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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><u><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">Kolade Ala with Bagbenga Bamodu for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">Oladipo Solanke with L.O. Patrick & A.O. Alagbe for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT</span></u><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">1. Introduction & Claims<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The Claimant instituted this action via <i>General Form of</i> <i>Complaint</i> and statement of facts dated 21<sup>st</sup> February, 2013 and sought the following reliefs -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the termination of the Claimant’s employment by the Defendant is illegal and unconstitutional. <o:p></o:p></span></p> <p class="MsoNormalCxSpLast" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. An order compelling the Defendant to pay the sum of =N=6,136,492.00 (Six Million, One Hundred and Thirty Six Thousand Four Hundred and Ninety Two Naira) as itemized below:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:1.0in;mso-add-space:auto; text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">i.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Salary not paid during suspension from February 2009 to June 2009 at the rate of =N=326,612.00 (Three Hundred and Twenty Six Thousand Six Hundred and Twelve Naira) per month totaling =N=1,633,060.00 (One Million Six Hundred and Thirty Three Thousand Sixty Naira).<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">ii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">October 2009 to December 2009 at the rate of =N=326,612.00 (Three Hundred and Twenty Six Thousand Six Hundred and Twelve Naira) per month totaling =N=979,836.00 (Nine Hundred and Seventy Nine Thousand Eight Hundred and Thirty Six Naira);<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">iii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Allowance not paid during suspension from March 2009 to May 2009 at the rate of =N=229,165.00 (Two Hundred and Twenty Nine Thousand One Hundred and Sixty Five Naira) per month total =N=687,495.00 (Six Hundred and Eighty Seven Thousand Four Hundred Ninety Five Naira);<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">iv.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">September 2009 to November 2009 at the rate of =N=229,165.00 (Two Hundred and Twenty Nine Thousand One Hundred and Sixty Five Naira) per month totaling =N=687,495.00 (Six Hundred and Eighty Seven Thousand Four Hundred and Ninety Five Naira); <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">v.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Leave Allowance/Ticket deduction 2008 =N=262,044.00 (Two Hundred and Sixty Two Thousand Forty-Four Naira);<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">vi.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Leave Allowance/Ticket 2009 =N=588,333.00 (Five Hundred and Eighty Eight Thousand Three Hundred and Thirty Three Naira);<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">vii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Salary not paid after recall (balance of half) from July 2009 to September 2009 at the rate of =N=163,306.00 (One Hundred and Sixty Three Thousand Three Hundred and Six Naira) per month totaling =N=489,918.00 (Four Hundred and Eighty Nine Thousand Nine Hundred and Eighteen Naira);<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">viii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Allowance not paid after recall (balance half allowance from July 2009 to August 2009 totaling =N=343,747.00 (Three Hundred and Forty Three Thousand Seven Hundred and Forty Seven Naira); and <o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:1.0in;mso-add-space:auto; text-align:justify;text-indent:-.5in;line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">ix.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Unremitted pension to Premium Pension Limited, the Pension Funds Administrator (PFA) at =N=51,250,000 (Fifty One Thousand Two Hundred and Fifty Naira) per month for 30 month totaling =N=1,537,500.00 (One Million Five Hundred and Thirty Seven Thousand Five Hundred Naira) that is from April 2007 to June 2009 and October 2009 to December 2009.<o:p></o:p></span></p> <p class="MsoNormalCxSpFirst" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">3. An order compelling the Defendant to pay the Claimant’s full salary/allowances from the date of the purported termination (December 2009) at the rate of =N=642,800.48 (Six Hundred and Forty Two Thousand Eight Hundred Naira and Forty Eight Kobo) per month until the case is determined.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">4. An order compelling the Defendant to pay the Claimant’s Leave Allowance/Ticket at =N=588,333.00 (Five Hundred and Eighty Eight Thousand Three Hundred and Thirty Three Naira) per annum from 2009 (until the case is determined);<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">5. An order compelling the Defendant to pay the Claimant’s Productivity Bonus at =N=591,953.00 (Five Hundred and Ninety One Thousand Nine Hundred and Fifty Three Naira) from 2009 (Until the case is determined) as agreed in the Claimant’s employment letter.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">6. An order compelling the Defendant to pay Claimant his full gratuities taking into account all years the Claimant has spent in the Defendant’s service;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">7. General damages in the sum of =N=10,000,000 (Ten Million Naira) for breach of Claimant’s contract of employment with the Defendant stigma associated with a dismissed senior officer rank of a bank, economical embarrassment, ridicule and reduction of the Claimant in the estimation of ordinary reasonable member of the society.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">8. 10% interest on the amount claimed above from the day judgment is entered against the Defendant and until the final liquidation of the money judgment.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto; text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Claimant filed his writ along with all the processes of Court as mandated by the Rules of Court. The Defendant reacted as appropriate and filed its amended statement of defence on 2/2/16. Same was accompanied by witness deposition on oath, the list of witnesses to be called as well list and copies of documents to be relied on at trial.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">2. Case of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On 15/9/15, the hearing of this case commenced with the Claimant testifying as <i>CW1. </i>Witness adopted his witness statement on oath dated 28/4/15 as his evidence in chief and tendered 19 documents as exhibits. The documents were admitted as exhibits and marked as <i>Exh. C1-Exh. C19. </i>The case of the Claimant as revealed in his pleadings are that while working with the Defendant, he was put on suspension without pay for 3 months; that he was recalled from the suspension; that his employment was subsequently terminated by the Defendant and that the termination of his employment was both illegal and unconstitutional. Under cross examination the witness stated that his letter of suspension was titled ''Recovery Suspension''; that he was meant to recover loans granted by the Bank from the customers; that there were about seven accounts involved; that he was the Relationship Manager for those Accounts as well as others; that he could not recall the exact figure of the total expenses but it was about Three Hundred and Ninety Million Naira; that he was able to recover some amounts; that he could however not recover the whole amount; that he recovered about Thirteen Million Naira out of about =N=390 Million; that as a Relationship Manager he was meant to drive the business; that he did not mismanage the business of the Defendant; that he was issued two letters one titled: ''Termination of Appointment'' and the other which came later was titled: ''Disengagement''; that he was not given any notice but was paid 3 months’ salary in lieu of notice and that as at June 2015 his pension deductions were not remitted. Under re-examination, the witness added that recovery of loans from defaulting customers is not the responsibility of Relationship Manager.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">3. Case of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The Defendant opened its defence on 29/2/16 when one Olakunle Olashore testified as its lone witness. the witness adopted his witness statement on oath dated 2/2/16 as his evidence in chief and tendered 11 documents as exhibits. The documents were admitted and marked as <i>Exh. D1-Exh. D11. </i>The case of the Defendant is that it terminated the employment of its employee in accordance with the contract of employment between them; that it paid the Claimant three months salary in lieu of notice of termination and that it also credited the Claimant's Retirement Savings Account with <i>STAMBIC</i> <i>IBTC </i>with the sum of =N=513,357.00 being Claimant's outstanding pension fund not remitted by legacy <i>Intercontinental Bank Plc. </i>Under cross examination the witness testified that he signed his statement on Oath before the Registrar downstairs; that Claimant’s appointment was not terminated because of loan; that the Bank gave out the loan through Relationship Manager; that he does not know the Relationship Manager at the time the loan was granted; that he does not have information on the date of the loan; that he has been working with Defendant for over 6 years; that it is for Relationship Manager to manage loans granted on his recommendation; that at the time of the loans in this case Claimant was in the employment of Defendant; that there are about 37 loans in all; that it is for Relationship Manager to inform the Bank of activities that may lead to default of loan repayment; that both Termination of Employment and Disengagement simply mean services no longer required; that there are different guidelines regulating employment of a Banker which include CBN Guidelines; that the Claimant was not made to face any panel before his appointment was terminated; that the Claimant’s pension was remitted last in 2015; that this was done upon merger of some Banks to Defendant and it was discovered that some staff pension of legacy Bank were not remitted; that remission is done monthly; Claimant is not indebted to the Defendant and that Claimant does not need any letter of non-indebtedness from Defendant to collect his pension.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">4. Submission on Behalf of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">At the close of the trial, learned Counsel on either side filed their final written addresses. The final written address of the Defendant was filed on 26/5/16. In it learned Counsel set down the following 6 issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the termination of the Claimant’s employment by the Defendant was in accordance with the terms of the Claimant’s contract of employment with the Defendant;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Claimant is entitled to a declaratory judgment of this honourable court that the termination of the Claimant’s employment with the Defendant was unlawful and unconstitutional and therefore null and void;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant is entitled to an order of this honourable court directing the Defendant to pay the Claimant’s the sum of N6,136,492 (Six Million One Hundred and Thirty Six Thousand Four Hundred and Ninety Two Naira) as itemized in the Claimant’s 4<sup>th</sup> Amended Statement of Facts.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Claimant is entitled to an Order of this honourable Court compelling the Defendant to pay the Claimants his full salary and emoluments from the date of the termination of his employment until the determination of this action.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Whether the Claimant is entitled to an Order of this honourable court compelling the Defendant to pay the Claimant his full gratuities.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Whether the Claimant is entitled to the sum of N10,000,000.00 (Ten Million Naira) as general damages.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 1, Learned Counsel submitted that the contract of employment between the parties is purely one of master and servant as evidenced by <i>Exh. D1, Exh. D4 & Exh. D9. </i>Counsel submitted that in a relationship as this either party is at liberty to terminate the contract by simply complying with the terms of the said contract; that once a contract is reduced into writing the duty of the Court is to interpret same citing <i>Mrs. COA Fekuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993)LPELR & Augustine F.I Ibama v. Shell Petroleum Development Company of Nigeria Limited (2003) LPELR-1381 (SC). </i>Learned Counsel submitted that the Defendant complied with all the contractual terms and conditions applicable before terminating the employment of the Claimant. Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On whether the Claimant is entitled to a declaratory judgment of this honourable Court that the termination of the Claimant's employment with the Defendant was unlawful and unconstitutional and therefore null and void, learned Counsel submitted that the position of the law in a long line of cases is that in case of a master and servant relationship, the remedy for wrongful or unlawful dismissal or termination of a servant is not in foisting the servant on an unwilling master but rather the remedy lies in damages citing <i>Elijah I. Ezekwere v. Golden Guinea Breweries Limited (2000)8 NWLR (Pt. 670), Shitta-Bey v. Federal Public Service Commission (1981)12 NSCC 19 & Osisanya v. Afribank Nigeria Plc (2007) LPELR-2809(SC). </i>Counsel argued that whether or not the Defendant acted outside the terms of the contract of employment between it and the Claimant or acted unconstitutionally, the fact remains that the termination has brought the employment relationship to an end citing <i>New Nigeria Newspapers Limited v. Mr. Felix Atoyebi (2013) LPELR-21489 (CA). </i>Counsel urged the Court to dismiss the claim of the Claimant for declaratory relief that the termination of his employment is illegal and unconstitutional.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Respecting issue 3, Counsel submitted that a case may be won or lost on the strength or weakness of the pleadings citing <i>Ramonu Rufai Apena & Anor. v. Fatai Aileru & Anor (2014) LPELR-23305 (SC); </i>that whereas the Defendant copiously averred in its pleadings that the suspension of the Claimant on two occasions without pay was in accordance with the terms of his employment with the Defendant referring to paragraphs 11,12,15,17,19 & 20 of its witness deposition on oath, the Claimant did not deem it fit to deny or challenge any of the averments and that in addition the Claimant did not report for duty during the period of suspension and so did not work and hence not earned any payment to justify his claim. Counsel submitted that it is trite law that Court must act on unchallenged evidence citing <i>Mobil Producing Nigeria Unlimited & Anor. v. Udo Tom Udo (2000) LPELR. </i>Counsel prayed the Court to resolve this issue in favor of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Arguing whether the Claimant is entitled to an order of this honourable court compelling the Defendant to pay the Claimant his full salary and emoluments from the date of the termination of his employment until the determination of this action, learned Counsel submitted that even if the termination of the Claimant were to be unlawful and at variance with his contract of employment, the remedy available to him lies in damages which will be what he would have earned had the terms of the contract complied with citing <i>Olatunbosun v. NISER Council (1988)3 NWLR (Pt. 80) 25 & Isong Udofia Umoh v. Industrial Training Governing Council (2001)4 NWLR (Pt. 703) 281.</i> Counsel urged the Court to hold that the Claimant is not entitled to a grant of this reliefs.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Regarding Issue 5 Counsel submitted that the onus is on the Claimant to plead and prove that he is entitled to gratuity and the amount; that the claimant's claim in this regard is in the nature of special damages which must be strictly pleaded and established by the Claimant citing <i>Dumex v. Ogboli (1972)3 S.C 205; </i>that the Claimant's pleadings and testimony on oath in court did not mention the entitlement of the Claimant to gratuity let alone the amount involved. Counsel prayed the Court to hold that the Claimant is not entitled to an order of Court sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On a claim of the sum of =N=10,000,000.00 as general damages, Counsel submitted that a claim for general damages in a contract of employment is strange and that Claimant in an action for wrongful or unlawful termination of employment is not entitled to general damages because such general damages belong to the realm of claims in tort while actions for damages for wrongful or unlawful termination/dismissal are based on contract citing <i>PZ Limited v. Ogedengbe (1972)1 All NLR (Pt. 1) 202 at 205-206 & Federal College of Education v. Anyanwu (1997)4 NWLR (Pt. 501) 533 at 561.</i> Learned Counsel urged the Court to hold that the Claimant is not entitled to general damages.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">5. Submission on Behalf of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The final written address of the Claimant was dated and filed on 25/10/16. In it learned Counsel argued set down the following issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. In evaluate the evidence before this Court, the staff Hand book is the document containing the terms of the contract between the parties.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Claimant is entitled to his salaries, allowances and all other entitlements as per the Claimant writ of summon and statement of facts.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Defendant observed the rules of fair hearing in proceeding leading to the termination of the Claimant?.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Claimant’s termination is wrongful and unjustifiable?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Whether the courts empower to look at document in its file not tendered?.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5in;mso-add-space:auto; text-align:justify;text-indent:-.5in;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Whether the Claimant is entitled to his unremitted pension.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5in;mso-add-space:auto; text-align:justify;text-indent:-.5in;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. Whether the Claimant proved his case of wrongful termination against the Defendant as required by law.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5in;mso-add-space:auto; text-align:justify;text-indent:-.5in;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On whether the Claimant is entitled to his salaries, allowances and all other entitlements as per the Claimant's writ of summons and statement of facts Counsel submitted that there is no implied power in the employer to punish a servant by suspension; that the power must be express in the terms of the contract of employment and that where a servant is suspended the employer must the servant during the period of suspension citing <i>Warburton v. Talf Vale Railway Co. (1902)18 TLR 420.</i> Counsel submitted further that the Claimant was not paid during the period of suspension and that the Court should hold that the Claimant is entitled to be paid.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 3 Counsel submitted that it is trite that where an employer terminates the employment of an employee on ground of misconduct, the employer must observe the rules of natural justice in conducting the proceeding leading to the termination citing <i>SPDC Limited v. Olanrewaju (2008)12 S.C 27. </i>According to learned Counsel Claimant was never invited by any Committee or panel before his employment was terminated and that Claimant's employment was terminated without him committing any offence as stipulated in the <i>Staff Handbook. </i>Counsel prayed the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 4 Learned Counsel submitted that the termination of Claimant's employment for misconduct is wrongful, unjustifiable and a breach the Claimant's right to fair hearing; that though an employer is not bound to give reason to terminate an employee's employment where an employer gives reasons, the reasons must be justified, citing <i>SPDC Limited v. Olanrewaju (Supra). </i>Counsel added that from the letters of suspension, it is clear that the Claimant's employment was terminated because of irregularities in some customers accounts; that the Claimant was merely a Relationship Manager and that granting of loan is purely the affair of the Management of the Defendant and not Claimant. Counsel prayed the Court to hold that the termination of Claimant's employment is wrongful and unjustifiable.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Respecting 1ssue 5 Counsel argued that the Claimant has been stigmatised by the wrongful termination of his employment and that the Court is entitled to award substantial damages far beyond the normal period of notice citing <i>British Airways v. Makanjuola (1993)8 NWLR (Pt. 381) 276. </i>Counsel thus urged the Court to award damages to the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On whether the courts are empowered to look at documents in its file not tendered, learned Counsel argued that in paragraph 25 of the Claimant's 4th Amended statement of facts a document dated 18/11/09 was referred to but that due to oversight Counsel did not tender same as exhibit. Counsel submitted that the Court is entitled to look at the said document citing <i>Akinola v. V.C. Iloriry (2004)11 NWLR (Pt. 885) 616. </i>Counsel urged the Court to so hold. On whether the Claimant is entitled to his unremitted pension' Counsel submitted that if his argument that the suspension was irregular and void is held in favour of the Claimant then that the Claimant's pension should be paid during that period and that it follows that the Claimant worked for Defendant for 33 months and therefore Claimant's pension should reflect 33 months. Counsel referred to <i>Section 11, Pension Reform Act, 2014 </i>and prayed the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Respecting the last issue which is whether the Claimant proved his case of wrongful termination against the Defendant as required by law, Counsel submitted that the Claimant has proved his case of wrongful termination against the Defendant; that there is evidence before the Court that the Claimant's employment was terminated without compliance with the provisions of the Staff Handbook which guides the Claimant's employment and that there was non-compliance with the rules of fair hearing. Counsel prayed the Court to so hold. On 2/11/16, the Defendant filed a 6-page reply on points of law. <b><o:p></o:p></b></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">6. Decision<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">I carefully read and understood all the processes filed by learned Counsel on either side. I carefully evaluated all the exhibits tendered in this case, closely watched and listened attentively to the oral testimonies of the witnesses called at trial. Having done all this, I narrow the issues for the just determination of this case to be mainly 2 as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether or not the employment of the Claimant was properly terminated in accordance with the terms and conditions applicable between the parties.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether or the Claimant has proved his case to be entitled to any or all the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Respecting the first issue, the law remains trite the burden of proof is always on the Claimant to discharge in order to be entitled to favourable disposition of the Court. The proof required is one by both credible and cogent evidence. Now in a case of this nature that is one for wrongful termination of employment, the Claimant is under an obligation to place before the Court his contract of employment in which is stated the terms and conditions of his engagement and further prove to the Court how those terms and conditions of engagement were breached by the Defendant in terminating his employment. It must be borne in mind in all this that the duty of the Court is simply to construe the applicable contractual document voluntarily executed by the parties. In so construing the Court is to give meaning to the necessary intention of the parties. It is not for the Court to make contract for the parties or amend the existing one between them.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Now in the instant case, there is a consensus among the parties that the terms and conditions of engagement are contained in both <i>Exh. C12 (Letter of Appointment </i>and <i>Exh. C1 Staff Handbook). </i>Under the latter exhibit, ''Either party may terminate the appointment at any time by giving to the other three-month notice in writing or pay in lieu thereof''. Claimant's appointment was terminated by <i>Exh.C4</i> with no reason given respecting the termination. That exhibit was dated 14/12/09 and to be effective same day. There is evidence to the effect that by <i>Exh. C5 </i>dated 18/12/09, Claimant was informed that he would be paid three months basic salary in lieu of notice in addition to other benefits including three months basic salary as ex-gratia. I note from all this that the Defendant had discharged all that is expected of it to successfully terminate the employment of the Claimant. The Claimant had not argued that the three months basic promised in lieu of notice was not paid. I therefore hold that the termination of employment of the Claimant by the Defendant was proper and carried out in accordance with the terms and conditions of service of the Claimant. It needs be noted that the power and right of an employer to discipline any of its workforce can hardly be taken away. This is also just as the right and power of an employee to withdraw his services from an employer cannot be hindered. Indeed while no Court will foist a willing employee on an unwilling employer, no reluctant or unwilling employee can forced to work for a willing employer. The first declaratory relief sought is here refused and dismissed.<i><o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The second issue is whether the Claimant has proved his case to be entitled to all or some of the reliefs sought. The first prayer sought which is declaratory order has been refused and dismissed while considering the issue 1 set down for determination.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The second prayer is for an order compelling the Defendant to pay the sum of =N=6,136,492.00 as itemised. It was the evidence both in the pleading and the witness statement on oath that the suspension of the Claimant without pay was in accordance with the terms of his contract of employment. This evidence was left unchallenged in whatever form or manner, not even under cross examination. The state of the law is rather elementary now that a Court is entitled to rely on unchallenged evidence. Such unchallenged is indeed deemed admitted. See <i>Mabamije v. Otto (2016) LPELR (SC). </i>In any event, there is no evidence before attesting to the fact that the Claimant rendered services to the Defendant during the period of suspension. The law remains that a servant will not be paid for services not rendered. See <i>New Nigeria Newspapers Limited v. Atoyebi (2013) LPELR-21489 (CA). </i>I hold, for all the reasons as stated the this relief cannot be granted. It therefore refused and dismissed accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The 3rd, 4th and 5th prayers are for payment of certain sums of money to the Claimant ''from 2009 until the case is determined''. The basis of these reliefs would seem to me to be that the employment relationship between the parties is still existing. This Court has already found and held that the termination of the employment of the Claimant was valid and not wrongful. That, no doubt, is the simple effect of <i>Exh. C4. </i>The right of an employer to disengage any of its staff cannot in any way be hindered. The law remains trite that in a master/servant relationship a letter of termination, just like that of resignation, becomes effective once received. See <i>WAEC v. Oshinebo (2006)12 NWLR (Pt. 994) 258. </i>A servant cannot and is not permitted by law to discountenance a letter of termination of his employment and continue to treat his employment as still subsisting once the master indicates desire to bring same to an<b> </b>end. See <i> Olatunbosun v. NISER (1988) LPELR-2574 (SC).</i> Even where the termination is wrong, the remedy is in damages. I am constrained to further add that the fact is not contested that the from the time the employment of the Claimant was terminated, he had ceased to work for the Defendant. There is no evidence before the Court to show that the Claimant continued to report to work and has been rendering services to the Defendant. To grant these reliefs as sought by the Claimant will amount to paying him for services he did not render to the Defendant. The law is trite that a servant is not entitled to payment of salaries for the period he renders no services to his master. See <i>Co-Operative Bank Nigeria Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 & Olatunbosun v. NISER (1988)3 NWLR (Pt. 80) 50. </i>same is refused and dismissed.<b><o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Claimant also sought an ''Order of compelling the Defendant to pay to the Claimant his full gratuities taking into account all years the Claimant spent in the Defendant's services''. This relief is vague in the way and manner it was framed. For instance, for how many years did the Claimant work for the Defendant? Even assuming the Court could deduce this from the date of his employment and the date of termination of his employment, how much is the Claimant entitled as gratuity? How is it to be calculated? What will be the basis of the calculation? All these issues were not addressed by the Claimant. Rather the Court is saddled with the task of having to speculate or at best commence making independent enquiries in order to grant a relief to the Claimant. It is not the duty of the Court to speculate but to adjudicate. See <i>Ejezie v. Anuwu(2008)4 SCNJ 113, Odonigi v. Oyeleke (2001)4 SCM 127 & Onitiju v. Lekki Concession Co. Limited (2016) LPELR. </i>It is certainly a bad practice for a Counsel to shift the responsibility of advocacy and properly presenting his to the Court. I find no basis to grant this relief. It is therefore refused and dismissed accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Claimant sought general damages in the sum of =N=10,000,000.00 for breach of contract of employment with the Defendant and stigma associated with a dismissed senior Bank Officer, economic embarrassment, ridicule and reduction of Claimant in the estimation of ordinary member of the society. Generally speaking damages are meant to assuage for wrong committed. In this Judgment, I have found and held that the termination of the employment of the Claimant was proper and valid and in compliance with the terms and conditions applicable. That being the case no wrong is found committed against the Claimant for which damages is to remedy. Accordingly, I refuse and dismiss this claim as well. Having so held, I further hold that in the light of this Judgment thus far, there is no basis to grant any interest as no sum is awarded.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I dismiss the case of the Claimant in its entirety. I make no order as to cost.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Judgment is entered accordingly. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><i><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></i></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:center;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><i><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></i></p>