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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: July 10, 2015 SUIT NO. NICN/LA/535/2012 BETWEEN MRS. NGOZI EZIGBO - CLAIMANT AND KEYSTONE BANK LIMITED - DEFENDANT REPRESENTATION E. I. Emmanuel for claimant. Uche.V.Obi, with him G.O. Onojason, I. Ifediba (Miss) for defendant. JUDGMENT The claimant filed a complaint against the defendant on the 22nd October 2012. By an amended complaint and statement of facts filed on 11th April 2013, she is seeking the following reliefs: 1. A declaration that the refusal and or failure of the defendant to elevate the claimant from the post of Assistant Vice President to that of Vice President of the defendant after the claimant had satisfied the conditions and met the target set for her by the defendant as stipulated in her letter of appointment, is a breach of the defendant’s contractual obligation to the claimant as well as an Unfair Labour Practice for which the claimant is entitled to claim damages. 2. A declaration that the defendant’s action in demanding for the immediate resignation of the claimant coupled with the threat of instant dismissal if she fails so to do is an Unfair Labour Practice for which the claimant is entitled to claim damages. 3. An order directing the defendant to pay to the claimant the sum of N2.5 million being the deferential in salary of Assistant Vice President and Vice President that would have accrued to the claimant had she been promoted to the post of Vice President from the 10th of February 2009 till her forced resignation, on the 31st of July 2009. 4. An order directing the defendant to pay to the claimant the differentials in emoluments that would have accrued to her if she had been promoted to the post of Vice President, which differential are as set out in paragraph 24 of this statement of facts. 5. An order directing the defendant to pay to the claimant the sum of N17,500,000.00 as general damages for breaches in Claims 1 and 2 above. 6. A declaration that the defendant is not entitled to repossess any of the Bank’s assets with the claimant until the issue of the claimant’s entitlements, severance package and or damages claimed herein are finally determined in this suit. 7. An order of injunction restraining the defendant, its agents, servants or privies from repossessing any of the assets of the defendant in the claimant’s possession pending the determination of this suit. 8. An order that all outstanding due from the claimant to the defendant either by way of loan, cars and generator be repaid back by the claimant based on the agreement reached with the defendant at the time of the claimant’s employment and in accordance with defendant’s usual practice. 9. Cost of initiating this action estimated at N5,000,000.00 (Five Million Naira) or any sum as may be awarded by the court. The defendant entered conditional appearance on the 10th December 2012 and filed its statement of defence and accompanying processes on the 27th February 2013. There was a further amendment to the statement of defence and a counterclaim filed on 25th April 2013. The defendant counter claimed as follows: i. The sum of N3,545,639.56 being the staff loan granted the defendant to counter-claim in the course of her employment as a staff of the counter-claimant. ii. The sum of N3,364,583.35 being 50% of the value of the new Prado Jeep status car given to the defendant to counter-claim which initially stood at N6,729,166.70 and she has held on to it till date. iii. Interest on the total sum of N6,454,510.39 representing the defendant counter-claim’s indebtedness to the counter-claimant at the commercial banking interest rate of 25% starting from 22/11/09 until the judgment. iv. Interest on the entire judgment sum at the rate of 10% per annum until the debt is fully satisfied. v. The return of all the Bank’s properties in the defendant to counter-claim’s possession since 2009 till date. vi. The sum of N4,000,000 (Four Million Naira) only being the cost of this action. The claimant filed a reply to the further amended statement of defence and a defence to the counterclaim on 9th July 2014. The matter then went to trial. The claimant’s case on the pleadings is that she is a former employee of Bank PHB whose operating license was revoked by the Central Bank of Nigeria and the defendant is the successor- in-title to the defunct Bank PHB. She pleaded that she began her banking career on 17th August 1992 with Citi Bank and was there until June 2006 when she resigned as a Manager to take up appointment from July 2006 with First City Monument Bank as Assistant Vice President. In 2008, she applied for and was interviewed for the post of Vice President in Bank PHB presided over by Mr. Emma Abugu, an Executive Director of the Bank. The claimant averred that she made it known to the defendant at the interview that the grade level she was interested in is a grade level higher than what she was occupying at First City Monument Bank. That after the interview, she was offered the position of Assistant Vice President which was a position lower than what she applied for. The claimant averred that she was reluctant to accept the offer but was assured that the appointment at the level of Assistant Vice President was temporary and that her position will be upgraded to that of Vice President upon the confirmation of her appointment after six (6) months and her meeting the target set for her during the probation period. The claimant pleaded that on observing that her letter of appointment dated the 26th of June 2008, was silent on these assurances, she asked Mr. Abugu that she be given a letter to that effect but he informed her that in Bank PHB, their word was their bond and to further assure her, he arranged a meeting with the Managing Director in attendance to confirm the assurances given to her. That it was after this assurance she accepted the offer dated the 26th of June 2008. The claimant averred that based on the assurances at the meeting she requested for and was given an official car equivalent to the status of Vice President. That few weeks to her confirmation in February 2009, she approached the new Executive Director Mr. Julius Okotako to inform him that her confirmation was due and to also intimate him of the commitments made to her prior to her assumption of duty but he was non-committal in his response; and even though she had exceeded the target set for her, the defendant only confirmed her appointment and failed to promote her. The claimant averred that in June 2009, being aware that another promotion exercise was due in July, she again approached the Executive Director to remind him of the earlier commitments made to her and he asked her to wait till the following year. The claimant pleaded that she wrote a Memo to the Executive Director, the Divisional Head of Human Resources (Miyen Swowen) and the Managing Director (Mr. Atuche) in which she referred to the commitments made to her prior to her assumption of duties and requesting that she be recommended for promotion but she was not promoted by the defendant which is a breach of the defendant’s contractual obligation to her as contained in her letter of appointment. That if she had been promoted to the position of Vice President, her annual salary would have been N22.5 million instead of N17.5 million paid as annual salary to an Assistant Vice President and she would have been entitled to receive the other allowances and entitlements attached to the office. She pleaded that she is entitled to claim for the differential in salary from the period of 10th February 2009 to the 31st of July 2009. The claimant pleaded that she did not receive any communication from the defendant until 31st of July 2009, when Miyen Swomen invited her to his office for a meeting and informed her that the Management of the defendant had asked her to resign her appointment with effect from that day. The claimant averred that up till the 31st of July 2009, when she was asked to resign, she had discharged her duties effectively and never received any query or complaint in relation to the performance of her duties to the defendant. That in order to avoid being dismissed she decided to put in her letter of resignation by electronic mail the receipt of which was acknowledged by the defendant. The claimant averred that she resigned as a result of the threat of dismissal by the defendant, and that the defendant’s demand for her immediate resignation, coupled with the threat of dismissal if she fails to do so, is an Unfair Labour Practice for which she is entitled to damages. That in the circumstances she could not have given any notice period of resignation to the defendant and that her forced resignation has not only stalled her career but has also forced her into the labour market against her wishes. The claimant pleaded that she demanded to know her terminal benefits from the defendant having been forced out of employment. That Mr. Swowen informed her by a text message that the defendant was willing to waive 50% of the value of the status car while she is expected to pay the 50% balance in addition to the full cost of the 27KVA Generator and all her outstanding loans. The claimant averred that she also received a letter dated 3rd of November 2009 from the defendant requesting her to pay a total sum of N6,545,510.39 being her outstanding indebtedness before her resignation letter can be accepted by the Bank. The claimant averred that the forced resignation and the severance proposed by the defendant is unfair and will impact negatively on her welfare and financial well-being. That it was an implied term of her contract of employment that her employer would not interfere with her employment or do anything to violate or prevent her from carrying on her duties. She pleaded that her forced resignation has caused her hardship and made it difficult for her to meet her financial commitments which ordinarily would have been met, if she had not been forced to resign. That if she is to be compensated and put in a financial position that she would have been if she had not been forced to resign, she is entitled to one (1) year salary in lieu of notice, benefits and allowances included. The claimant averred that when she took the loan from the defendant, it was never contemplated by the parties that she would have to repay same in the manner proposed by the defendant. That it was not the intention of the parties to have the loan foreclosed at the time of her resignation or removal and that the defendant’s decision to demand immediate payment of her loan obligation is malicious and calculated to deprive her of a fair monetary compensation. The claimant pleaded that if she had not been forced to resign her appointment abruptly by the defendant, she would have been in a position to repay the personal loan from the monthly deductions made from her salary and that her forced resignation from the bank has now made it impossible for her to discharge her financial obligation towards the defendant. That it is customary for top Executives in banks to be given the option to purchase the cars and other items allocated to them, and the resignation forced upon her has deprived her of this opportunity of exercising her option to purchase those items on favorable terms. The claimant pleaded that the defendant is not entitled to recover the car and other assets in her possession until the issue of her entitlement is resolved. That she has indicated interest in purchasing some of the assets in her possession but will not be in a position to make the purchases until the issue of her severance package is resolved. The claimant testified in support of her claims. Her evidence in chief was by witness statement on oath which she adopted. It was in the exact terms of the pleadings. Under cross-examination she told the court that the promise that she will be promoted to the next position after six months is not in her letter of employment. She informed the court that she worked for the defendant for eleven months and that the defendant put in place criteria for promotion which is dependent on availability of vacancy. The claimant told the court that Mr Miyen Swowen threatened her orally over the telephone with dismissal if she did not tender her letter of resignation. She told the court that she was not accused of any misconduct but was forced to resign because she asked for her rights. The claimant admitted that she was in possession of the defendant’s Prado Jeep and 27 KVA Generator. She also told the court that she is indebted to the defendant in the sum of N3.4million and that she has not made any proposals to repay it. The claimant then closed her case. The case of the defendant on the pleadings is that the claimant was offered employment as Assistant Vice President at the defendant’s Commercial Banking Directorate Apapa, Branch, with effect from 1st July, 2008 on a monthly basic salary of N550,000. She was employed by letter dated 26th June, 2008 until her voluntarily resignation from the defendant by her letter of resignation of appointment sent by e-mail on 31st July, 2009. The defendant pleaded that no higher position was made the subject matter of any interview or discussion with the claimant but rather the discussions centred on the vacant position of Assistant Vice President offered to her. That it was part of the terms and conditions of the claimant’s employment that either party shall determine this contract by giving one month notice or payment for the same period in lieu of notice’. The defendant pleaded that the claimant voluntarily resigned her appointment on the 31st July, 2009 in breach of the said terms of employment; and that it was part of the terms of employment that the Human Capital Staff Policy Handbook will regulate the claimant’s employment. The defendant pleaded that the claimant’s employment was governed by the letter of appointment; the terms and conditions were duly accepted by her and her appointment was confirmed by letter dated 2nd March, 2009. That in the course of the claimant’s employment she was giving a brand new Prado jeep car valued at N6,729,166.70 which she has refused to repay and has continuously held on to it till date. That no assurances were given based on her request for an official car and that the status car of a Prado Jeep was approved simply to motivate her on the job and nothing more. The defendant pleaded that promotion is neither automatic nor as of right and that the claimant cannot lay claim to achieving set targets without confirmation from her supervisors and Group Head. The decision to promote any staff lies solely with the Bank Management and the claimant was never promoted. The defendant pleaded that Mr. Swomen never asked the claimant to resign rather she voluntarily resigned her employment as Assistant Vice President on 31st July, 2009 vide electronic mail and was never forced to resign. That it acknowledged the receipt of the claimant’s letter of resignation effective from 31st July, 2009 and out of sheer magnanimity granted a reprieve of her indebtedness by writing off 50% of the value of the claimant’s status car (N3,364,583.35) bringing the claimants indebtedness to the Bank in the sum of N6,454,510.39 (Six Million, Four Hundred and Fifty-Four Thousand, Five Hundred and Ten Naira, Thirty-Nine Kobo) as at 21/10/09. The defendant averred that the claimant was advised in writing to pay all outstanding indebtedness from staff loans and unearned allowances which would begin to attract the prevailing commercial interest rate within 30 days and return all the defendant’s property in her possession. That the claimant has refused to return the status car valued at N6,729,166.70 which she has converted to her own use and its other properties in her possession, neither has she settled her outstanding indebtedness. The defendant averred that the claimant is not entitled to compensation for wrongful or unfair dismissal. That rather, the claimant is in breach of the contract of employment having resigned on her own volition without giving the requisite three months notice and is estopped by conduct from claiming or obtaining benefits based on unfair dismissal. The defendant stated that despite demands made to the claimant to liquidate her total net indebtedness which stands at six million, four hundred and fifty-four thousand, five hundred and ten naira, thirty-nine kobo (N6,454,510.39) as at 21st October, 2009, the debt remains unpaid till date. The defendant pleaded that it availed the claimant with a staff loan of N3,545,639.56 which she has refused and neglected to pay back till date and that it has incurred great cost in defending itself against this suit and also in the bid to recover the debt owed it by the claimant since 2009. The defendant called one witness Oluyemisi Wole-Ojomo (DW) the Head of Human Capital Management Operations. Her evidence in chief was by witness statement on oath which she adopted. It was in the exact terms of the pleadings. Under cross-examination, DW told the court that she had no knowledge of any oral communication between the claimant and her predecessors and that the claimant resumed as Assistant Vice President based on the contract letter. DW informed the court that the claimant’s career progression was subject to specific targets which she said she was not aware of. DW informed the court that the defendant took over the claimant’s loan from her previous employer First City Monument Bank and that the claimant paid back part of the loan from her monthly salary but she did not know how much was repaid. She told the court that the claimant sent in her letter of resignation by email using a Blackberry Phone and that her position was Assistant Vice President. DW told the court that no exit interview was held with the claimant neither was she given an exit package because she was indebted to the Bank. The defendant then closed its case. The Parties were directed to file their final addresses. The defendant’s final address is dated 26th February 2015 and filed the same day. The claimant’s address is dated 17th March 2015 and filed on the 18th March 2015. The defendant’s reply on point of law is dated 18th March 2015 and filed on 19th March 2015. Counsel adopted their final addresses. Learned counsel to the defendant raised two issues for determination as follows: 1. Whether considering the totality of the evidence before this Honourable Court, the claimant has proved her heads of claims as to entitle the claimant to the reliefs sought? 2. Whether in the circumstances of this case and the evidence before this Honourable Court, the defendant is entitled to its claim as contained in its counter-claim? It was his contention that considering the totality of evidence led by the claimant, she has failed to prove all claims as required by law. He submitted that damages are the pecuniary recompense given by process of law to a person for the actionable wrong that another has done which will make good or replace the loss caused by the wrong or injury and nothing more. He further submitted that special damages must be specially pleaded, backed up by credible evidence adduced before the court and strictly proved. He submitted that salaries, allowances and other emoluments are special damages which must be specifically pleaded and proved if they are to be claimed citing Oyetayo v Zenith Bank [2012] 29 NLLR (Pt. 84) 439 NIC, Warner & Warner International v Federal Housing Authority [1993] 6 NWLR (Pt. 298) 148; SPDC Ltd v Tiebo VII (supra), Shell Petroleum Development Company Ltd v Tiebo VII [1996] 4 NWLR (Pt. 445) 657, Imana v Robinson [1979] 3 S.C 1; Nzeribe v Dave Engineering Co. Ltd [1994] 8 NWLR (Pt. 361) 124. Learned counsel argued that the claimant has listed two heads of claim of special damages without any proof of them and they must therefore fail relying on Section131 of the Evidence Act, 2011. Learned counsel submitted that both parties have embodied the terms of the contract of employment in a written document, therefore extrinsic/oral evidence is not admissible to add to, vary, subtract from or contradict the terms of the written contract referring to Section 128 (1) of the Evidence Act 2011, Bongo v Gov Adamawa State [2013] 2 NWLR (Pt. 1339) 403.Olaoye v Balogun [1990] 5 NWLR (Pt. 148) 24; Eke v Odolofin [1961] 1 All NLR 842; Macaulay v NAL Merchant Bank [1990] 4 NWLR (Pt. 144) 283; UBN v Ozigi [1994] 3 NWLR (Pt. 333) 385. He urged the court to discountenance all the assertions of the claimant that other assurances outside her clear terms of employment contract were made to her contrary to the defendant’s promotion policies as contained in the Human Capital Management Manual. He submitted that the duty of the Court is to interpret those clauses written in contractual document in their simple and ordinary grammatical meaning citing and that promotion is not automatic or as of right as the procedure has been provided in the defendant’s manual. Learned counsel submitted that on the evidence adduced, the claimant voluntarily resigned her appointment with the Bank in breach of her terms and contract of employment without giving the requisite notice and is estopped from alleging that her resignation was forced upon her or that there has been an unfair labour practice against her. That to be an unfair labour practice it must be established that the practice does not conform with best practice in labour circles as may be enjoined by local and international experience. Counsel submitted that the claimant’s claim of unfair practices against the defendant are not only unfounded, they are a sham and none of her claims can be situated within the context of unfair labour practices. That she has failed to substantiate her allegations of unfair labour practice, and has not led any evidence on this. He submitted that the Solicitor’s letter cannot be proof of an entitlement or proof of anything other than a demand made for the claims at the claimant’s instructions and cannot be used as proof of the content therein citing Severinsen v EMTS Ltd [2012] 27 NLLR (Pt. 78) 374 NIC. He submitted that the claimant is not entitled to claim both general and special damages at the same time; that the claimant, having claimed for and itemized all her special damages, cannot simultaneously claim for or recover any general damages as that would amount to double compensation, which the law frowns upon. He urged the court to hold that the claimant’s claim for general damages is incompetent and tantamount to duplicity. On the claim for costs of the action, he submitted that costs are awarded to a successful party in a suit and the award of costs is discretionary citing Ozigbu Eng. Co. Ltd. v Iwumadi [2009] 16 NWLR (Pt.1116) 4 at 72-73, Paras. H-C, Haco Limited v S.M. Daps Brown [1974] 4 SC 103 at 107. On the counter claim, learned counsel submitted that the defendant/counter-claimant is entitled to the reliefs claimed having proved by the admission of the claimant during cross examination that she is not only indebted to the defendant but she is also holding on to the properties of the defendant in her custody without any lawful order in spite of the repeated demands made on her to pay up her debts and return the Bank’s properties in her custody. He further submitted that the evidence shows that the claimant is in breach of her employment terms and the defendant is entitled to one month salary payment by the claimant in lieu of her failure to give the requisite notice. He submitted that the claimant has admitted her indebtedness which facts need not be proved again relying on Section 123 of the Evidence Act, Federal Ministry of Health v CSA Ltd [2009] All FWLR (Pt. 483) 1260 SC Narindex Limited v NIMB Limited (supra); Reptico S.A. Geneva v Afribank (Nig) Plc [2013] 14 NWLR (Pt. 1373) 172. Taiwo v Adegbenro [2011] All FWLR (Pt. 584) 52 at 67. Learned counsel to the claimant did not formulate issues but adopted the issues formulated by the defendant for determination. On issue 1, he submitted that there is no evidence before the court that the defendant rebutted any of the assertions made by the claimant in Exhibits C2 and C3 either in respect of the assurances of promotion upon confirmation or on the achievement of the target set for her by the defendant. He further submitted that it is an unfair labour practice for the defendant to now turn round to rely on some clauses in the staff handbook which stipulates a longer and more rigorous process of assessment for promotion not contemplated by the parties at the time the assurances and commitments were made to the claimant. That the refusal of the defendant to elevate the claimant from the post of Assistant Vice President to Vice President after she satisfied the conditions and met the target set for her as stipulated in her letter of appointment, is a breach of the defendant’s contractual obligation to the claimant as well as an unfair labour practice for which the claimant is entitled to claim damages. Learned counsel submitted that in this case, the claimant’s promotion is tied to the achievement of a particular condition which is a term stated in the contract of employment; and when the claimant satisfied that condition, her promotion became a right that could be enforced against the defendant. He argued that it will be unconscionable and an unfair labour practice to allow an employer to renege from his obligation in that circumstance. It was his submission that where the court finds that an employer did not promote an employee by acting “within the pale of mala fide, unfairness, vindictiveness and victimization” the court will order the promotion of the affected employee to the next rank or level as the case may be citing Mariam V Unilorin Teaching Hospital Management Board (unreported) Suit No. NICN/LA/359/2012, Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454. Learned counsel argued that the claimant who has alleged that she was forced to resign has an uphill task to prove that the event asserted actually occurred because the request for resignation was made orally with no witnesses to corroborate the assertion. He argued further that despite this limitation, it is not the case that the court is in the circumstance totally helpless in unraveling the truth as the legal implication of this is that she is making a claim for constructive dismissal. He referred to the judgement delivered by my learned brother Honourable Justice B. Kanyip on the 26th of March 2014 in Ebere Ukoji v Standard Alliance Life Assurance Co. Ltd (Unreported) Suit No. NICN/LA/481/2012 and Western Excavating v. Sharp [1978J 1 All ER 713. He submitted that from the facts and circumstances of this instant case it can be seen that the claimant was constructively dismissed as the defendant was in breach of the terms of contract of employment when it refused to promote her. The request by the defendant that the claimant should resign with immediate effect or face dismissal was the last straw that compelled the claimant to resign. He urged the court to hold that the resignation of the claimant was not voluntary but was forced on her by the conduct of the defendant and that such conduct amounts to an unfair labour practice for which the claimant is entitled to damages. He submitted that the combined effect of Section 11(5) of the Labour Act 2004 and Section 7(6) of the National Industrial Court Act is not only to recognize constructive dismissal claims but also to accept best practices in other jurisdictions as standards for determining if indeed there has been a case of constructive dismissal. He urged the court to hold that the claimant has proved the case of constructive dismissal against the defendant. It was his contention that the success of reliefs 3, 4, & 5 is largely dependent on the court finding in favour of the claimant with regards to the declaration sought for in relief 1. He submitted that Section 19 (d) of the National Industrial Court Act 2006 empowers the Court to make an award of compensation or damages in any circumstance contemplated under the Act or any other Act of the National Assembly dealing with any matter that this court has jurisdiction to hear referring to Industrial Cartons Limited V NUPAPPW [2006] 6 NLLR (PT. 15) 258 and Onah V NLC [2013] 33 NLLR (Pt. 94) 104. On the counter claim, learned counsel submitted that the defendant has not proved that it is entitled to the reliefs being sought and that it be dismissed. Replying on points of law, learned counsel to the defendant submitted that the contract of service is the bedrock upon which an aggrieved employee must found his case if there is any dispute or claim with regard to termination or dismissal from employment as he succeeds or fails upon the terms thereof. He submitted that the case of Mariam v Unilorin Teaching Hospital Management Board (unreported Suit No. NICN/LAl359/2012) and Kurt Severinsen v EMTS Ltd [2012] 27 NLLR (Pt. 78) 374 cited by the claimant is irrelevant and inapplicable to this case. He submitted that the issue of constructive dismissal was never canvassed by the claimant in her pleadings as such the arguments and case of Western Excavation Limited v Sharp supra cited by the claimant’s counsel is inapplicable. He then urged the court to dismiss the claimant’s case and grant the counter claim. I have carefully considered the processes filed, the evidence led, written submissions and authorities cited. In my view the two issues for determination are whether on the pleadings and evidence canvassed in this suit, the claimant is entitled to the reliefs sought; and whether the defendant has proved its counter claim. The law is settled that in the determination of employment rights, the claimant must place before the court the contract of employment that provides for her rights and obligations and regulates the relationship between the her and the defendant. See Fakuade v. O.A.U.T.H. [1993] 5 NWLR (Pt. 291) 47, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. The evidential burden of proof of establishing the terms of the contract of service is on the claimant. See Section 131(1) and (2) of the Evidence Act 2011. The claimant has placed before the court her letter of appointment dated June 26, 2008. The defendant has also placed before the court the claimant’s letter of appointment together with her letter of confirmation and the Human Capital Management Policies Manual. The claimant has testified that she was given assurances that her appointment as Assistant Vice President was temporary and that she will be upgraded to Vice President upon confirmation after six months. To determine the correct position, I will reproduce below only the relevant portions of her letter of appointment exhibit C1 which I consider necessary for this judgement: Dear Ngozi, OFFER OF EMPLOYMENT Further to our various discussions with you and subsequent approval of the Management of Platinum-Habib Bank Plc, we are pleased to inform you that you have been offered employment on Assistant Vice President Level, in our Commercial Banking Directorate, Apapa Bank. This offer is with effect from July 1, 2008. Your career progression in the Bank will depend on your ability to meet specific targets, which will be achievable. Also, this appointment will be on probationary period of six (6) months, after which confirmation will be subject to the achievement of the Bank’s corporate goals assigned to you. TERMS OF EMPLOYMENT • CODE OF CONDUCT All employees are expected to comply with the organization’s code of conduct, rules and regulations as contained in the Human Capital Staff Policy Handbook and all such other circulars and policy statements that may be issued from time to time. • SEVERANCE Either party shall determine this contract by giving one (1) month notice or payment for the same period in lieu of notice. • ACCEPTANCE If the above terms of employment are acceptable to you, please sign the endorsement at the bottom of the enclosed copy of this letter and return to the undersigned. Yours faithfully For: PLATINUMHABIB BANK PLC PASCAL GEORGE ACTING GROUP HEAD, HUMAN CAPITAL MANAGEMENT The letter of appointment speaks for itself. The law is settled that parole evidence cannot be used to alter the written terms of an employment contract. Again it is the law that parties cannot read into a document what is not there or read out of it what is not there. See Section 128 (1) Evidence Act 2011, Intels Nig Ltd v William Bassey [2015] 5 ACELR 88 (CA), UBN Ltd v Prof Albert Ozigi [1999] 3 NWLR (Pt 333) 385. Furthermore, in construing the contract of employment, the court must confine itself to the plain words and ordinary meaning derivable from the provisions containing the rights and obligations of the parties contained therein. See Intels Nig Ltd v William Bassey supra, Sule v Nigerian Cotton Board [1985] 2 NWLR (Pt 5) 17. The claimant’s letter of employment did not give any assurance or promise of upgrading upon her confirmation. Under cross examination, she admitted that she understood the contents of her letter of employment and she did not give any conditions when she accepted the offer. I find that the claimant accepted the position of Assistant Vice President the defendant offered her voluntarily; and she was confirmed on that position with effect from February 10, 2009 with an increase in her annual basic salary. The claimant has complained that after exceeding the target set for her, the defendant refused to promote her which is a breach of the defendant’s contractual obligation to her as contained in her letter of appointment and also constitutes an unfair labour practice. I find that there is no contractual obligation in the letter of appointment to promote the claimant upon her meeting or exceeding any target set for her at the point of confirmation of her appointment and I so hold. In any event, the defendant has a procedure for promotion of employees contained in exhibit D4 the defendant’s manual at pages 13 - 15 (clauses 4.1-5.2) as follows: PROMOTION The Bank shall seek to first fill vacancies by promoting suitably qualified personnel from amongst the Bank’s employees. An employee’s progression shall be dependent on the following criteria: • Performance rating from last appraisal; • Tenure on present grade; • Availability of progression opportunities i.e vacancies These criteria shall be utilized as follows: • Staff who have spent 18 months or more on the same grade as at the time of consideration, and have been rated as “Exceptional” in the last two performance appraisals, shall be considered for promotion; • Staff who have spent 24 months or more on the same grade as at the time of consideration, and have been rated as “Very Good” in the last three performance appraisals, shall be considered for promotion. Under cross-examination, the claimant confirmed that this was the defendant’s procedure for promotion. She admitted that she worked for only eleven months and never saw any document where she was recommended for promotion. I find that the claimant did not meet the defendant’s set criteria for promotion. I therefore hold that she was not qualified for promotion to the position of Vice President and is therefore not entitled to the salaries and allowances reserved for that position. The claimant has alleged that the defendant forced her to resign her appointment immediately on the 31st July 2009 upon the threat of dismissal and that this is an unfair labour practice. Under cross examination she told the court that: “it was taken that I threatened my Executive Director because I asked for my right”. The law is that he who asserts must prove. See Section 131(1) and (2) of the Evidence Act 2011. The claimant’s evidence is that she chose to resign her appointment by electronic mail using her Blackberry phone and did not indicate in her letter that she was advised to resign. I will reproduce her mail below: RESIGNATION OF APPOINTMENT I hereby resign my appointment with Bank PHB. Thank you for giving me the opportunity to work in this institution. Regards, Ngozi Ezigbo There is no evidence before the court of the claimant being forced or threatened to resign her appointment with immediate effect. Indeed if there was a threat, as a very senior officer, she ought to have given an indication in the manner she wrote her letter and there would have been no need for the defendant to write in exhibit C5 that “the bank’s acceptance of your resignation is subject to complete settlement of your indebtedness to the bank and the return of all the bank’s property in your possession including the bank’s identity card and other means of identification.” I hold that the claimant has not proved that the defendant forced her to resign with the threat of instant dismissal if she failed to neither has she proved that she was constructively dismissed. This claim therefore fails. I find from the letter of resignation that the claimant breached the terms of her employment contract by not giving the defendant one month’s notice or paying one month’s salary in lieu of notice and I so hold. The claimant is to comply with her employment contract and pay the defendant one month’s salary in lieu of notice. The defendant has testified that the issue of unfair labour practice is unknown to Nigerian labour law and therefore inapplicable. This does not represent the correct position of the state of labour law in Nigeria today. Section 254C (1) (f) of the 1999 Constitution as amended gives this Court jurisdiction over matters relating to or connected with unfair labour practice. The jurisprudence of this court is replete with decisions on unfair labour practices by employers. In this instance however, I have not found any incident or evidence of unfair labour practice by the defendant against the claimant and I so hold. The claimant has admitted under cross-examination that she is still in possession of the defendant’s Prado jeep, 27 KVA Generator, is indebted to the defendant in the sum counter claimed and she has not paid back her loan or made any proposal for repayment. There is no burden incumbent upon a party to prove facts which have been admitted. See Section 123 Evidence Act, Tijani Jolasun v. Napoleon Bamgboye [2010] 18 NWLR (Pt. 1225) 285. The evidence before the court is that the claimant wrote the defendant on September 9 2009, exhibit C4 seeking a waiver of all payments for the Prado Jeep, Generator and her outstanding loans on compassionate grounds. The defendant replied her in exhibit C5 on October 21, 2009 granting “a reprieve on your indebtedness by writing off 50% of the value of your status car (N3,364,583.35), your total net indebtedness with the Bank as at October 21, 2009 is N6,454,510.39. Kindly refer to the attached breakdown for details”. In spite of this reprieve, I find that the claimant did not pay for the new Prado Jeep or return it to the defendant till date. She also did not return the 27 KVA Generator or pay the sum of N3,545,639.56 being the staff loan granted her on the ground that the defendant is not entitled to recover the car and its other assets in her possession until the issue of her entitlement is resolved. This is a court of law and equity. He who comes to equity must come with clean hands. The claimant has not approached this court with clean hands. I find that the claimant’s conduct in wrongly holding on to the defendant’s properties and depriving it of the use and possession of same since July 31, 2009 is tantamount to conversion of the defendant’s properties and I so hold. Furthermore, the claimant who is indebted to the defendant is not entitled to a severance pay and I so hold. For all the reasons given above, I hold that the claimant’s case is misconceived and frivolous. It fails in its entirety and is hereby dismissed. The defendant’s counter claim succeeds having been admitted by the claimant. Consequently, I hereby make the following orders: i. The claimant is to pay the sum of N3,545,639.56 being the staff loan granted to her in the course of her employment as a staff of the defendant. ii. The claimant is to pay the sum of N3,364,583.35 being 50% of the value of the new Prado Jeep status car given to her which she has held on to till date. iii. The claimant is to pay interest on the total sum of N6,454,510.39 representing her indebtedness to the defendant at the commercial banking interest rate of 18% beginning from 1st December 2009 until the date of this judgment. iv. Thereafter, interest on the entire judgment sum at the rate of 10% per annum until the debt is fully liquidated. v. The claimant is to pay the defendant one month’s salary in lieu of notice. vi. The claimant is to return the defendant’s 27 KVA Generator in a serviceable condition and the Bank’s identity card together with other means of identification within 14 days. vii. The claimant is to pay the sum of N50,000.00 only being the cost of this action. Judgement is entered accordingly. ____________________________ Hon Justice O.A.Obaseki-Osaghae