both in his pleadings and evidence the plaintiff concentrated so much on his allegations of bad faith, hatred, malice etc, but all these are of no consequence in determining whether or not his contract of employment was lawfully terminated by the defendant, considering that no reason was given for the determination.”
It was again submitted by counsel that both Exhibits CW1C and CW1D have not precluded the defendant from dispensing with the services of the claimant, referring the court to paragraph 3 of Exhibit CW1D titled “conduct”; that the provision is binding on the claimant, as held by the Supreme Court in A-G Rivers State vs. A-G Akwa Ibom State (2001) SCNJ @ Pg. 28, lines 5-10; that parties are bound by the provision of the contract or agreement, and cannot resile from same having later found that the conditions of the contract are not favourable to him. That in the instant case paragraph 7 of Exhibit CW1D clearly shows how the contract could be determined; which is by giving one month’s notice or paying one month’s salary in lieu of notice. He continued that the defendant has validly terminated the claimant’s employment vide Exhibit CW1M dated 13th March 2008, having credited the claimant’s account with the sum of N36, 000.00, representing his one month’s salary in lieu of notice which the claimant rejected vide Exhibits CW1N and CW1O. He continued that assuming (without conceding) that the termination of the claimant’s employment was wrongful, all the claimant would be entitled to is a month’s salary and nothing more, citing Odubeko vs. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420)96 @ Pg. 117, Paras. F-H, Mr. Keghen Joseph Tilley vs. Mr. Chigbo Okoli, Pg. 8, (Unreported) in Suit No. NICN/MKD/12/2014, delivered on 30th June, 2015. That the claimant in the instant case, having left the services of the defendant since 13th March, 2008, and has no claims to leave of absence or to salary or any other monetary payment thereof; hence cannot succeed in his reliefs as claimed in paragraph 27 (a), (b), (c), (d), (e), (f), (g) and (h), urging the court to refuse same. That granting these reliefs to the claimant would amount to reinstating him to his former position with all his rights and benefits with effect from the date of his exit from the services of the defendant, which is not permissible in law, as this would mean foisting the claimant on an unwilling defendant, referring to NDIC vs. Obende (2007) FWLR (Pt. 116) 921, Spring Bank Plc vs. Babatunde (2012)5 NWLR (Pt. 1292) 83 @ Pg. 101, Paras. C-E, KabelMetal (Nig) Ltd vs. Ativie (2001) FWLR (Pt. 66) 662. He went on that the reliefs of the claimant in paragraph 27 (a), (b) and (c) is for an order of specific performance and reinstatement as admitted by the claimant under his cross examination, which is not grantable in law.
It is the further submission of counsel that by Exhibits CW1E, CW1F, CW1G, CW1J and CW1K, the claimant was given ample opportunity of defending himself regarding the issue of “unauthorized seeking and obtaining of N1, 000, 000.00 (One Million Naira) loan from Stirling Trust Company Limited.” He referred the court to National Electric Power Authority vs. Ango (2001) 15 NWLR (Pt. 737) 627, where the court cited and quoted with approval the case of Union Bank of Nigeria Plc vs. Ariba (supra) @ Pgs. 1884 – 1885. He went on that the claim also, of (N100, 000, 000.00 ) One Hundred Million Naira as general damages for wrongful termination and injurious falsehood is equally misconceived and unknown to law, in an employment relationship of master/servant as in the instant case. To counsel, the position of the law where there is an alleged breach of contract of employment, is that damages recoverable are the losses reasonably foreseeable by the parties and foreseen or contemplated by them at the time of the contract as inevitably arising if one of the parties is in breach of the contract, citing KabelMetal Nigeria Ltd vs. Ativie (Supra). He went on to further react on the claimant’s claim of N300, 000.00 (Three Hundred Thousand Naira) as in Paragraph 27 (h) of his claim, for professional fees paid for prosecution of the claimant’s case to his solicitor. To counsel, the claim being in the nature of special damages must according to law be proved strictly; and in this case there is no evidence to support the said claim for the money allegedly paid, adopting his submissions in paragraph 6.16 regarding claim of N100, 000, 000.00 by the claimant in his paragraph 27 (f); which is applicable also to the claim in paragraph 27 (h). He relied on Guinness Nigeria Plc vs. Nwoke (2001) FWLR (Pt 36) 981 @ Pg. 998, Paras. A – B.
According to counsel, the professional fees claimed by the claimant are against professional ethics and public policy as found condemnable in Guinness Nigeria Plc vs. Nwoke (Supra).
Counsel concluded his submissions on issues 4, 5, 6 and 7, urging the court to resolve same in favour of the defendant, and dismiss the claimant’s suit in their entireties with heavy costs for lacking in merit.
In reaction to defendant’s final written address, the claimant formulated three (3) issues for determination of the court thus:
(a) Whether the defendant did breach the claimant’s Fundamental Human Rights to fair hearing pursuant to section 36 of the 1999 Constitution of the Federal Republic of Nigeria by the way and manner the defendant handled the criminal allegation of “Re-spurious crediting of N1, 000, 000.00 into Account No. 02430000180 and subsequent irregular issuance of draft” for which the claimant was suspended from work culminating into the termination of the claimant’s employment with the defendant.
(b) Whether the defendant was not in breach of the terms of the offer of appointment (Exhibit CW1C), contract of service agreement (Exhibit CW1D) and the collective agreement (Exhibit CW1P), when she claimed the claimant was on probation two years after his employment.
(c) Where the steps taken by the defendant in termination of the claimant’s employment with the defendant breached the claimant’s fundamental right to fair hearing and by the combined effect of the offer of employment, contract of service agreement and the collective agreement, the claimant cannot be on probation when the employment was terminated; would it not be right that by 13th March 2008 when the defendant terminated the claimants’ employment, the claimant was deemed a permanent staff and no longer on probation as claimed by the defendant ; is the claimant also, not entitled to all the reliefs sought from this Hon. Court by the void termination of his employment?
Regarding issue A, counsel to the claimant submitted that the defendant breached the claimants’ Fundamental Rights to fair hearing pursuant to section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) when the claimant was suspended from work, and subsequently had his employment terminated by the defendant, citing Erhovwo Ono Efera Korho vs. Delta State Judicial Service Commission (2015) ALL FWLR (Pt. 779) 1184 @ 1262. According to counsel, the allegation of “Re-spurious crediting of N1, 000, 000.00 into Account No. 02430000180 and subsequent irregular issuance of draft” is a criminal charge for which the claimant is entitled to be given adequate notice of the allegation against him, to enable him make representation in his own defence. That Exhibit CW1G dated 27th February 2006, contained the allegation against the claimant and also suspended him from work without him being heard, citing Military Governor of Lagos State & Ors vs. Adebayo Adeyiga & Ors (2012) ALL FWLR (Pt. 616) 396 @ Pg. 427 Paras D-E, where the court Per Onnoghen JSC stated thus –
“The right to fair hearing is not only a constitutional right; it is also a principle of law fundamental/pivotal to any adjudication. It has been long settled that failure to adhere to it or any breach of the right will automatically render the proceeding in which the breach occurred null and void and of no effect whatsoever, however, well conducted.”
According to counsel, by this breach, the claimant is deemed not to be on suspension and therefore entitled to full salaries and allowances due to him from the 27th February 2006 to 13th March 2008, when he was purportedly suspended and later had his employment terminated by the defendant. He then urged the court to so hold.
He further argued that Exhibits CW1Q 1, 2 and 3 shows that the One Million Naira credited to the claimants’ account is a loan facility to the claimant by Stirling Trust Company Limited; that the defendant after becoming aware of this ought to have recalled the claimant from suspension. That it was not unlawful for the claimant to apply for the said loan, which was approved on 17th January 2006 before he was employed by the defendant. He then referred the court to Exhibit CW1B dated 25th January 2006 and his employment contract with the defendant dated 1st February 2006 (Exhibit CW1D); and submitted that the claimant cannot be held liable to have breached Exhibit CW1D (contract agreement with the defendant), since the loan which the claimant applied for was executed on 25th January 2006 by virtue of Exhibit CW1B, which was long before the claimant became an employee of the defendant on 1st February 2006. He then urged the court to hold that the defendant was in breach of the claimant’s fundamental right to fair hearing pursuant to section 36 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), citing Ifeanyichukwu Okonkwo vs. Central Bank of Nigeria (2012) ALL FWLR (Pt. 605) 293 @ 318, Paras. E-G, to the effect that a decision given in breach of fair hearing must be declared to be no decision and should be set aside; urging the court to apply the same principle to the claimant’s case by setting aside the suspension and termination of the claimant been in breach of the claimant’s Fundamental Right to fair hearing.
He submitted further that although it is not in dispute that the employment in the instant case is one of master/servant, for which the master could determine without any reason as in Olatunbosun vs. N.I.S.E.R. Council (1988) 1 NSCC 1025, 3 NWLR (Pt. 80) 25; the defendant in the instant case having given a reason for suspending the claimant by paragraph 9 (c) of her statement of defence which stated thus:
“That the gross misconduct committed by the claimant leading to his initial indefinite suspension and eventual summary dismissal or disengagement was of great concern to the defendant whose banking business and operations is built on trust, transparency and accountability.”
To counsel, the defendant has failed to defend the alleged misconduct levelled against the claimant, urging the court in the circumstance to declare the purported termination of the claimant’s career of over twenty (20) years in the banking industry as a breach of the claimant’s Fundamental right to fair hearing. He then further urged the court to resolve issue A in favour of the claimant.
On issue B, counsel submitted that the defendant breached the terms of the contract agreement as contained in Exhibit CW1C (offer of appointment), CW1D (service agreement) and CW1P (collective agreement). He went on and argued that by Exhibit CW1C, Page. 2, the defendant recognized the collective agreement (Exhibit CW1P) headed “medical”, as being part of the contract, thereby making it applicable in the contractual relationship between the claimant and the defendant. That the assertion of the defendant that Exhibit CW1P was of no evidential value, for not being signed should be discountenanced. That the failure of the defendant to provide the claimant upon his employment with the original of the ASSBIF collective agreement, amounts to withholding evidence; and the defendant cannot therefore complain of the copy tendered by the claimant, citing Iweka vs. Federal Republic of Nigeria (2011) ALL FWLR (Pt. 588) 960 @ 981, Para C-E. He continued that the argument of the defendant that the claimant is not the maker of Exhibit CW1P is unsustainable, since individual employees and employers must not all sign the collective agreement before it becomes binding on them, citing Kwara State Polytechnic vs. Adefila (2008) ALL FWLR (Pt. 431) 914 @ 963 Para A-D, where the Court of Appeal stated as follows:
“……………………………..Also the industrial relations law recognizes the entry into collective agreements between an employer, a group of employers or one or two organizations representatives of employers and one or more trade unions or organizations representing workers or the duly appointed representative of any body of workers on the other hand. ………………….It is clear that an employee like the claimant need not personally sign a collective agreement between the representatives of the employees and the employers before enforcing the collective agreement. The only condition of enforceability of collective agreement is whether it was incorporated into the conditions of contract of service…………It is definitely necessary to expressly adopt agreement either in the letter of appointment or a subsequent communication varying the terms of employment before the employee can enforce its contents.”
Counsel submitted based on the above, that the defendant in this suit has adopted or incorporated the collective agreement into the offer of appointment dated 23/01/2006 with the commencement date of 1st February 2006; urging the court to hold that the condition precedent for the enforcement of collective agreement is already fulfilled. He further urged the court to recognize Exhibit CW1P as a proper document before the court, and use same in its judgement in this action. He further argued that the defendant breached the terms of the contractual agreements as per Exhibits CW1C, CW1D and CW1P in keeping the claimant on purported probation from 2006 to 2008. He referred the court to Exhibit CW1C which provides a fixed probationary period of twelve months, while Exhibit CW1D which is the contract of service agreement executed between the parties on 1/2/2006, item 9 headed “probation”, states as follows:
“The official shall serve a probationary period of six months and if in the opinion of the Bank at the end of such probationary period of the official’s work and conducts are satisfactory he shall be put on the Bank’s permanent clerical staff. The Bank may in its discretions extend such probationary period beyond the end of such six months (but so that such probationary period shall not exceed twelve months).
According to counsel, by virtue of Exhibits CW1C, CW1D and CW1P, an employee as the claimant in this suit can only be on probation for at most twelve (12) months. That the defendant by keeping the claimant on probation from 1st February 2006 to 13th March 2008 for a period of more than twelve months is in breach of the terms of the contract agreement, relying on Union Bank of Nigeria Plc vs. Alhaji Adams Ajabule & Anor (2012) ALL FWLR (Pt. 611) 1413 @ 1438 paras B-D, where the Supreme Court held that:
“A written contract agreement entered into by the parties is binding on them…………………The reason being that where the intention of the parties to the contract is clearly expressed in a document, the court cannot go outside the document in search of other documents not forming part of the intention of the parties.”
To counsel, the documents to be examined in the instant case are Exhibits CW1C, CW1B and CW1P, where the intention of the parties to this contract were expressed in relation to probation period which fixed the minimum probation period to six (6) months and the maximum period to twelve (12) months and no more. He continued that by Exhibits CW1C, CW1D and CW1P, the claimant became a staff of the defendant on 1st February 2006, and the maximum period of probation terminated on 1st February 2007; and he is thus deemed to be no longer on probation but a permanent staff who is entitled to be disengaged from service on full benefits, citing Timothy vs. Oforka (2008) 9 NWLR (Pt. 1091), 204. He then urged the court to hold in favour of the claimant.
Regarding issue C, counsel submitted that the steps taken by the defendant in terminating the claimant’s employment breached his fundamental right to fair hearing; since the claimant by Exhibits CW1B, CW1D and CW1P is deemed to be a permanent staff and not a staff on probation. To counsel, the said termination is unlawful, void and of no effect; as a result the claimant is entitled to special and general damages as averred in paragraph 27 (a) – (f) of his reliefs as claimed in this action. He went on that the claimant is entitled also, to the reliefs as claimed in paragraph 27 (g), which were his entitlements illegally withheld or deducted by the defendant during the period of his suspension.
In conclusion, counsel submitted that the manner in which the claimant’s employment was terminated breached his Fundamental right to fair hearing and also the terms of Exhibits CW1C, CW1D and CW1P; as a result the claimant is entitled to all the reliefs as claimed in paragraph 27 (a) – (g) of the claimant’s claim in this action.
The defendant in reaction to the claimant’s address on points of law, submitted that the claimant’s employment is not statutory but a master/servant relationship; as a result the grant or award of the reliefs as claimed by the claimant is dependent on the type of employment relationship which existed between the parties, relying on the decision of this court in Engr. Andrew Chile vs. Jeremiah Marcus & Anor (Unreported) Suit No. NICN/MKD/46/2014, delivered on the 11th November 2015, where the court held that-
“………………………………….The duty of determining the nature of a contract of employment, whether it is governed by statute or it is under the common law creating a master and servant relationship is the exclusive preserve of the courts. Under a contract of employment, the courts and parties have their duties, rights and obligations in the determination of such contract depending on whether it is an employment with statutory flavour or under the common law.”
Regarding the reliefs and damages claimed by the claimant, the defendant counsel again reiterated referring the court to the case of Ifeta vs. S.P.D.C. of Nig. Ltd (Supra); to the effect that the proper measure of damages in an action for wrongful termination which the defendant assumes in the instant case (without conceding), is what the employee would have earned within the period of notice required to properly bring the employment to an end in accordance with the terms of the contract. He went on, relying on the case of Amadiume vs. Ibok
(2006) ALL FWLR (Pt. 321) 1247 @ Pg. 1269 Paras. B-C. That the defendant in the instant case has the right and competence to suspend his employee or servant when necessary and such cannot amount to a breach of the servant’s fundamental rights. Counsel then urged the court to discountenance the entire submissions of the claimant in this regard, as they are misconceived and are unhelpful to his case. In conclusion, counsel further urged the court to dismiss this action in its entirety with substantial costs for lacking in merit.
I heard learned counsel in the matter and equally considered all the processes filed and evidence adduced before the court in this action; and from all of the issues distilled by the parties, this court has summarised same thus:
1. What is the nature of the employment relationship in this case?
2. Whether or not the claimant can rely on the collective agreement (Exhibit CW1P) to ground his reliefs as claimed.
3. Whether or not the claimant’s employment was wrongfully terminated to entitle him to the reliefs as claimed in this action.
It is obvious that the first issue seem not to be in dispute, as observed from the submissions of counsel to the parties, i.e. the employment relationship which existed between the parties in this case, which is undoubtedly one of master and servant. And it is typical by the nature of such relationship, that the master as the employer or (defendant) in this case has the unfettered right and liberty to determine the employment of the servant as his employee (claimant) in this case with or without any reason given. What the law only requires is that in the event of determination of the relationship, such should be done in accordance with the terms of contract as agreed by the parties; a breach of which will therefore amount to wrongful termination of such an employment. The employee then, whose employment has been wrongfully terminated, is entitled to damages for only the amount he would have earned if his appointment had been properly determined. Our law reports are replete with a catalogue of cases on this subject. See Katto vs. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390, Ben Chukwuma vs. Shell Petroleum Dev. Co. Nig. Ltd (1993) 5 SCNJ 22, Western Nigeria Development Corporation vs. Abimbola (1966) NMLR 381, Shell Petroleum Development Co. (Nig.) vs. Ifeta (2002) 11 NWLR (Pt. 724) Page.473.
The claimant in this case is not contending the nature of his employment as one of master/servant. His grouse is that the steps taken by the defendant in terminating his employment breached his fundamental right to fair hearing; since he is deemed to be a permanent and not a probationary staff by virtue of Exhibits CW1C, CW1D and CW1P. That the said termination is unlawful, void and of no effect; hence his reliefs as claimed. What the claimant has failed to realize here is that the court cannot rewrite the contract for the parties. It is at the discretion of the defendant in the instant case to confirm the claimant as its permanent staff where it deems it fit. For the claimant to therefore deem himself a permanent staff without evidence in support of same is clearly misconceived and his argument in that regard is unsustainable. More so, it is settled law that in a simple common law relationship of master and servant, the termination of such contract of service, even if wrongful, brings to an end the contract of service simply because a master cannot be foisted on an unwilling servant, so also can a servant not be compelled to remain in the services of a master. The motive which led to an employer to terminate his servant’s employment is not normally a relevant factor and the court will have no business with such motive but will only give effect to the contract of service between the parties. See Ajayi vs. Texaco Nig. Ltd. (1987) 3 NWLR (Pt. 62) 577.
Furthermore, the argument of claimant’s counsel concerning an infraction of claimant’s right to fair hearing overlooks the fact that the defendant in the instant case had not ascribed any reason for the termination of the claimant’s employment in Exhibit CW1L dated 13th March 2008. The issue whether the claimant had or had not been guilty of any misconduct was wholly irrelevant to the exercise by the defendant of its right to determine the employment with or without notice as provided in item 7 of the contract agreement (Exhibit CW1D) in the instant case.
The position of the law is that Fair hearing does not necessarily mean oral representation. It is enough if it is in writing; and where an employer accuses an employee of misconduct by way of query and allows the employee to answer the query before the employer takes a decision that satisfies the requirement of fair hearing. The employer need not show motive for termination of employment. See Imonikhe vs. Unity Bank Plc (2011) 12 NWLR (Pt. 1262) Pg. 624 @ 648, Paras F – G, Lake Chad Research Institute vs. Mohammed (2004) AFWLR (Pt. 225) Pg. 40 @ Pg. 60 Para F – G.
The claimant in this case was queried vide Exhibit CW1E for facility obtained from Stirling Trust Company, in the sum of N1, 000, 000.00 (One Million Naira) alleged to have been credited to the claimant’s account which was later utilized and reversed by him. To the defendant the claimants’ action was in breach of the established policies and procedures of the bank, referring to item 5 of the service agreement (Exhibit CW1D). This necessitated the disciplinary action against the claimant by the defendant, by his indefinite suspension (Exhibit CW1G) dated 27th February 2006. As a general rule, a master as in the instant case can suspend his servant when necessary. This cannot amount to breach of the servant’s fundamental human rights, since it is in accordance with judicial decisions and business practice to ask an officer who is under investigation to stay away from the place of work to permit unhindered investigation to be carried out. The principle of fair hearing at this stage is shut out, and also principle of natural justice kept in abeyance. See Sea Trucks (Nig) Ltd vs. Anigboro (2001) 2 NWLR (Pt. 696) Pg. 159 @ Pg. 173, Paras G-H; Pg. 179 Paras B-D, Per Ogundare JSC, Longe vs. First Bank of Nigeria Plc (2006) 3 NWLR (Pt. 967) Pg. 228 @ 265 Paras G-H; Pg. 268 Paras B-H. The position as obtainable under Common Law is that a term entitling the employer to suspend the employment of an employee will not be implied into the contract of employment; since it is usually a step taken in the interest of the employer’s business, as in the cases of Sea Trucks (Nig) Ltd vs. Anigboro (Supra) and Longe vs. First Bank of Nigeria Plc (Supra).The suspension in the circumstance cannot amount to a breach of the servant or employee’s fundamental or common law rights, as applicable also in the instant case. See Ayewa vs. University of Jos (2000) 6 NWLR (Pt. 659) Pg. 142 @ 144 Paras C-D, Paras. G-H, Per Belgore JSC.
I examined exhibits CW1E, CW1F, CW1G, CW1H, CW1I and CW1J; and find them as correspondences exchanged between the claimant and the defendant regarding the claimant’s suspension, before the final termination of his employment by the defendant. In other words, the claimant was given the opportunity of being heard, and cannot complain that he was not accorded fair hearing. The claimant under his cross examination admitted to have obtained the said loan of N1, 000, 000.00 from Stirling Trust Company Limited, but that the loan was before he joined the defendant bank on 23rd January 2006, while he got access to the loan on 15/02/2006. He admitted he did not make disclosures to the defendant bank regarding the said loan before his employment with the defendant, since he was not requested to make such disclosures. He further testified that he didn’t need the consent of the defendant to use the loan. He however, denied having obtained the loan without the consent of the defendant. In all, the claimant maintained that his employment was regulated by Exhibit CW1D (contract agreement), which is subject to Exhibit CW1P (collective agreement). The evidence of Abuh Odeje (DW) under his cross examination regarding Exhibit CW1D is in support of claimant’s testimony that the claimant’s employment is regulated by the contract agreement. DW however, testified that he was unaware of the existence of any union in the defendant bank.
Upon a critical examination of Exhibit CW1B (offer letter of N1, 000, 000.00 loan) from Stirling Trust Company Limited in favour of the claimant, I observed that the document was executed on 25th January 2006, while the claimant was offered appointment by the defendant on 23rd January 2006, although effective 1st February 2006. It is thus obvious from the above dates that the claimant was offered employment by the defendant before the execution of the loan agreement by him on 25th January 2006; and ought to have made such disclosures to the defendant in line with the terms of contract between the parties. See paragraphs 13 and 15 of the written deposition on oath of DW, Mr. Abuh Odeje dated 22nd June 2015. From the written statement on oath of the DW, the suspension and disengagement of the claimant was justifiable; as the claimant breached paragraphs 2, 3, 4 and 5 respectively headed as: Duties and Secrecy, Conduct, Official not to engage in any other conduct, Borrowing and Lending as contained in the terms and conditions of the contract of service governing the employment relationship between the parties.
The claimant having admitted that his employment is regulated by Exhibit CW1D is
bound by same, having freely entered into it, and the court will not in this case sanction an unwarranted departure from the terms and conditions of the contract unless they have been lawfully abrogated and discharged. See Jeric (Nig) Ltd vs. Union Bank Nigeria Plc (2000) 15 NWLR (Pt. 691) Pg. 447 SC @ Pg. 462-463, Paras G-A, Pg. 446 Para C, Astra Industries (Nig) Ltd vs. Nigerian Bank for Commerce and Industry (1998) 4 NWLR (Pt. 546) Pg. 357 SC @ Pg. 376 Para E. It is settled law that where the words of a contract or agreement are clear, the operative words in it should be given their simple and ordinary grammatical meaning. The court cannot legally or properly read into the agreement, the terms on which the parties have not agreed. See Dalek Nigeria Ltd vs. Oil Mineral Producing Areas Development Commission (OMPADEC) (2007) 7 NWLR (Pt. 1033) Pg. 441 Paras A-B. This now takes me to Exhibit CW1P (collective agreement) between the Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). Generally speaking, the position of the law regarding the legal status of collective agreements as adopted by the regular courts, is that collective agreements are binding in honour only and unenforceable since the parties to the agreement do not intend to enter into any legal relations. The court Per Tobi JCA (as he then was), on this same issue in African Continental Bank Plc vs. David O. Nwodika (1996) 4 NWLR (Pt. 443) 470, held thus –
“It is clear from the state of the case law that where a collective agreement is incorporated or embodied into the conditions or contract of service, it will be binding on the parties. The court is therefore to be guided by the affinity of the language which must invariably draw the required legal nexus. In the absence of clear language, the court will not be wrong in searching for the real intention of the parties, and it is whether they really intended in a case of dispute that the two documents should be read together is the court’s duty to decide.”
Since the defendant in the instant case has not incorporated the collective agreement (Exhibit CW1P) into the contract agreement (Exhibit CW1D), it cannot thus be made the basis of an action by the claimant in this case. I must observe that the collective agreement in the instant case is incomplete and not also signed, though the claimant in paragraph 2 (a) – (d) of his reply to defendant’s statement of defence said he would found on it, as what governs the employment relationship between the parties. The argument of the claimant is that Exhibit CW1C (offer of appointment) under the heading “Medical” did incorporate the collective agreement. In my view, I do not see how this argument could be sustained, where either Exhibit CW1C (offer of appointment) or Exhibit CW1D (contract agreement) have not wholly incorporated Exhibit CW1P (collective agreement) as part of the terms and conditions of the claimant’s employment, with the intention of making it binding on the parties.
Furthermore, there is no evidence that the claimant in the instant case as an employee of labour subscribed to the collective agreement. The general rule is that only parties to a collective agreement can benefit from its terms through their union which entered into the agreement. For an individual member, as the claimant in this case to derive any benefit from any collective agreement, he must show by evidence that he was a member of ASSBIFI. This is the line of argument of the defendant which I do entirely agree with, that Exhibit CW1P cannot avail the claimant in this case to ground his claims in this action, as I do so hold. See Itodo vs. Chevron Texaco Nigeria (2005) 2 NLLR (Pt. 5) 200, Gbadegesin vs. Wema Bank Plc (Unreported) judgement in Suit No. NIC/57/2008 delivered on February 23 2012. In any event, assuming (without conceding) that Exhibit CW1P was incorporated in the contract agreement of the parties, the fact that it remains unsigned, incomplete and undated renders it worthless. This is because an unsigned document in law has no origin in terms of its maker. Even if it is admitted in evidence, the court should not attach any probative value to it. See Omega Bank (Nig) Plc vs. OBC Ltd (2005) 8 NWLR (Pt.928) 547 @ 581, Paras C-D. I reiterate that Exhibit CW1P cannot thus be made the basis of an action by the claimant in this case, as I so find and hold.
I stated earlier on in this judgement that the employment relationship of the parties is regulated by the contract agreements (Exhibits CW1C and CW1D); and the defendant in this case is at liberty and has the right to terminate the employment relationship with or without any reason given, as in this case. More so where the claimant in this case was found to have breached the terms and conditions of the contract agreement; his suspension and the subsequent termination of employment by the defendant was justifiable and in accordance with item 7 of the terms and conditions of his employment (Exhibit CW1D), and therefore not in breach of the claimant’s fundamental rights to fair hearing as asserted by the claimant. In the present case, the contract agreement makes provision for one month’s notice in writing or one month’s salary in lieu of notice. The claimant in this case is only entitled to remedy in damages, as the court cannot in this case award specific performance of contract of employment unless it is with statutory flavour, and will not also regard the employment as still subsisting See Layade vs. Panalpina (1996) 6 NWLR (Pt. 456) Pg. 544 @ Pg. 555 Paras. F-G, Ilodibia vs.NCC Ltd (1997) 7 NWLR (Pt. 512) Pg. 174 @ Pg. 187 Paras. F-H.
Having held that the claimant’s suspension was justifiable, and the termination also not wrongful, he cannot therefore succeed in the reliefs as per paragraph 27 and 27 (f) for the payments of N1, 071, 528.00 (One Million and Seventy One Thousand, Five Hundred and Twenty Eight Naira) and N100, 000,000.00 (One Hundred Million Naira) respectively as special and general damages for wrongful suspension and termination of appointment. For this reason, the claimant is not entitled to these reliefs, and they are accordingly dismissed.
Regarding relief h) prayed for “the payment of the sum of N300, 000.00(Three Hundred Thousand Naira) being the claimant’s legal cost in instituting this action against the defendant”. The claimant has not made out a case for relief h). The claim for it accordingly fails and is hereby dismissed.
It follows therefore from the above, that the claimant in this action is entitled only to one month’s salary in lieu of notice of termination and any other entitlements that may be due or accruable to him if any, as a result of the termination of his employment by the defendant and nothing more.
For avoidance of doubt, the claimant is not entitled to all the reliefs sought as per paragraph 27 (a) – (f) of his statement of facts before this court. It is therefore declared and ordered as follows:
1. The claimant’s suspension and termination of his employment by the defendant were not wrongful.
2. The defendant shall pay to the claimant within 30 days of this judgement his one month’s salary in lieu of notice of termination, and any other entitlements that may be accruable or due to him, if any.
Judgement is entered accordingly. I make no order as to cost.
Hon. Justice R.B.Haastrup