Download PDF
By a complaint dated and filed on 28th November 2011, the claimant is claiming against the defendant the following reliefs – 1. A declaration that his summary dismissal vide a letter dated June 22, 2010, reference number: HCM/IRSW/24224/2010 and signed by the duo of Tolu Ilori and Babs Ogunleye is wrongful, null and void and of no effect whatsoever. 2. An order changing the summary dismissal to termination. 3. An order directing the defendant to pay the claimant the sum of N1,624,926.66 being 3 months’ salary in lieu of notice as damages. 4. An order directing the defendant to pay the claimant the sum of N33,073,597.52 being his terminal benefits which by the terms of his employment is calculated as 16 weeks of total emoluments for each completed year of service, which said year of completed service is 29 years. 5. An order directing his current pension savings held by Trustfund on behalf and for the benefit of the claimant be paid to the claimant. 6. An order directing that the retirement contributions of the claimant held by the defendant be paid to him. Accompanying the complaint are the claimant’s statement of facts, list of witness, list of exhibits and copies of the exhibits (Exhibits A – H). By order of Court made on 22nd March 2012, parties were asked to file and serve sworn depositions of witnesses. The claimant filed his deposition on oath on 24th April 2012 but later applied for leave to amend his statement of facts and witness deposition on oath. The Court on 19th June 2012, granted this prayer; and the claimant thereby filed an amended statement of facts and an amended claimant’s deposition on oath. The claimant again applied for leave to amend his statement of facts as well as the deposition on oath. The Court granted this prayer; and the claimant thereby filed a 2nd amended statement of facts and a further claimant’s deposition on oath – the further deposition was filed on 7th January 2013. Additional documents (Exhibits I – N) were also filed. The defendant meanwhile entered appearance by filing its memorandum of appearance but did not file any other defence process until 28th March 2013 when it filed its statement of defence, list of witness, list of documents, copies of the documents and written statement on oath of the defendant’s witness, named as Mr. Anthony Shadare. Of the 10 court sittings held between 21st February 2012 and 10th June 2013 (both dates inclusive), counsel to the defendant made only two appearances in Court i.e. on 21st February 2012 and 22nd March 2012. So even when trial commenced in terms of the claimant testifying as CW, the defendant was not in Court nor was it represented by counsel throughout the trial despite the service of hearing notices on the defendant. Order 9 of the National Industrial Court (NIC) Rules 2007 enjoins a party served with a complaint and the accompanying originating processes and who intends to defend the action to file defence processes as provided therein. Order 9, therefore, recognizes the right of a defendant not to defend an action filed against him/her. And by Order 19 Rule 2, where the defendant is absent at the trial and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her. See this Court’s decision in Attorney General, Osun State v. Nigeria Labour Congress (Osun State Council) & ors unreported Suit No. NICN/LA/275/2012 the judgment of which was delivered on December 19, 2012. This Rule, of course, accords with the minimal evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial Court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. It was as a result of all of this that the Court then permitted the claimant to argue its case even in the absence of the defendant. The case of the claimant is that he was offered an appointment as a Copy Typist starting from 13th January 1981 by the defendant pursuant to a letter of appointment (Exhibit A) dated 9th April 1981, which incorporated the collective agreement as part of its terms and conditions. By a letter dated 19th October 1981 (Exhibit B), the said employment was confirmed. The claimant was then promoted to a Senior Assistant Manager vide a letter dated 19th November 2007 (Exhibit C). That by being a senior Assistant Manager, he became a member of the Association of Senior Staff of Banks, Insurance and Financial Institution (ASSBIFI) and had always paid his dues. The claimant went on that he served the defendant for 29 years meritoriously in different capacities. That he received a letter dated 22nd June 2010 (Exhibit G) purporting to dismiss him with the words – We regret to inform you that your services are no longer required in the Bank. Consequently you are hereby dismissed from the services of the Bank with immediate effect and nothing more. To the claimant, the reason, “your services are no longer required in the Bank”, is not one of the reasons for summary dismissal in their collective agreement. That the three months’ notice or salary in lieu as required by the terms of employment was not given to him. To the claimant then, the said dismissal was most oppressive and has worked great hardship on him, stigmatizing him with guilt and infamies as well as denying him his severance benefit which he is entitled to, having served the defendant for a non-broken period of 29 years. The claimant then urged the Court to grant his claims against the defendant as contained in his statement of facts establishing the cause of action. The claimant went on to frame two issues for the determination of the Court, namely – a) Whether from the totality of the evidence given by the claimant both oral and documentary, without being controverted, challenged or opposed by the defendant and on the preponderance of probability, the claimant is not entitled to judgment in his favour against the defendant. b) Whether from the totality of the evidence before the Court, the claimant proved his case to entitle him to judgment. Regarding issue a), the claimant contended that in compliance with the Rules of this Court, he filed his originating processes, which were duly served on the defendant, who entered appearance through its solicitors via a Memorandum of Appearance dated 13th February 2012. That he testified as CW, gave evidence in proof of his case and concluded on the 21st March 2013. He then tendered the following exhibits: Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, and N. Exhibit A is the employment letter dated 9th April 1981. Exhibit B is the letter confirming the claimant’s appointment dated 19th October 1981. Exhibit C is a promotion letter dated 19th November 2007. Exhibit D is the collective agreement. Exhibits I, J, K and L are the claimant’s pay-slips evidencing payment of his membership dues as a member of ASSBIFI. That the defendant did not cross-examine CW. It did not file any defence to the claimant’s statement of facts establishing the cause of action barely one year after entering an appearance on the 13th February 2012. This is notwithstanding several hearing notices ordered, issued and served on it with proof of such services in the Court’s file. The claimant then submitted that where the evidence adduced by a party (as in this case) was not contradicted or challenged by the defendant, nor the evidence of such witness shaken under cross-examination, it is always open to the court seized of the matter to act on such unchallenged evidence before it. That since the defendant led no evidence in rebuttal of any of the issues contained in the claimant statement of fact establishing the cause of action, the Court should grant the reliefs claimed by the claimant. That the burden of proof placed on the claimant by virtue of section 133(4) of the Evidence Act 2011 has been discharged by the claimant. This the claimant did when he gave evidence and tendered 14 exhibits in proof of his claims and the said burden shifted on the defendant. Furthermore, that the burden of proof required by the claimant to proof his case where the defendant did not file any defence is minimal, referring my lord to the case of Nigerian Bottling Company Plc & anor v. Mallam Ibrahim Abubakar [2006] 16 WRN 175 at 185 where Ba'aba, JCA cited with approval the Supreme Court decision in Kosile v. Folarin [1961] 2 SCNLR 233 that – Where evidence called by a plaintiff is neither challenged nor contradicted, the onus of proof on him is discharged on a minimum of proof. The claimant then urged the Court to hold that the claimant has discharged the burden of proof placed on him, when the evidence of the claimant was not challenged or controverted. That the defendant, having not challenged the evidence of the claimant, is deemed to have admitted or accepted the facts adduced by the claimant, urging the Court to so hold. Regarding issue 2 i.e. whether from the totality of the evidence before the Court the claimant has proved his case to entitle him to judgment, the claimant contended that he was an employee of the defendant Bank, formerly International Bank for West Africa Ltd and Afribank Nigeria Plc, and now Mainstreet Bank Ltd by order of the Central Bank of Nigeria (CBN). That he became an employee of the defendant vide a letter of appointment dated 9th April 1981 and the said employment was confirmed vide a letter of confirmation dated 19th October 1981. That he was promoted to the level of Assistant Manager by virtue of which he became a member of the Association of Senior Staff of Banks, Insurance and Financial Institution (ASSBIFI) and has been paying his membership dues. In proof of this he tendered Exhibits I, J, K, L, M and N. The claimant went on that on 22nd June 2010 he was summarily dismissed from the employment of the defendant vide a letter of summary dismissal of that date. It was this dismissal that made the claimant to approach the Court. To the claimant, he is a member of ASSBIFI and he was paying his union dues. This is evidenced in Exhibits I, J, K, L, M, and N, while the defendant is a member of the Nigerian Employers Association of Bankers, Insurance and Allied Institution (NEABIA). That these two bodies which both the claimant and defendant were members respectively have a collective agreement that guides and regulates its members. Specifically, that this agreement made provisions for the procedures to follow before termination or dismissal of employee members and the benefit accruable thereto. The claimant continued that members are bound by this collective agreement. That the claimant, being a member of the Association of Senior Staff of Banks, Insurance and Financial Institution (ASSBIFI), is protected by this collective agreement and the defendant is bound to observe the terms, conditions, benefits and procedure contained in the said collective agreement while dealing with any member. The claimant went on that his summary dismissal by the defendant which ran inconsistent with the said collective agreement is wrongful and of no effect. That in the case of The Registered Trustees of the Planned Parenthood Federation of Nigeria & anor v. Dr. Jimmy Shogbola [2005] 1 WRN 15 at 167, Chukwuma-Eneh, JCA (as he then was) stated the principle enunciated in the case of Tomlirison v. Lmssr [1944] 1 All ER 537 which case espoused the principle that where a collective agreement has been incorporated into a contract of employment that has set out the steps to be followed for its determination, anything short of that shall be declared wrongful. Furthermore, that the claimant, being an employee of the defendant and a member of ASSBIFI, is entitled to the benefits contained in the said collective agreement. More so, that the conditions stated in the claimant’s letter of summary dismissal (Exhibit G) has never been a condition that could attract dismissal, at best it could be for termination of employment. For ease of reference, the claimant reproduced it as follows – We regret to inform you that your services are no longer required in the bank. Consequently you are hereby dismissed. The claimant then submitted that the letter of summary dismissal dated 22nd June 2010 (Exhibit G) speaks for itself. That this reason cannot earn the claimant summary dismissal, urging the Court to so hold. In conclusion, the claimant submitted that he has proved his case as per the preponderance of evidence required of him. That the defendant, having failed to file a defence, and the witness, having not been cross¬-examined, the preponderance of evidence required of the claimant in proof of his case is minimal, urging the Court to so hold. In considering the merit of the case, I must reiterate that by the minimal evidential rule, a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial Court. See Order 19 Rule 2 of the NIC Rules 2007, Attorney General, Osun State v. Nigeria Labour Congress (Osun State Council) & ors, Mr. Lawrence Azenabor v. Bayero University, Kano and Ogunyade v. Oshunkeye (all supra). Reliefs 4, 5 and 6 claimed by the claimant against the defendants were not argued for by the claimant. All the claimant did was to simply argue that because the defendant did not file any defence or cross-examine CW, then the claimant is entitled to judgment regarding all his claims. This is certainly not the law. The fact that the defendant did not enter any defence does not absolve the claimant of the duty to prove his case on the minimal evidence rule. An averment that “by the terms of my employment as contained in our collective bargaining agreement, my severance benefits includes 16 weeks emolument for each completed years of service, in addition to 3 months salary in lieu of notice, Retirement Contribution, and Pension Contribution”, pleading the Statement of Account of his Retirement Savings with Trust Fund (Exhibit H), which is actually not even readable, as the claimant did in paragraph 32 of his further witness statement on oath sworn to on 7th January 2012 but filed in this Court on 7th January 2013, is not good enough proof as not even the provision(s) of the collective agreement evidencing his claim was referred to in the claimant’s written address. Whether counsel is expecting the Court to be the one to search for the provision(s) that support his client’s claim is what I do not know. For this reason, reliefs 4, 5 and 6 are hereby deemed abandoned. They are accordingly struck out. This leaves out reliefs 1, 2 and 3. Central to these reliefs is Exhibit G, a letter dated June 22, 2010 with Ref. No. HCM/IRSW/4224/2010 and titled “Summary Dismissal”. The complaint of the claimant here is that he was simply dismissed by the defendant with immediate effect without necessarily being told what he did as an offence beyond the statement in the first paragraph of the dismissal letter that his services are no longer required by the Bank. It is the argument of the claimant that nowhere in the collective agreement (note that by Exhibit A, the letter of appointment, the claimant’s employment by the Bank is as per the terms and conditions of “our Collective Agreement”, effectively incorporating the collective agreement as part of the conditions of service of the claimant – Oguejiofor v. Siemens Ltd [2008] 2 NWLR (Pt. 1071) 283) is there any provision stating that he can be dismissed on the ground that his “services are no longer required”. Here the argument of the claimant is that “your services are no longer required” is actually the reason for the dismissal. But is “your services are no longer required” actually a reason? In the context in which that phrase appeared in Exhibit G, I think that the phrase is itself the act of dismissal, not the reason; and this is so despite the ensuing words: “Consequently, you are hereby dismissed from the services of the Bank with immediate effect” (the emphasis is the Court’s). This aside, judicial authorities in Nigeria are clear that whether termination or dismissal, there is no need for the employer to state reasons for such termination or dismissal of the appointment of an employee. See Ihezukwu v. University of Jos [1990] 4 NWLR (Pt. 146) 598 SC. The case of ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA held that an employer, when he dismisses his employee, need not allege any specific act of misconduct on the employee’s part as the ground for the dismissal. That it is sufficient if such a ground did exist, whether or not the employer knew of it at the time of the dismissal. The Court of Appeal went on that it is not a requirement of the law that the nature or particulars of the gross misconduct are to be disclosed at the time of the dismissal. This is, however, not the case in the instant suit in order to bring into effect this judicial authority. Furthermore, it is settled law in Nigerian labour jurisprudence that a distinction is made between termination and dismissal in employment relationships. By J. A. Irem v. Obubra District Counsel [1960] 5 FSC 24, the dismissal of an employee carries infamy and deprives him of benefits. And by Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 443 SC, dismissal is punitive and depending on the contract of employment, very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee. Termination, on the other is not necessarily so and enables the employee to receive terminal benefits under the contract of employment. The claimant argued that he is a member of the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). In proof, and by paragraph 36 of his further witness statement on oath dated 7th January 2012 but filed on 7th January 2013, he tendered Exhibits I, J, K and L, all pay-slips evidencing monthly deductions of check-off dues from him to ASSBIFI for the months of August 1995, December 2004, January 2009 and April 2009 respectively. The case of Habu v. NUT Taraba State [2005] 4 FWLR (Pt. 283) 646 held that the deduction from salaries and wages as check-off dues of a worker and remittance of same to a trade union is an incidence of membership of the worker. By this authority, I find and hold that the claimant was a financial member of ASSBIFI. His conditions of service by Exhibit A is, therefore, government by the collective agreement, which is Exhibit D. Article 4 of Part II (section 1) of Exhibit D deals with disciplinary procedure. In Article 4(iv), provision is then made for summary dismissal for a variety of acts of gross misconduct ranging from theft, fraud, dishonesty, willful disobedience, drunkenness, or taking of drugs, intentional divulging of confidential information, conviction for a criminal offence, prolonged or frequent absence from work to fighting and assault, using abusive or insulting language, etc. Article 4(iv)(c) of Part II (section 1) goes on to provide that before either summary dismissal or warning letter is effected, the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded. Now, in the instant case, there is no evidence before the Court that the claimant absconded or that he was “given a written query and afforded the opportunity of defending himself” in accordance with Article 4(iv)(c) of Part II (section 1) of Exhibit D. This means that when in Exhibit G the claimant was summarily dismissed with immediate effect, the dismissal was not in accordance with provisions of his conditions of service, Exhibit D, the collective agreement. The import here is that the dismissal was wrong, unlawful and hence null and void. I indicated earlier that, unlike termination, the dismissal of an employee carries infamy and unflattering opprobrium, and hence deprives the employee his terminal benefits. See J. A. Irem v. Obubra District Counsel and Jombo v. PEFMB (all supra). This infamy and unflattering opprobrium is worse in the banking sector given that it is a sensitive sector. In Andrew Monye v. Ecobank Nigeria Plc unreported Suit No. NIC/LA/06/2010, the judgment of which was delivered on October 6, 2011, this Court held as follows – That the claimant’s employment, an employment in a sensitive sector like the banking sector, was terminated with immediate effect suggests that he must have done something wrong. In Industrial Cartons Ltd v. NUPAPPW [2006] 6 NLLR (Pt. 15) 258 this court held that where the reason given for the termination of en employment is incorrect, the payment of one month’s salary in lieu of notice will be grossly inadequate as compensation. In that case this court on that ground went on to award six month’s salary as due compensation. Section 19(d) of the National Industrial Court (NIC) Act 2006 empowers this court to make an award of compensation or damages in any circumstance contemplated under the Act or any other Act of the National Assembly dealing with any matter that this court has jurisdiction to hear. This case of Andrew Monye v. Ecobank Nigeria Plc simply reinforces my earlier assertion that the dismissal of the claimant by the defendant was wrong, unlawful and hence null and void; and I so find and hold. The claimant is, therefore, entitled to reliefs 1 and 2; and I so hold. Regarding relief 3, Article 4(ii) of Part II (section 1) of Exhibit D makes provision for “Termination after Warning” in respect of misdemeanors/infractions that are not weighty enough to attract summary dismissal; and in Article 4(ii)(d) it provides that “an employee whose services have been terminated under the provisions of this paragraph shall, nevertheless, be entitled to one month’s notice or salary in lieu, in addition to any other terminal benefits that may be due to him”. There is no other provision in Exhibit D that talks of three months’ salary in lieu of notice as the claimant is claiming under relief 3. In, therefore, granting relief 2, the entitlement of the claimant as per relief 3 is only to one month’s salary in lieu of notice, which is N541,642.22 given the averment of the claimant in paragraph 11 of his further witness statement on oath. Even when the claimant exhibit his pay-slips for the months of August 1995, December 2004, January 2009 and April 2009 (see Exhibits I, J, K and L respectively), it was to prove his membership of ASSBIFI, not to prove his last monthly pay. See paragraph 36 of his further witness statement on oath filed on 7th January 2013 but dated 7th January 2012. In all, and for the avoidance of doubt, the claimant’s claims partially succeed and only in the following terms – 1. Reliefs 4, 5 and 6 are deemed abandoned by the claimant and so they are accordingly struck out. 2. It is hereby declared that the claimant’s summary dismissal vide a letter dated June 22, 2010, reference number: HCM/IRSW/24224/2010 and signed by the duo of Tolu Ilori and Babs Ogunleye is wrongful, null and void and of no effect whatsoever. 3. It is hereby ordered that the summary dismissal of the claimant is accordingly changed to termination. 4. It is hereby ordered that the defendant shall pay to the claimant within 30 days of this judgment the sum of N541,642.22 being one month’s salary in lieu of notice as damages. 5. Cost is put at N20,000 only payable by the defendant to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip