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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE O.O. OYEWUMI DATED 24th OF SEPTEMBER, 2014 SUIT NO: NICN/LA/37/2013 MR. GERALD ESOGWA - CLAIMANT AND ZENITH BANK PLC - DEFENDANT REPRESENTAION F.I Oguntuase for the claimant C.V.C Iheakwuazu with him A.C Eze, T.A Micah, and A.S Ikenga for the defendant JUDGMENT The claimant was employed as an Assistant Manager in its Oba Akran Branch Ikeja by the defendant on the 8th day of November, 2005 confirmed on the 2nd of February, 2007. The defendant pleased with his commitment promoted him to the position of Senior Assistant Manager and later to Deputy Manager. In 2008, management changed hands in Oba Akran Branch Ikeja. The new management displayed intense hostility towards him stripping him of valuable accounts/relationships such as Guinness Nigeria Plc, WEMPCO, Group which the claimant had nurtured over a long period and grown in its transaction with defendant. He was also regularly denied his annual leave. When it dawned on the claimant that he could no further risk denial of his entitlement, he resigned on the 14th of July, 2008. Defendant refused to acknowledge his resignation letter to enable him to be entitled to his entitlements and also know his due to the bank. The claimant averred that he secured another employment with Oceanic Bank on the 28th of May, 2008. Claimant also averred that in accordance with the banking policy, a reference letter ought to be issued by the previous employer to the new employer on behalf of the employee. The defendant refused to respond or issue same to his new employer in spite of persistent pressure from his new employers. Upon inquiry as to why his request was refused he was told that the defendant instructed by the branch head that his resignation letter should not be acknowledged hence a reference letter could not be issued to him. The defendant on the 17th of July, 2009 wrote to the claimant intimating him on why he would not be cleared by them. Defendant stated that claimant approved a loan to a customer and that customer had not liquidated the loan. Claimant averred that the loan approval was not done by him but by the Branch Head, Zonal Head, Credit Risk Department and the Executive Management that as a Deputy Manager, his responsibility was to recommend the customer for loan while power to approve same lies with the management who approves. Also that the formal procedure of acquisition and approval conditions to be fulfilled by the customer in respect of loan in the bank was duly followed before disbursement of loan and moreso, he had resigned from the employment of the defendant before the loan matured and customer never abandoned the loan as he continued to service the loan by making lodgement into the account. The claimant’s letter was acknowledged by the defendant on the 14th of August, 2009 wherein a six months repayment scheduled was attached. On the 16th of December, 2009 defendant wrote to the claimant stating that before his letter could be acknowledged and reference letter given thereof, he should pay the sum of N3,114,686.60 being balance of upfront payment, personal loan and Zenith share loan given to him. On receipt of the letter, claimant sent a proposed repayment schedule and other correspondences via email to the defendant without success even though he was not in any way indebted to the defendant but out of frustration so as to get his resignation letter acknowledged and reference letter issued. Claimant further averred that he would have met his obligation had he been advised by the defendant properly but the defendant maliciously kept it back from him and his obligation continued to increase with interest rate only known to the defendant. As a result of the inability to produce a reference letter after 18 months of employment by Oceanic Bank, his employment was terminated on the 18th of December, 2009 as well as many incentives he enjoyed from Oceanic Bank was denied him, and he was due for promotion to the position of Senior Manager which would have entitled him to an annual salary of N18,200,000.00 with either a Honda Accord or a Toyota Camry as his personal car and a club membership. The claimant stated that although he was no longer in the employment of the defendant, he took adequate steps to ensure that the loan obtained by Chiffy Investment Limited for which he was victimised was totally liquidated. That he has suffered emotionally, financially and loss of self esteem due to the malicious act of the defendant. It was for the above reasons that the claimant filed this complaint on the 29th January, 2013 against the defendant seeking the following: (a). An order mandating the defendant to give reference letter to the claimant for the purpose of subsequent employment that he may secure. (b). Special and General Damages in the sum of N50,000,000 Million PARTICULARS OF SPECIAL DAMAGES i. N 18,200,000.00 being annual salary as Senior Manager of Oceanic Bank. ii. N 7,000,000.00 for the Honda Accord or Toyota Camry he would have been given as Senior Manger in Oceanic Bank. iii. N 500,000 for club membership as Senior Manager. TOTAL N 25, 700,00 ALTERNATIVELY i. N 12,800,000.00 being his annual salary as Manger of Oceanic Bank. ii. N 3,500,000.00 for the Toyota Corolla he had to return to Oceanic Bank upon disengagement. iii. N 500,000 for club membership as Senior Manager TOTAL N16,800,000.00 The claimant at the trial of this case tendered in support of his case documents which were admitted and marked as Exhibits GE1- GE13 The defendant filed a counter claim in addition to its statement of defence where it averred that claimant was offered employment with the defendant as an Assistant Manager which employment was confirmed after a probationary period vide a letter dated 2nd of February, 2007. Claimant was placed on a yearly compensation of N4,757,600.00 subject to confirmation and upon confirmation he was entitled to give defendant one month notice in writing or payment of one month gross salary if he decides to terminate the contract. Defendant denies that at no time was claimant victimized by the defendant and his purported resignation was done to frustrate the defendant operation as he did not validly resign his employment with the defendant because the resignation letter dated 14th of July, 2008 did not follow the terms of the claimant’s employment and defendant did not refuse to give claimant reference letter but insisted that claimant repays his outstanding debts owed to the bank so it could discharge its obligations to its depositors and also the communication between a bank and its staff differs from bank to bank in which the defendant practice is to make an ex-staff get clarification from its Human Resources Department if the ex-staff has unresolved issues with the bank at the time of resignation. The defendant averred that it informed the claimant of his indebtedness/financial obligations to the defendant before and after he resigned his employment with the defendant also that the claimant’s employment was terminated with Oceanic Bank Plc not because he could not produce a reference letter but because of the restructuring of the Oceanic Bank. The defendant further averred as regard the counter- claim that the claimant is indebted to the defendant to the sum of N1,558,686.60 which the defendant intimated the claimant vide an e-mail dated 16th of December, 2009 for which claimant replied proposing a repayment schedule and also the sum of N3,114,686.80 as at the July,2009 plus interest for the shares/stock loan and credit card facilities availed to him by the bank and that the claimant was negligent in his dealings regarding the recommendation and approval of a N130,000,000.00 loan facility to a customer which was supervised by the claimant and which had remained unpaid. The Defendant/Counter claimant claims against the claimant as follows: (a). The sum of N3,114,686.60 being the total indebtedness owed to the defendant/counter-claimant by the claimant as at July 17, 2009 and which said indebtedness and sum has since remained unpaid. (b). Interest on the said sum of N3,114,686.60 (Three Million, One Hundred and Fourteen Thousand Six Hundred and Eighty Six Naira, Sixty Kobo) at the rate of 21% per annum form July 17, 2009 to April 12, 2010 and the rate of 21% per annum from April 13, 2010 until judgment or final liquidation of the judgment sum. (c). The sum of N14, 600,000.00 (Fourteen Million, Six Hundred Thousand Naira.) as general damages to the defendant/counter claimant against the claimant/defendant to counter claim. (d). The sum of N500,000.00 as the cost of the Action. The claimant on the 19th of September, 2014 filed a reply to the statement of defence and defence to counter claim where he asserts that he was employed by the defendant as Assistant Manager with the defendant and promoted twice to the position of Senior Manager, Deputy Manager and was due for promotion as Manager prior to his exit. That the defendant does not issue promotion letter but list of promoted staff is posted to the intra mail on a view only screen format. He averred that in the offer letter given to him by the defendant, it stated that the claimant can resign his appointment with the bank subject to giving one month notice or one month salary in lieu of notice after confirmation of employment which he complied with in his letter of resignation dated 14th of July, 2008. He was stripped off the blue chip company he was managing without being invited to the meeting where the decision was taken neither was any explanation given to him to that effect. He averred that the branch head deliberately victimised him, frustrated him, insulted him in the presence of other staff, refused to approve the claimant’s leave request despite being owed over 44 days leave and displayed hostility towards the claimant. Claimant asserted that defendant deliberately refused to issue claimant clearance and reference letter to frustrate and ensure that his new appointment with Oceanic Bank was terminated out of malice and wickedness displayed by the defendant agent Mr Henry Oroh. Defendant agent also instigated the Human Resources Department to ignore the claimant’s resignation letter and refuse the acknowledgment of his entitlement and obligation. Claimant also averred that he contacted the defendant on many occasion even by his email dated 16th December, 2009 to intimate him on his indebtedness so that he can settle the account, he even went ahead to propose repayment schedule on his own so that he can be released since he had no way of knowing his indebtedness to the defendant because the Financial Control Strategic Planning as well as Human Resources Department are responsible for the computation of staff liabilities and entitlement. That the standard of practice for the defendant bank is that they issue exit letter to the claimant indicating his indebtedness and obligation and not for the employee/claimant to contact the Human Resources Department to resolve outstanding issues. Claimant averred that on one occasion he went to meet with the branch head as regards his letter of release, the Branch head called the security and instructed him out of the bank. The Human Resource Manager confirmed to him that the Branch head had declined to release him and they could not send indebtedness advice until the Branch Head cleared the claimant. That notice of outstanding indebtedness was sent to him on the 17th of July, 2009 which was more than a year after his resignation hence a tactical ploy to frustrate him. Claimant asserted that the loan facility was an Executive Credit Committee level credit approved by the management at EXCO and not a temporary overdraft. That the said loan was signed by the General Manager, Ebenezer Onyeagwu and Executive Director, Elias Igbin-Akenzua. Claimant averred that despite that loan had not matured at the time he resigned but as part of his goodwill, he took it upon himself to see that the loan was paid as he recovered N50 million for the defendant from Chiffy Investment. He also averred that he had to make a proposal to pay the net indebtedness of N1,558,686.60 out of frustration because he had authorised the defendant the authority to sell same and executed a share sale agreement with the defendant to that effect. That the defendant acted as instrument to the termination of his employment by not issuing his reference letter to his new employer and thus made him jobless till date and entitled to damages against the defendant. The claimant in defence to the counter claim filed by the defendant averred that his resignation letter dated 14th of July, 2008 followed due process. He denies the averment of the defendant that he was under the employment of Oceanic Bank while under its employment that claimant Oceanic Bank merely gave him an offer letter during the twilight of his employment with the defendant/counterclaimant therefore misinterpreting the issue at hand by stating that he was still in its employment before resuming with Oceanic Bank Plc. That the defendant having knowledge of his new employment with Oceanic Bank deliberately withheld acknowledgement and acceptance letter of resignation from 14th of July, 2008 to 16th of December, 2009 in other to ensure that the claimant is sacked from his new employment and after his employment has been terminated sent a letter asking him to pay the sum of N3,114,686.60 being the purported outstanding for personal loan and Zenith share after18months he left the defendant/counter claimant employment thereby incurring a high rate of interest thereon. The claimant also averred that it was the normal practice for the defendant to extend loan to it employees depending on the level of the employee and that by his level, he was voluntarily obliged with a share loan of 40,000 units that defendant was entitled to dividend and other advantages on the loan until the value of shares had been liquidated and if not liquidated the defendant/counter claimant remains the owner of the share loan and the claimant is not indebted in any form to the counter-claimant with regards to the loan. The claimant further averred that the defendant would have made profit on the shares if the shares had been sold at the period of time that the claimant resigned his employment considering the value on amount per unit on the shares hence defendant would have been indebted to him on the balance of the stock. Claimant denies the averment of the defendant/counter-claimant that claimant was negligent as regards the recommendation and approval of N130,000,000.00 (One Million and Thirty Naira) loan and same is unpaid. He contends that notwithstanding the said loan has being liquidated and the customer continued its relationship with bank, the defendant is still refusing to acknowledge his resignation letter . the claimant avers that the counter is frivolous and should be dismissed with cost in his favour. At the close of evidence, the defendant on the 14th day of February, 2014, filed its written address wherein it framed three issues for the court’s determination. 1. Whether considering the totality of evidence before the Honourable Court on a balance of probabilities, the claimant has sufficiently proved that the defendant was responsible for disengagement from Oceanic Bank International Plc to entitle him to the relief sought. 2. Whether from the state of the pleadings of the parties, the position of the law and upon a preponderance of evidence, the claimant has succeeded in proving his claim before the court. 3. Whether the defendant/Counter-claimant has successfully proved its entitlement to the claim as contained in Counter-claim. On issue one counsel submitted that the pertinent question to be determined by the court is whether the disengagement of the claimant from Oceanic Bank International Plc was due to the fault of the defendant? Does the defendant have an obligation to give the claimant a reference letter in the circumstances of this case? counsel answered the above posed questions in the negative and no law supports that, that those are merely internal and discretionary matters which do not constitute a right enforceable in court. Continuing, counsel submitted that the claimant accepted the offer of employment from Oceanic Bank before his purported resignation on the 14th of July, 2008 because by virtue of the letter dated 28th of March, 2008, he got employed by Oceanic Bank the date by which he was still in the defendant’s employment. Counsel submitted that contract of employment is governed by the principles of offer and acceptance and at the point of acceptance, the contract comes into force and becomes binding on the parties. He cited UNIVERSITY OF BENIN VS ERINMWIONREN [2001] 17 NWLR (PRT 743) 548 where the Court of Appeal per Ibiyeye J.C.A stated thus: “Exhibit P does not by any stretch of imagination come within the realm of offer and acceptance in contract case and in particular contract of service amount to an offer by the appellant in the instant case. It is at best an invitation to treat made by the appellant to the respondent. Such invitation only metamorphoses into an offer at the instance of the respondent and acceptance when the appellant indicates its willingness to accept the offer. The end result is a contract which is susceptible to several ramifications.” Counsel urge court to hold that claimant was already a staff of Oceanic Bank before he resigned his employment with the defendant thus a breach of contract of employment which disqualifies him from any relief against the defendant and the defence of the claimant that he was given a letter of appointment by the defendant while he was in the employment of then Broad Bank does not help the claimant as it is not part of his testimony that he informed the defendant that he was still at Broad Bank. Counsel submitted that the defendant had no hand in the termination of the claimant’s employment with Oceanic Bank because by Exhibit GE4 the letter of employment, there is nowhere where it was mentioned that obtaining a reference was made a condition precedent to the employment of the claimant and it is the law that he who asserts must prove he cited Sections 131an 132 of the Evidence Act, 2011 the claimant having failed to discharge this burden cannot find favour with court. Counsel also submitted that Exhibit GE11 gave clearly the reasons why the claimant’s employment was terminated by Oceanic Bank because of “the decision of the Bank to restructure”. He submitted that it is trite that an employer is under no obligation to give reason for terminating the employee’s contract of service in so far as it is in accordance with the contract of employment. He cited the case of OKPEKE V NIGERIA SCURITY PRINTING & MINTING CO LTD [1999] 12 NWLR (PT 629) 160. Counsel submitted that in the instant case, employer satisfied the conditions of the terms of employment and thus same cannot be challenged by the employee even if claimant tries to controvert the reason given by the bank. It was submitted by counsel that it is a notorious fact that banks in 2009 experienced massive restructuring in which Oceanic Bank was affected hence the contention of claimant amounts to imputing into a document by oral evidence what is not contained therein. He cited SECTION 128 of the Evidence Act and the case of OGUNDELE & ANOR V AGIRI & ANOR [2009] 12 SC (PT.1) 135 AT 153. Continuing counsel submitted that the defendant does not have any obligation issuing the claimant with reference letter when he was still indebted to the bank. It is within the defendant’s discretion to issue same. The DW’s evidence on oath admitted that it is an established practice that an ex- staff must settle his outstanding debt with the bank before he was allowed exit letter and this practice is well known to the claimant that on the 16th of December, 2009 the defendant vide a letter sent to the claimant intimating him of his indebted to the bank but he did not settle same therefore the defendant cannot be expected to honour the claimant’s alleged request for reference. Counsel arguing the contention of the claimant that the defendant action by responding to his request until December, 2008 is actuated by malice submitted that the DW under cross examination stated that response to any request depends on the type of inquiry that an information requiring a further investigation or liaising with other department takes time and pertinent to note is that claimant’s entitlement with Oceanic Bank was not compiled until 7th January, 2010 when his appointment was terminated on the 18th of December, 2009. Counsel submitted that the privity of contract governs the relationship between the claimant and Oceanic Bank and it has nothing to do with the defendant. On issue two, counsel submitted that the claimant’s reliefs are founded on misguided allegation that the defendant is responsible for the termination of is employment with Oceanic Bank Plc. Continuing he submitted that the defendant does not owe the claimant any obligation to honour the request of the claimant for reference letter in view of his indebtedness to the defendant therefore he was not responsible for the loss of his employment and therefore counsel urge court to refuse reliefs on the issue. He submitted that claimant has the right to terminate his contract of employment but must be done in accordance with terms of his contract. By Exhibits GE1 provides for the conditions for termination of appointment by either party “After confirmation, you may resign your appointment with the bank subject to giving the bank one month notice or paying the bank one month salary in lieu of notice”. The claimant purported to resign his appointment on July, 14 2008 and it is in evidence that he had been offered employment by Oceanic Bank Plc, on May 28, 2008 and resumed work the same day he purportedly resigned with the defendant. That by the second paragraph of his resignation letter, claimant stated as follows “kindly apply part of my outstanding 40(forty) leave days in lieu of notice”. The claimant did not give the bank one month notice nor did he pay the bank one month salary in lieu of notice. Counsel submitted that the 40(forty) leave days in lieu of notice does not qualify as payment of one month salary in lieu of notice as required by the terms of employment. That the claimant has failed to prove that he validly resigned his appointment with the defendant. He cited SECTIONS 131 and 133 of the EVIDENCE ACT, 2011. Counsel submitted that claimant is not entitled to the reliefs of general and special damages sought for. He stated that general damages are the damages the law will presume to be the direct natural and probable consequence of the act complained of. They are awarded when the court cannot point out the measures to which they are to be assessed. He cited the case of OMONUWA V B.A. WAHABI (TRADING AS WAHABI & SONS) [1976] 3, 4& 5 SC 62 AT 71. Special damages, are exceptional in character. They are pecuniary losses which crystallized in terms of cash and value before the trial. He cited SALEH V B.O.N LTD [2006] 6 NWLR (PT. 976) 316 AT 333. Counsel submitted that the only evidence in proof of claimant’s relief to special damages is that he was due for promotion as a Senior Manager which would have entitled him to an annual salary of N18,200,000 with a Honda Accord or Toyota Camry as his personal car and a club membership. It is not in the claimant’s evidence that he was eventually promoted therefore this speculation merely exist in the mind of the claimant and thus cannot qualify as special damages which requires strict proof. He cited in support the case of AFRIBANK NIG LTD V M. ENT LTD [2008] 11 NWLR (PT 1098) 223 AT 241-242. In HAWAY V MEDICOWA NIG LTD [2000] FWLR (PT 22) 1020, the Court of Appeal held that in dealing with the measure of damages in terms of restitution integrum, anticipatory profit is not part of special damages. Continuing he submitted that at most that anticipatory profit amounts to a factor the court may consider in awarding general damages. He cited AG FEDERATION V A.I.C LTD [2000] 10 NWLR 293 AT 305-306. He submitted that claimant’s claim for special damages fail and urged the Honourable court to so hold. On issue three, that by it counter claim it has sought for the following reliefs (a). The sum of N3,114,686.60 being the total indebtedness owed to the defendant/counter-claimant by the claimant as at July 17, 2009 and which said indebtedness and sum has since remained unpaid. (b). Interest on the said sum of N3,114,686.60 (Three Million, One Hundred and Fourteen Thousand Six Hundred and Eighty Six Naira, Sixty Kobo) at the rate of 21% per annum form July 17, 2009 to April 12, 2010 and the rate of 21% per annum from April 13, 2010 until judgment or final liquidation of the judgment sum. (c). The sum of N14, 600,000.00 (Fourteen Million, Six Hundred Thousand Naira.) as general damages to the defendant/counter claimant against the claimant/defendant to counter claim. (d). The sum of N500,000.00 as the cost of the Action. Counsel submitted that DW gave evidence that the claimant on the 17th of July, 2009 is indebted to the defendant for shares/stocks loan and credit facilities availed to him by the defendant to the sum of N3,114,686.60 (Three Million, One Hundred and Fourteen Thousand Six Hundred and Eighty Six Naira, Sixty Kobo) plus interest and same was admitted by the claimant under cross examination that vide a letter dated the 16th of December, 2009 defendant intimated him of his entitlement and indebtedness and the balance was given to him to settle but he did not settle it. It is counsel’s contention that the claimant has not in any way controverted the evidence of the DW that he is indebted to the bank. His only defence is that the defendant ought to have given him the calculation earlier. Counsel urge court to hold in favour of defendant that it has proved its entitlement to the sum claimed. Counsel submitted that defendant / counterclaimant claim for general damages flows from the negligence of the claimant in handling the loan facility granted to Chiffy Investment Limited. Counsel submitted that by the undisputed facts in the defendant’s evidence-in-chief and Written Statement on Oath, a. The claimant acted negligently in his dealings regarding the recommendation, approved and disbursement of the N130 Million in that: i. His assessment and recommendation was negligent. ii. He failed to take required care and diligence in the disbursement of the facility. iii. He failed to obtain necessary approval before disbursing the loan to the said customer. b. The negligent act of the claimant has caused huge damages and losses to the defendant/ Counter claimant. He submitted that defendant having discharged its burden under Sections 131, 132 and133 of the Evidence Act, 2011 by preponderance of evidence and on evaluation of evidence, defendant is entitled to its counter-claim. He urge court to so hold in its favour and the successful party be awarded his reasonable legal cost. The claimant on the 6th day of May, 2014 filed its written address wherein he framed three issues for the Court’s determination. 1. Whether the termination of claimant’s employment by Oceanic Bank, his new employer was not attributable to the defendant’s failure and/or refusal to issue a reference letter on the claimant as demanded by the former vide Exhibit SM5. 2. Whether the defendant’s refusal to issue the said reference letter, which to its knowledge and by its admission, is a very important document in the banking industry, without which an employee cannot keep his employment, was not actuated by malice and unwarranted vindictiveness. 3. Whether the claimant had not suffered serious injury and incalculable loss by reason of the defendant’s breach of duty owed to him in the circumstances of this case and if so whether he is not entitled to damages. On issue one counsel submitted that the effective and operative cause of the claimant’s loss of his job was the defendant’s refusal to provide the information requested for by the Oceanic Bank, the claimant’s new employer. Counsel submitted that claimant in paragraph 14 of his written statement on oath made it clear that the standard practice in the banking industry is that reference must be obtained by a bank, before a staff is engaged, which reference must include or be that of his former employer. Where there is no such reference at the point of entry, the rule is that such an employee, if employed at all, would only be marking time, unless he regularizes his position within a specified time. The best the candidate could have is time within which to ensure the availability of such a reference letter. The claimant was given about six to twelve months, long enough, for him to ensure the availability of a reference letter. He was specifically placed on probation pending when the reference would be out. The defendant, who by the admission of its witness under cross examination, was familiar with the rule and whose duty it was to write the reference letter, deliberately ignored to do so, even well after a year the demand was made by the claimant’s new employer. Counsel assuming without conceding that there was no such directive or rule within the banking industry, as the defendant would have the court believe, submitted that the defendant was aware that such reference letter was the anchor to which the claimant’s retention of his job with oceanic Bank was tied. This is cognizable from Exhibit SM5, Oceanic Bank’s letter to the defendant dated September 16, 2008, addressed to the Head, Human Resources of the defendant, headed “job Reference: MR, GERALD IFEANYI ESOGWA”, the importance of the reference letter was clearly spelt out by Oceanic Bank in para 2 of the letter wherein it reiterated thus: “To enable us confirm his appointment, we would appreciate it if you could complete the attached form and return same under confidential cover to either of the undersigned”. In other words, the reference letter was a condition precedent for his keeping his job. They said so clearly that what would “enable” them to confirm his appointment was the completion of “the attached form” and the “return of same under confidential cover to either of the undersigned”. Therefore to argue that the reference letter was a condition precedent for the confirmation of the claimant’s employment is to hide behind a finger. That will certainly be non sequitur. DW1 admitted under cross examination that banks, including his bank, attach importance to reference for an employee coming from another bank. He further confirmed, after reading Exhibit SM5, that in the circumstances of this case, Oceanic Bank made it a condition. The contention of the claimant therefore, in his statement on oath, to the effect that the principal reason for the loss of his job was defendant’s failure to release the reference form was unassailable and same was also corroborated by the defendant’s witness. Counsel submitted that the defendant at the point of employing the claimant also made such reference a condition in claimant’s letter of employment dated November 8, 2005, given to him by the defendant, at the time he sought to join the defendant, clearly made the reference letter a condition. Exhibit GE4 stated thus; “You will be on probation for a period of six months after which your employment could be regularized upon satisfactory performance of your duties and receipt of clean references from your referees and present employer”. Continuing, counsel submitted that for the defendant, in the face of all these, to still contend that the reference letter is not important, as it were, in the banking industry, is tantamount to playing the ostrich. It is like blowing hot and cold at the same time, literally meaning that the defendant is approbating and reprobating and this not allowed by the court of law. Hence this should sink the credibility of the defendant. Counsel submitted that the law recognizes what is called “custom of the trade” and events and situations would be liked at in the context of the custom of the trade. That from what has been seen above i.e the claimant’s letters of employment issued by the defendant and the one subsequently issued by Oceanic Bank, reference letter from previous employer is a custom of the trade in the banking industry. Counsel explaining the import of cited the case of HUTTON V. WARREN [1836] 1 M7W 466 AT 475 where Park B held: “It has long been settled that, in commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters oath respect to which they are silent. The same rule has been applied to contracts in other transactions of life, in which known usage have been established and prevailed; and this has been done upon the principle or presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound but to contract with reference to those known usages”. The process of the development and the establishment of a custom are clearly stated by FURMSTON IN CHESHIRE AND FIFOOT 10TH ED AT 117 as follows: “A particular practice is shown to exist and the parties to the contract are proved to have relied on it. In course of time it is assumed by the courts to be so prevalent in a trade or locality as to form the foundation of all contracts made within the trade or locality, unless expressly (and we many add implicitly) excluded”. That business practice in a particular industry is relevant in the resolution of dispute received vent also in the case of AGBONMAGBE BANK LTD V. C.F.A.O. LTD [1966], 1 AII NLR 40. In that case, Bairamian JSC delivering the judgment of the court held: “There is a business practice among banks in regard to cheques and we think that the defendant bank ought to have followed it…” This answers the defendant’s contention in paragraph 4.01 that “unfortunately the claimant did not provide any document to support this position” in apparent reference to the claimant’s assertion “that it is a banking industry policy that reference letter be supplied by a previous employer to the new employer on behalf of an employee”. Counsel submitted that no document is needed to prove the custom of a trade or business practice because Custom evolves from practice, which “in course of time, it is assumed by courts to be so prevalent in a trade or locality.” He referred again to Furmston exposition in Cheshire and Fifoot supra. Therefore the implication of this is that there is a business practice among banks, which every bank ought to follow and had the defendant followed or respected this business practice among banks, it would have deemed it fit to issue the reference requested and the claimant would not have lost his job. The defendant’s contention therefore that claimant’s loss of his job was as a result of the restructuring which the banking industry suffered at that time, is far too speculative, conjectural and clearly at variance with the empirical evidence before the court. Counsel agreeing that there was restructuring at some point in the banking industry, submitted that this did not affect every worker in the industry. Quite a good number retained their job including DW1 who claimed to be in the industry in the period when restructuring took place. Thus form claimant’s deposition, DW1’s evidence under cross examination and exhibit SM5 it is clear that a bank’s employee who has no reference letter from his former employee would be rationalized out of the system, and the claimant did not have one in this case, the only logical inference to be drawn is that the operative and effective cause of his loss of job was the lack of reference letter. In OBETEN V. STATE [2007] ALL FWLR (PT 376) 711 AT 726 PARAS D-E, the court held: “Facts per se do not necessarily always settle a point of dispute. In some cases, as in the instant case, it is the inference drawn from the facts in evidence that determines the issue in dispute one way or the other”. Counsel also contended that the employment cannot be confirmed because of failure to meet the condition precedent, his employment would certainly be terminated because probation cannot last till eternity. And based on the internal memo tendered and admitted as Exhibit GE 10 it is obvious that he acquitted himself creditably in the performance of his duty as a staff of the Bank. That eliminates the possibility of impropriety or non performance as the reason behind his disengagement. Hence, it is safe to say that his sack was not attributable to non performance but to the reasons of non issuance of reference letter. Any other reason would by far be to speculative and indefensible. Courts are not allowed to speculate. He cited the case of COUNCIL FUT, AKURE V. AJIDAHUN [2013] ALL FWLR (PT 700) 1369 AT 1382 PARA F. In IYERE V. BENDEL FEED AND FLOUR MILL LTD, [2009] ALL FWLR (PT 453) 1217 AT 1247, the Supreme Court held: “where evidence given by a party is unchallenged or uncontroverted, a court of law must accept it and act on it unless it is palpably incredible." The court concluded: "in the instant case, the evidence preferred by the plaintiff was not challenged or controverted, therefore the trial court erred by not relying on it”. Counsel submitted that as stated in Exhibit GE 4 which represents his letter of employment by Oceanic Bank that the claimant's probationary period was just for six to twelve months, In other words, he had just six to twelve months to fulfil the condition stated for his confirmation failing which he would not be confirmed and not be allowed to remain on the staff list. His contract of employment was, to that extent, conditional contract, which would not become operational and binding on Oceanic Bank until the conditions stipulated therein were fulfilled. He cited in support the case of SUBERU V. A.I.S. & L LTD [2007] ALL FWLR (PT 380) 1512 AT 1525 PARA D. The court held: “A conditional contract, would not become operational and binding until the conditions stipulated therein are fulfilled”. Hence defendant’s failure to issue the reference required made it impossible for the claimant to fulfil the conditions stipulated in the contract and exposed him to the injury he suffered which was as a result of breach of duty of care, an incidence of principle of negligence. It is of no moment that there was no subsisting contract between the claimant and the defendant for this consequence to attach. He cited in support the case of ANYAH V. IMO CONCORDE HOTEL LTD [2003] FWLR (PT 138) 1306 AT 1330 PARAS D – F, the Supreme Court per Kalgo JSC held: “Negligence is a species of tort, and one man may owe a duty to another even though there is no contract between them. But a breach of contract may give rise to a proper action in negligence”. (Also reported in [2002] 18 MWLR (Pt 799) 377). Applying the above principle to the instant case, it is submitted that the defendant owes claimant a duty of care and who it should have considered would be directly affected by its acts or omission. Counsel submitted that it was reasonably foreseeable for the defendant that its omission to send the reference to Oceanic Bank would be likely to injure the claimant herein, as it ultimately did having precipitated his sack. Applying this test, it was submitted that in the context of business practice in the banking industry, there was sufficient relationship of proximity or neighbourhood between the defendant herein (the wrong doer) and the claimant; that the relationship of proximity inheres in their having worked together as employer and employee putting the defendant in a position whereby it could volunteer information on the claimant about his work ethics and character, which subsequent employers would 'heed and which to the knowledge of the defendant, any carelessness on its part would invariably occasion damage to the claimant. He cited the case of AGBONMAGBE BANK LTD V. C.F.A.O supra, Bairamian JSC delivering the judgment of the court agreed inter alia that Hedley Byrne & Co Ltd v. Heller & Partners Ltd showed that bankers may be liable to persons who are not their customers for the tort of negligence which causes them pecuniary damage and added that bankers normally owe a duty of care to a person whose bank is making such an enquiry on their behalf. Although what was determined in Hedley Byrne case was negligent misstatement, this was amplified in Agbonmagbe's case to include a situation where there was no positive misstatement by the defendant bank made in return for any inquiry by the plaintiff's bankers. In that case, just as in this case, the defendant bank ignored to respond to the inquiry made by the plaintiff bank, in consequence of which the plaintiff suffered loss of money. The Supreme Court found for the plaintiff on the principle of negligence. The court held: “There is a business practice among banks in regard to cheques and we think that the defendant bank ought to have followed It, to avoid it being thought by the CFAO ... that Mrs. Amushan's cheques were being paid. On the limited evidence in the case we do not think the learned judge erred in deciding that the bank had a duty of care towards CFAO and was liable for damages caused by its negligence”. Counsel submitted that defendant in paragraph 12 of its Statement of Defence and Counterclaim dated 22nd March 2013, denying the claimant's averments in paragraphs 15 - 17 of the Statement of Claim, spoke from both sides of the mouth. In one breath, it alleged that it "did not refuse or neglect to give the claimant any reference letter but only insisted that the claimant clears and repays his outstanding debt owed to the defendant Bank…. Counsel arguing that defendant did not issue claimant reference letter submitted that what the defendant should have done was to admit expressly that it did not give a reference letter and then go ahead to explain that it was due to the claimant's indebtedness to it. The defendant merely gave reason as to its failure to do the needful. Counsel urge court to examine the reason given to determine whether there is justification for it or not. On issue two, counsel submitted that the defendant’s refusal to issue the reference letter was actuated by malice and orchestrated to dim the claimant's career. The reasons for the defendant's refusal to give the reference letter are copiously stated in paragraph 12 of its Statement of Defence and Counterclaim, the purport of which is that he was indebted to it and refused to settle the debt in spite of its insistence. Counsel submitted that this was an afterthought and the reason for which the defendant ignored to oblige the reference letter is as stated in its letter to the claimant dated 17th July 2009, a year after the claimant's resignation. The defendant in the said letter made it clear that the claimant approved a loan to a customer that the customer had yet to liquidate the loan and that for that reason the claimant could not be cleared. Counsel assuming without conceding that this was even so, why did the defendant not volunteer this information at the earliest possible time so that the claimant would know what the obstacle was and how to address it? Counsel submitted that this is a spurious allegation, in view of CW's deposition in paragraphs 9 and 10 of his written statement on oath to the effect that decision making at the branch level is the responsibility of the branch management team. And this is in tandem with the position of the claimant in paragraph 5 of the Reply to the Statement of Defence and Defence to Counterclaim. The witness (DW) said in the said depositions: “That the management of the defendant's branch offices is entirely within the administrative powers of the Branch Management Team and that decisions are usually taken at the management Meeting of the Branch which is normally attended by all members of Management Staff of the branch …..”. Under Cross examination, he admitted that the process of loan approval involved a hierarchy of defendant's staff, formed into a Global Credit Committee, headed by a Director and comprising of other senior staff of the bank including the manager of the branch, where the customer is seeking the loan. He admitted that the Claimant merely recommended for approval but that the recommendation is screened by the Global Credit Committee, of which the claimant was not a member and had no right to participate in its deliberation. When asked whether the customer, Chiffy Investment Ltd met the condition for grant of loan, he admitted that it did. He also admitted that approval of loan was done by the Credit committee while disbursement was done by the branch manager in contradistinction of his deposition in paragraph 37 of its witness' statement on oath "That the claimant was negligent in his dealings regarding the recommendation, approval and/or disbursement of a N130,000,000.00 loan facility to a customer”. Counsel posing a question that how then can a person who recommended the approval of a loan to his superiors, who are more knowledgeable and exposed, be held responsible for the default of the customer particularly when the customer met the basic requirement and the process of approval passed through all the normal channels of the bank? Is the requirement of the bank that approval must precede disbursement of loan just for the fun of it or a perfunctory requirement? No. it was for a purpose, the purpose of checks and balances, to make the processing of loan sufficiently fool – proof submitted that one person down the ladder cannot bear the consequences of the misjudgment on the part of all. It is submitted that if anyone was guilty of negligence, it certainly cannot be the person who recommended; it should be the person who approved when all the necessary precautions had not been put in place. The necessity for an approving authority is the realization that the recommending officer or authority may make mistake or fail to do what he is supposed to do or do what he is not supposed to do. If the defendant's management believed absolutely in the judgment or infallibility of the recommending officer, he would not take the process of a loan approval beyond the branch, it would leave it entirely to the branch or the relationship manager which in DW’s words, has “direct relationship with the customer” and know “how viable the business of that customer” is. Counsel submitted that there was no basis for the defendant's allegation of negligence leveled against the claimant. Not only was the said Chiffy Investment servicing the loan, he also had an understanding with the defendant on how to liquidate the loan. Defendant did not join issue with the claimant on this and so deemed admitted. This is because "Facts admitted require no further proof' he cited the case of ODUNSI V. BAMGBOLA [1995] 1 NWLR (PT 374) 641. IYERE V. BENDEL FEED SUPRA AT 1232 PARA E. Learned counsel argued that if the defendant’s refusal to issue the reference had to do with his indebtedness to the bank, why did the defendant wait till December 2009 to advise him on this? Why did the defendant, to whom a letter of resignation was written on 14th July 2008, wait for so long a time to respond? Its first letter to the claimant after his letter of resignation was written on 17th July 2009, over a year after the letter of resignation got to the defendant's hand. Interestingly, it did not even talk about any indebtedness; it talked about a different issue altogether, the issue of a loan advanced to a customer. Could it be that his indebtedness had not been computed even as at that time or it was a non issue? Counsel submitted that the DW under cross examination could not explain the logic for such a delay. To him, six months without a reply to a letter was unimaginable in his bank or indeed anywhere. When told that the claimant requested for an advice in respect of his indebtedness in September 2008 and that response did not come until December 2009, he denied that vehemently until he was shown Exhibit GE3. He still could not believe his eyes as he labored vigorously to extricate his employer from such an unimaginable dereliction of responsibility. He retorted that before Exh. GE3 there were two other letters. He settled for the letter dated July 17, 2009 which was well over a year after the claimant's letter of inquiry was written. Then, DW became dumb founded. He also submitted that had the issue of claimant's indebtedness been important to the defendant, it certainly would not have delayed for so long; it would have responded hastily and promptly. And whatever the nature of the inquiry, DW made it clear under cross examination that it should never be up to six months. DW under cross examination made it clear that “for a walk in customer to make enquiry on his account, that information is readily available immediately.". Why should it be different in the case of the claimant, his erstwhile staff, who must have a data file or personal file with the defendant where his record and other matters are kept? What is on record ironically is that the claimant made sustained efforts to get the defendant to brief him about the amount of his indebtedness but the defendant consistently refused to do so. He talked about the several efforts he made to get a computation of his debt but the defendant was not forthcoming. According to him in paragraph 18 of his Statement of claim and the accompanying statement on oath "the standard practice in the banking industry is that upon the tendering of his resignation letter, the defendant ought to issue an exit letter to him indicating his indebtedness and obligations to the defendant and not for the claimant to ¬contact the Human Resources Department to resolve issues. In paragraph 12 of his Reply and accompanying deposition, he reiterated the relentless reports he made to get what ordinarily should be his right and how the defendant made a practice of frustrating him. As a matter of fact, he was humiliated and dehumanized on one occasion as he was bundled out of the defendant's premises by its security detail. He submitted that a debt is repayable only on demand or on notice given. This was the view of the court in the case of NDIC V. ORANU [2001] FWLR (PT 82) 1974 AT 1990 PARA B. The court held: "Generally, a debt is repayable either on demand, or on notice given or upon any other condition agreed upon by the parties". The defendant is aware of this rule because it is the practice in the banking industry. That was what Oceanic Bank did, by its letter of 7th January, 2010 to the claimant where his indebtedness was clearly stated in the exit letter given to him. Defendant cannot continue to operate outside the practice in the industry it belonged to. Counsel submitted that learned counsel for the defendant contended that the claimant was aware of how much he owed the defendant but did not lead any evidence to establish how the claimant knew or ought to know or how he came about this assumption. He did not show the court how the defendant arrived at the conclusion that the claimant was aware of the extent of his indebtedness. Yet, it is a material fact upon which issues are veritably joined, calling for proof of assertions as court cannot speculate ... OCEANIC BANK INT'L LTD V. UDUMEBRAYE [2008] ALL FWLR (PT 430) 769 AT 784 PARAS C-E. Counsel submitted that claimant contended that he did not know how much he owed the defendant. He said if he knew how much he owed, he was in a position to pay by virtue of his new designation in his new place of employment. This sounds credible and accord with common sense. On the other hand, why would the claimant choose to suffer so much embarrassment because he wanted to pretend that he did not know how much he owed? counsel urge the court to hold that the claimant did not know he owed the defendant and that the defendant had a duty to disclose this to him. It was a duty of care it owed him, the breach of which made him to lose his job and the discharge of which would have caused the defendant nothing. This omission is comparable to the one in Agbonmagbe’s case for which damages were awarded to the plaintiff. Counsel also submitted that how can the defendant contend that the claimant was owing it when it possesses the claimant's share certificate in its hand particularly his letters of "Authority to release original copy of Zenith Bank Plc share certificate" dated 16th January 2008 and the undated letter of "Authority to Sell" signed to it by the claimant already in evidence before this court? Has the defendant availed itself of the benefits of that collateral before claiming further indebtedness? Counsel refers the court to paragraphs 40, 41 and 42 of the Claimant's Reply to statement of defence and defence to counterclaim and the accompanying deposition for answers to these questions and submitted that the defendant's refusal to issue the said reference letter, which to its knowledge and by its admission was actuated by malice and unwarranted vindictiveness. We urge the court to so hold. On issue three, counsel submitted that the Claimant has suffered serious and incalculable damages based on the Defendant's breach of duty of care by failing to promptly issue the Claimant with a letter of reference which has now led to his loss of employment with Oceanic Bank. The Defendant has an obligation to ensure that it issues the Claimant a reference letter immediately after resignation or on the alternative, speedily advise the Claimant as to the nature of his indebtedness upon which the issuance of the said reference can be based. However, while Defendant's witness during cross examination and through Exhibit SM 5 incontrovertibly acknowledged the onerous duty of care imposed on it to hurriedly issue the Claimant's letter of reference or promptly furnish reasons same could not be issued within time (where need be), Exhibit GE 9 apparently reveals the breach of such duty of care as the Defendant groundlessly supplied to the Claimant notice of indebtedness a year and six months at which point Claimant's contract of employment with Oceanic Bank was at the brink of termination. That the claimant has suffered emotionally, psychologically, financially and lost his self esteem due to the malicious acts of the defendant”. Counsel urged court to hold that Defendant by his action has caused the claimant severe damage. The claimant has shown that the loss of his job is a direct consequence of defendant's breach of the duty owed to him. Counsel submitted that claimant by his averment has shown that he is entitled to special damages as contained in his statement of complaint. He cited the case of ADENUGBA V OKELOLA, [2008] ALL FWLR (PRT 398) PG 292 @ PG 296. In a claim for special damages, the onus is on the plaintiff to plead and prove the special damages strictly. And in order to discharge this Burden, the plaintiff must show by credible evidence that he is indeed entitled to the award of special damages. This evidence must show the same particularity as is necessary to his pleadings. Also cited is the case of UMAN V OWOEYE [2003] FWLR PRT 152 PG 38 @ PG 42. Counsel submitted that claimant has particularized the special damages he is entitled to and the alternative reliefs to same by setting them out specifically in his statement of complaint. Paragraph 13 of the Claimant's statement of complaint particularly states he was employed by Oceanic Bank on full manager cadre to which he was entitled to an annual income of N12, 800, 000. This averment the Defendant transverse by merely putting the Claimant to the strictest proof. He cited the case of ADENUGBA V OKELOLA (supra), where the appellate court accepted Plaintiff's evidence that he earned Five Thousand Naira (N5,000) a day and an income of N2,000 and consequently awarded special damages on that basis against the Defendant. What this means is that a party will be entitled to his full income and benefits once he is able to prove same as a direct consequence of the defendant’s act or omission. The court observed further that the law does not require an extraordinary measure of evidence to establish entitlement to special damages. To that end it held that a receipt is not necessary in proving special damages. Also counsel submitted that the claimant’s claim of N12, 800, 000 was half heartedly denied by the defendant. He cited the case of KOTUN V OLASEWERE [2009] ALL FWLR PRT 477 PG 41 @ PG 62, the Supreme Court clearly expressed that, "To raise an issue of fact, there must be proper traverse in the pleadings. That is to say, traverse must be made by a denial or non admission. In the instant case, the following are bad: i. Defendant is not in a position to admit or deny the (particular of allegation) in the statement of claim. ii. Defendant shall put the plaintiff to the strictest proof. Defendant puts the plaintiff to the strictest proof amounts to insufficient denial”. Continuing counsel submitted that the fact of the above case is lucidly in pari materia with the case at hand in the sense that the Claimant in this case has particularly set out in paragraph 13 of his pleading his annu al income and attached real evidence to buttress same, which regrettably has not been sufficiently traversed or negated by the defendant in their averments. And just as it happened in ADENUGBA V OKELOLA (Supra), where the court found for the claimant on the ground that the defendant did not join issue with the claimant on his claim, their rationale being that where the plaintiff in his pleading has specifically set out special damages and same remained unchallenged and uncontradicted. Counsel urge court to find so for the claimant herein in the absence of specific traverse by the defendant herein. Counsel submitted that this is more so when it is realized that claimant's obligation under the law to mitigate the loss suffered by him as a consequence of the defendant's act has also been foreclosed by the refusal of the defendant to issue the requisite reference, which makes it difficult for him to get another job wherever or to mitigate the loss. The Claimant is therefore entitled to the special damages as claimed. Counsel urged the Court to so found for the Claimant as per his statement of complaint and discountenance with the defendant's submission. The defendant on the 23rd day of May, 2014 filed a reply on points of law wherein it submitted in response to the claimant Written Address that in a contract of employment which is of the ordinary nature other than one with statutory flavor, an employer has the right to terminate the employment of his employee for good reason or for bad reason or no reason at all. Counsel cited the Supreme Court in the case of OKOEBOR VS POLICE COUNCIL [2003] 5 S.C 11 at 34 paragraph 1-10, held, inter alia, that: “It is an established principle of law that an employer is entitled to retire or terminate his employee's appointment for good, bad or no reason at all, and the Court will not foist an employee on an unwilling employer or make an order of specific performance of an ordinary contract of service except there are special circumstances. Special circumstances have been held to arise where the contract of service has a legal or statutory flavor" CHUKWUMAH VS SHELL PETROLEUM CO [1993] 4 NWLR (PART 289) PAGE 512; MOBIL OIL (NIG) LTD & ANOR VS S.T. ASSAN [2003] 6 NWLR (PART 816) 306 AT 318. Counsel submitted that the argument by learned counsel as to the reason for the termination of employment of the Claimant in Oceanic Bank is irrelevant and goes to no issue. The exercise of right of termination by Oceanic Bank was proper and the effect on the Claimant howsoever cannot attract any liability on the Defendant who was neither a party nor a beneficiary of the said contract which was between the Claimant and Oceanic Bank. It is the Law as recognized under the principle of privity of contract that only parties to a contract are to be bound by it. Non-parties to a contract cannot even sue or be sued on it. Counsel cited the case of ACB PLC VS NWODIKA [1996] 4 NWLR (PART 443) 470 AT 483. Counsel continued that Oceanic Bank Plc effectively terminated its contract with the Claimant and did not owe any obligation to state any reason even though it stated that it was for its restructuring. The allusion and sentiments raised by the Claimant on what customary practice or effect thereof meant as applicable to transactions under discretionary grounds are with due respect inapplicable under the circumstance. The argument as advanced by learned Counsel for the Claimant has no place in a contract of employment which is strictly regulated by its clear terms agreed to by the parties made by the parties he cited the case of AKINWUNMI O. ALADE VS ALIC (NIGERIA) LIMITED & ANOR [2010] 19 NWLR (PART 1226) 111 Counsel submitted that a clear perusal of the submission of counsel on his Issues One, Two and Three clearly disclose statements of fact outside the evidence of the claimant carefully presented by learned Counsel to add to the oral testimony before the Court. These statements to the extent that they are made by counsel go to no issue in law. He submitted that it is trite law that counsel's submissions no matter how eloquent or alluring cannot be substitute for evidence nor can it be elevated to the status of evidence and to hold otherwise would expose the decision based on such submission to the error of perversity as counsel's address cannot take the place of evidence. He cited the case of KAUGAMA VS NEC [1993] 3 NWLR (PART 284) PAGE 681 AT 706 AND OLAGUNJU VS ADESOYE [2009] 9 NWLR (PART 1146) PAGE 225 AT PAGE 255. Counsel contended that the submission of learned counsel for the claimant that the Defendant owed the Claimant a duty of care is rather strange and curious and completely unfounded. The submissions are speculative and cannot be sustainable under the circumstance of this case because pleadings are not founded on any duty of care and or breach thereof and the submissions purporting to constitute evidence from learned Counsel for the Claimant go to no issue in law. He cited KAUGAMA VS NEC (SUPRA) AND OLAGUNJU VS ADESOYE (SUPRA) and further submitted that the authorities cited in support of the issue are in contradistinction and cannot apply in the context of this case. It is trite that upon termination of any contract of employment by any party, every party is extinguished of all obligations under the contract. Please See: AKINWUNMI O. ALADE VS ALIC (NIGERIA) LIMITED &. ANOR [SUPRA], counsel submitted that the proof for special damages is strict and must be founded on evidence and not necessarily on the pleadings alone. The Claimant's claim for special damages of in its claim were neither here nor there and was not in anyway backed by concrete evidence. It was a case of placing something on nothing. The proof for special damages must be by credible evidence. It is not enough to merely state it in its claim. It has been held that: “Where a party claims special damages, the burden is on him to prove the special damages to the last kobo. He has to do this by leading credible evidence, most of the time by documents … strict proof is mandatory in proof of special damages. That is why the determination of claim for special damages on a party’s pleadings alone may not be prudent. It must be backed by concrete evidence in court”. He cited the case of A.T.E CO. LTD VS MILITARY GOVERNMENT, OGUN STATE [2009] NWLR (PART 1163) PAGE 6 AT PAGE 52 and A.G. LEVENTIS LTD VS AKPU [2002] 1 NWLR (PART 747) 182. It is submitted that special damages must be specifically pleaded and strictly proved by credible evidence. AMADI VS CHINDA [2009] 10 NWLR (PART 1148) PAGE 107 AT 122; DUMEZ NIGERIA LTD VS OGBOLI [1972] 3 SC. 196. Where this is lacking the claim cannot be sustained. The claim for special damages by the Claimant is unfounded in law and ought to be dismissed. In conclusion counsel submitted that the Court is urged to dismiss the claimant's claim and to grant the defendant's Counter-claim. I have given insightful consideration to all the processes filed before the Court, have equally heard and watched the demeanour of the witnesses and both written addresses filed by the parties. It is in the calm view of the Court that the issues distilled by both parties would sufficiently determine the justice of the case, I thus adopt the issues framed by the defendant thus- 1. Whether considering the totality of evidence before the Honourable Court on a balance of probabilities, the claimant has sufficiently proved that the defendant was responsible for disengagement from Oceanic Bank International Plc to entitle him to the relief sought. 2. Whether from the state of the pleadings of the parties, the position of the law and upon a preponderance of evidence, the claimant has succeeded in proving his claim before the court. 3. Whether the defendant/Counter-claimant has successfully proved its entitlement to the claim as contained in Counter-claim. It is the contention of the claimant on issue one that the cause of his loss of job from Oceanic bank was the refusal of the defendant to write a reference requested by that bank. He asserted that the standard practice in the banking industry attributable to CBN directive, is that reference must be obtained by a bank before a staff is engaged, which must include that of his former employer. Reference was made to exhibit SM5, which is dated 16th of September, 2008, wherein, Oceanic Bank requested the defendant to fill a form as it relates to the claimant. He reiterated that confirmation of his appointment with oceanic bank was tied to that reference form. The defendant responded by submitting that the main grouse of the claimant is the refusal of the defendant to write a reference to oceanic bank in respect of the claimant. It however, posited that the claimant failed or refused or neglected to produce any document in prove of his assertion that it is a CBN policy, the Court was referred to Sections 132 and 133 of the Evidence Act 2011. The defendant urged the Court to presume that failure of the claimant to produce the said evidence, would if produced be unfavourable to him. Section 167 of the Evidence Act. The defence went on to state that the claimant's contention that the action of the defendant has cost him his job and means of his livelihood, is speculative and sentimental. The defendant argued that speculation and sentiment has no place in law. Cited in support is the case of ONIA V ONYIA [1989] 1 NWLR (PT. 99), 524 @ 547. Now, it is pertinent to state here that terms and conditions of service are the bedrock of the employment relationship. See AMODU V AMODE[1990] 5 NWLR (PT. 150) 356. The employment relationship between the claimant and the defendant was regulated by his letter of employment, which is exhibit SM2, dated Nov, 8th 2005. It is evident by that exhibit SM2, the appropriate portion reproduced hereunder thus-- '' ... After confirmation, you may resign your appointment with the bank subject to giving the bank one month notice or paying the bank one month salary in lieu of notice'' That termination of employment by the claimant or the defendant is governed by the terms of the above captured letter. It is evident in the letter captured above that the claimant as rightly posited by the defendant, either party must give one month notice or one month salary in lieu of notice. This provision must be strictly adhered to or the termination or resignation as it is in this instance shall be wrongful. See LONGE V FBN PLC [2010] 6 NWLR (PT.1189)P.1 . It is on record that the claimant tendered his resignation letter on 14th July, 2008, effective on the same day, i.e exhibit SM7; the content is highlighted hereunder thus- '' July 14, 2008, The Head, Human Resources Management Department, Zenith Bank Plc, 84, Ajose Adeogun Street, Victoria Island, Lagos. Dear Sir, RESIGNATION OF APPOINTMENT I hereby resign appointment with zenith Bank plc effective July 14, 2008. The period of my appointment has been very eventful and impactful. I believe I have also contributed to the bank’s growth during the period of my employment with the bank. Kindly apply part of my outstanding 40 (Forty) leave days in lieu of notice. Please find returned my staff identity card No 20052468 issued December 19, 2005 and Lapel pin. I sincerely pray that the bank will continue to grow to meet the vision of the finding fathers. Sincerely, Gerald Ifeanyi Esogwa Deputy Manager/Group Head Corporate Banking Ikeja. It is evident in the above captured letter of resignation of appointment, that claimant did not give the requisite one month notice or one month salary in lieu of notice, rather he urged the defendant to commute his leave for the required one month notice. That is against the provision of the terms of his contract of service with the defendant as captured above. Leave period is not synonymous with notice period, he has failed, refused or neglected to fulfil the terms of his contract of service with the defendant. His resignation with immediate effect without the requisite notice is wrongful. The defendant is entitled to be paid one month salary in lieu of notice by the claimant in damages. I so find and hold. It is also the law that an employee who resigns with immediate effect is not entitle to any benefit. The consideration of leaving without notice has denied the employee, which in this case is the claimant his right of any benefit. In WAEC V OSHIONEBO [2006] 12 NWLR (Pt. 994) 258, it was held that tendering a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. It is the contention of the claimant that the defendant did not let him have the details of his indebtedness at the time he resigned, while the defendant on its own part countered this and stated that it informed the claimant of his indebtedness to the bank to the tune of N1,558,686.60 vide a letter dated 16th December, 2009, i.e. exhibit SM4 on record. The issue of indebtedness will be discussed later in this judgment. The main grouse of the claimant for filing this suit is failure of the defendant to give a reference letter about him to Oceanic bank, alleging that it cost him his job at Oceanic bank. It is the submission of learned claimant's counsel that the confirmation of the claimant's appointment with oceanic bank would not be done without the issuance of the reference letter of completion of the form attached to exhibit SM5 written by oceanic bank to the defendant. It is the contention of the claimant in paragraphs 29 and 30 of his sworn deposition that the principal reason for the loss of his job was the defendant's failure to issue the reference letter/form to oceanic bank. To the claimant it is customary in the banking sector for such reference letters to be issued. Reference was made to the claimant's letter of employment with the defendant i.e. exhibit SM2, which also requested for same. It is the position of the defendant on the other hand that first, the defendant is not oblige to issue a reference letter to the claimant, and that it is a discretionary matter which do not constitute a right enforceable by the Court. Secondly, it is argued that the claimant's employment with the defendant was terminated after he had been employed by Oceanic bank, the Court was referred to Exhibit GE3 and GE4 i.e. the claimant's resignation and offer of employment by oceanic bank letters. That the claimant was in breach of his terms of contract with the defendant. It posited that he who comes to equity must come with clean hands. The defence continued that the issuance of a reference letter by the defendant was not made a condition precedent to his employment by oceanic bank. Now, the pertinent question to answer is, is the defendant under any duty to issue a reference letter to the claimant? In the absence of any express contractual obligation, the general rule is that an employer is not under any legal or contractual duty to provide a reference for a former employee. See GALLEAR V JF WATSON & SON LTD[1979] IRLR, 306; HEDLEY BRYNE & CO V. HELLER & PARTNERS LTD [1964] AC, 465. According to the Black's Law Dictionary 9th Edition at PG 1393, the word ''reference'' is the act of sending or directing one person to another for information or advice as to the character, solvency, standing, etc of a third person who desires to open a business relations with the first or to obtain credit with him. There is no statutory obligation as none was tendered by the claimant, although he referred to a CBN policy but failed or neglected to produce the said policy in support of his assertion. The law is settled that he who asserts must proof, the claimant did not prove the existence of any law or CBN policy in support of his claim, it is thus discountenanced. There is therefore no known statutory provision placing an obligation on an ex employer to issue a reference to its ex employee. I so find and hold. I also find that there is no clause in the claimant's employment letter i.e. exhibit SM2 to the effect that he should be given a reference when leaving the defendant employment. The claimant contended that issuance of reference is a custom and practice in the banking industry. It is long settled that for a custom to be implied, it must not only be notorious but its existence must also be known to the parties whose contract is in issue. Thus, for a custom to be implied, it must be a general custom of standing, uniform and sufficiently notorious and well understood. See the cases of FOXALL V THE CONTINENTAL LAND CREDIT CO.[ 1967] LT,637; OKE V GREAT NIG. INS.CO.LTD [1972] CCHCJ/12/72, P.62. In support of his assertion the claimant cited AGBOMAGBE BANK's case supra, where the Court held that the practice of banks as regards cheques ought to have been followed by the defendant in that case and also that the defendant also made a reference letter a condition in the claimant's employment letter. Is it an implied term of the contract between the claimant and the defendant that the defendant would give the claimant a reference when he is leaving its bank? I do not think so, this is because first as decided supra, there is nothing on record in prove of this custom. Although nothing precludes an employer from giving a reference, but such an employer must be well informed of the implications there from. An employer who gives a reference may expose itself to possible actions in damages. An action for deceit will lie where he makes a false representation. In other words if an employer decides to give reference, then it must ensure that the reference is true, fair and reasonable. In COX V SUN ALLIANCE LIFE LTD [2001] IRLR.448, it was decided that if a former employee was regularly late to work, or suspected of stealing, you must state it in the reference, although you must have first put the allegation to him and in turn give him the opportunity to rebut it. There are potential pitfalls as stated above of giving a reference to a former employee. Hence for an employer to give a reference on an former employee, it must be able to vouch for the character and Professional qualities or capabilities of that former employee. Now, considering the circumstances under which the claimant left the defendant as argued by the defence counsel and as evinced on record, would it be right to find and hold that the refusal of the defendant to fill the reference form was the cause of his loss of job at oceanic bank? It has been held supra that the resignation of the claimant from the defendant bank without notice and salary in lieu of notice was wrongful. It is also clear that he left the employment of the defendant after he has been employed by Oceanic bank, he was indebted to the defendant at the time of his exit and finally, considering the fact that he left the defendant's bank with immediate effect. All these go to show that the claimant took the defendant unaware, he left them in limbo, without any consideration for them to have made necessary replacement to take up his position. The way and manner he left the defendant leaves much to be desired. I wonder, how such an employer who was dealt with by an employee in such a brashly manner, can write a reference to his new employer. I agree with the defence counsel, that he who comes to equity must come with clean hands. Justice and equity work hand in hand. Niki Tobi JSC,( Retd) retorted in INAKOJU V. ADELEKE [2007] ALL FWLR (PT.353),111; thus- '' What type of cleverness is that? What type of smartness is that? What type of trick is that ? I am tempted to add 'prank' to the list...'' Put tersely but frankly, I do not think an employer in a reasonable man's standing would oblige such a reference, if the defendant chose to write a reference wherein it writes infractions about his hushy hushy exit from its bank to oceanic bank, what would have been his reaction. I believe that if at all it is customary in the banking sector to reference a former employee,( which is not mandatory), that is not bereft of ethical conduct of the employee in question at the time of leaving his employer in the way and manner the claimant did, whilst also indebted to the defendant. This is a case of sowing the wind with assured harvest of whirlwind. The crucible of justice is a place for the enforcement of Justice and Equity which is cloaked in morality and fairness. I so find and hold. Finally, on this issue, would it be correct to hold that failure of the defendant to reference the claimant led to the termination of his employment by Oceanic bank? The claimant contended that failure of the defendant to fill out the reference form sent by oceanic bank cost him his job. whilst the defendant argued that termination of the claimant employment by oceanic bank was as a result of restructuring of banks at that time and he referred the Court to Exhibit GE11, which is the letter of termination of the claimant's employment. I have read the said letter and it is clear from same that the claimant's employment was terminated by Oceanic bank, as stated therein thus- ''following the decision of the bank to restructure, we write to inform you that your services are no longer required...'' They paid him compensation for loss of office, Redundancy package and other terminal benefits. That is a clear indication of the fact that his employment was not terminated in view of the defendant failure to reference him. There is nothing in his employment letter dated 28th May, 2008, making a reference by his former employer i.e. the defendant a condition precedent to confirmation of his employment by Oceanic Bank. It is therefore just to find and hold, having placed the evidence on the balance of probabilities, that failure of the defendant to reference the claimant was not the cause of termination of his employment by Oceanic bank. With regards to the second issue for consideration, the claimant is claiming special and general damages in the sum of N50,000,000.00. Particulars of the special damages are particularised as N18,200,000.00 being annual salary as senior Manager of Oceanic Bank, N7M for Honda Accord or Toyota Camry he would have been given as Senior Manager in Oceanic Bank and N500,000.00 for club membership as Senior Manager all. Has the claimant proven his case as to entitle him to these reliefs. It is argued that the claimant cannot succeed on the reliefs sought, having failed to prove that the defendant is responsible for his disengagement. To the defendant the claimant is still indebted to it and that he was informed of his indebtedness vide exhibits SM4, SM6 and SM9. The defendant urged the Court to dismiss the claimant's claims for being speculative. It is premised on the decision of the Court as regards issue one, that it is found that the claimant having failed to prove that the defendant was responsible for his disengagement by Oceanic bank, that the Court hold that the claimant is not entitle to reliefs sought. I am in agreement with the defendant that those claims are also speculative and the law is of common that Courts do not act on speculations but on law and facts. The claimant was disengagement by Oceanic bank as a Manager, and not as a Senior Manager. It is therefore speculative of him to request for his salary as a Senior Manager, a position he never attained at the time he was disengaged. In any case, the defendant as held supra, owe the claimant no duty of care and was not responsible for his disengagement and thus cannot be asked to pay his speculative salary and entitlements with Oceanic Bank. It is consequent upon this that I find and hold that the claimant's claims for general and special damages fail. The final, question to answer is whether the defendant has proven its counter claim to entitle it to reliefs sought. The defendant is counter claiming the sum of N3,114,686.60 being the indebtedness of the claimant as at 17th July, 2009, 21% interest on same, from July 2009 to April 2010 and until judgment; special damages in the sum of N14.6M and cost of action put at N500,000.00. The defendant contended that the claimant is indebted to it, and that according to DW he was informed vide exhibits SM4, SM6 and SM9 of that, but he had since failed or refused to pay. He went on to state that the claimant did not controvert this evidence, rather his contention is that he was not given the calculation of his indebtedness. It is the claimant's case that he was not given the details of his indebtedness to the defendant's bank after 20 months of his exit from the bank. He submitted also that he gave the defendant the authority to sell his shares of 40,000 units to offset his indebtedness to the defendant. He continued at paragraph 39 of the his additional sworn deposition that since he has not fully liquidated the value, the defendant is still the owner of the shares it granted him and that the share certificate is still domicile with the defendant. Hence he is not indebted to the defendant in that regard. It is on record that by exhibit GE6 dated 17th July, 2009, a year after the claimant's exit from its bank, the defendant wrote the claimant urging him to contact Human Resources Department to resolve issues of his outstanding liabilities, while in December, 2009, the defendant confirmed to the claimant that he is indebted to the bank to the tune of N1,558,686.60 and he was asked to pay this amount on or before 16th January, 2010. In addition he was asked to pay N1,556,000.00 as share loan. There is also on record of this Court an email correspondence between the claimant and one Irene Ijeh dated 16th and 17th December 2009, i.e. exhibit SM, this was before his disengagement from Oceanic bank. wherein the claimant suggested to pay his net indebtedness to the defendant by two instalments. Now, has the defendant proven its counter claims?. It is not in contention that the claimant is owing the defendant. The only disagreement is as to the amount owed. The claimant posited that since his shares and the share certificate is still in the custody of the defendant, he no longer owed it any share loan. He stated that he had given the defendant the authority to use it to offset his loan. The only problem with that, is that he did not give the current value of the 40,000 units of shares. The defendant also deliberately failed to give the current value of the claimant's shares in its custody. What the Court is left with is the amount granted as loan to the claimant for the purchase of the 40,000 units of shares, which is according to exhibit SM4 the sum of N1,556,000.00. Since it is evinced on record that the defendant is in custody of the defendant shares certificate for which the sum above was granted the claimant as loan, it is therefore in the respected view of the Court that the claimant is not indebted to the defendant as regards the share loan. I so find and hold. As regards the claim for balance of prepaid housing loan, dressing allowance, car loan, personal loan and one month salary in lieu of notice, all totalling N1,558,686.60, the claimant did not contest this sum of money, it is thus deemed admitted. The law is that facts admitted need no further proof. The defendant is thus entitled to be paid the stated amount by the claimant. Summarily, I hereby make the following declarations and orders- 1. That it is not mandatory for the defendant to issue a reference letter to the claimant's. 2. That the claimant's retirement by oceanic bank was not as a result of the defendant's failure to issue a reference on him, but was based on redundancy. 3. That the claimant is not entitle to any special or general damages. 4. That the claimant is indebted to the defendant to the tune of N1,558,686.60. 5. That the claimant's shares domiciled with the defendant shall be used to offset his share loan. 6. All sums in this judgment shall be paid within 60 days of this judgment. No order as to cost. Judgment is accordingly entered. Hon. Justice Oyewumi.O.O. Judge