Download PDF
By his General Form of Complaint filed on 28th June, 2012 the claimant seek the following reliefs: 1. A declaration that the purported termination of the claimant’s appointment with the defendant for service no longer required as contained in a letter addressed to him dated August 25, 2010 is illegal, null and void. 2. A declaration that the claimant having served the defendant for over 30 years can only be retired in accordance with the provisions of the defendant’s Employee Handbook dated March 2007. 3. A declaration that the claimant having been wrongfully terminated is entitled to all his salaries and allowances from the date of his purported termination of appointment to the date of judgment in this Suit, or when he is validly retired by the defendant. 4. An order for the payment of Six Million, Six Hundred and Seventy Seven Thousand, Four Hundred and Fifty Six Naira, Seven Six Kobo (N6,677,456.76) being one year total emolument of the Plaintiff’s retirement benefit in addition to his pension scheme. 5. General damages for breach of contract, shock and pain suffered from his wrong termination of his appointment. 6. Cost of this Suit. Accompanying the Complaint are claimant’s Statement of Facts, Documents to be relied upon, List of Witnesses and Written Statement on Oath of Claimant’s Witness. In reaction, the defendant filed a Memorandum of Appearance, Statement of Defence, Documents to be relied upon at trial and Defendant’s Witness Statement on Oath filed on 30th October, 2012. The claimant thereafter filed a Reply to the Statement of Defence, List of Documents to be relied upon and additional Witness Statement on Oath filed on 8th November, 2012. The claimant’s case is that he was employed by the defendant on 1st November, 1977 when the defendant was known as Standard Bank of Nigeria Limited from where he rose from the position of a clerical grade to the position of Deputy Manager in 2006. That his appointment was confirmed on the 1st May, 1978 via a letter dated 11th May, 1978. That he served in various capacities in many branches with outstanding performance and had never been queried nor found of any misconduct in the performance and had never been queried nor found of any misconduct in the performance of his duties. That his employment with the defendant is regulated by the terms and conditions of service contained in his letter of employment and the Employee’s Handbook of the defendant dated March, 2007. He also pleaded that he served the defendant conscientiously for over 32 years and was last promoted in 2006 to the rank of Deputy Manager, and had received several long services awards and commendations, but the defendant terminated his appointment for service no longer required contrary to the provisions of the defendant’s Employee Handbook. That by the provisions of the said Handbook any employee who has served up to 30 years can go on voluntary early retirement on his own discretion or on the discretion of the defendant’s management and will be entitled to one year of his total emolument less variable pay, in addition to his pension scheme. He further avers that his termination was wrongful, null and void as it was done without due regard to the provisions of the Employee Handbook which is binding on both parties to this Suit. The claimant pleaded that his employment with the defendant still subsist as it has not been ended according to the terms and conditions of his employment and so he is entitled to all his salaries and allowances from the date of the purported termination of his appointment to the date judgment will be given in this case or when his employment shall be ended according to law. That even the one month salary in lieu of notice has not been paid. That his one year total emolument which the defendant called “new compensation package” for a Deputy Manager Step 2 which is his last level is N6,677,456.76 as contained in a letter addressed to him and posted to his computer mail box dated 25th February, 2008. The claimant finally repeated his reliefs as contained in the Complaint. In its reaction, the defendant admitted paragraphs 1 – 7 of the Statement of Facts. It pleaded that the employment of the claimant was rightly and legally terminated in accordance with the terms of the employment. That the claimant’s benefit was applied to pay the loan he took from the defendant. That the claimant is still owing the defendant over N10,000,000.00 (Ten Million Naira) and this was communicated to the claimant via the defendant’s letter dated 17th September, 2010. That the claimant has two loan accounts 4386010000462 and 4066010001410 with the defendant, his benefit paid was applied to defray these loans to reduce his indebtedness to the defendant. That the claimant is still indebted to the defendant. The defendant finally urged the court to dismiss the case of the claimant. In his reply to the defendant’s Statement of Defence, the claimant pleaded that the loan taken by the claimant from the defendant is regulated by a different agreement having its own tenor and date of maturity. That he has since 2011 paid the loan on account number 4066010001410 under is agreement as it has not expired. Trial in this suit commenced on 28th November, 2012 with the claimant testifying for himself as CW1. He adopted his witness Statement on Oath dated 19th October, 2012 and 8th November, 2012. The claimant’s Witness Statement on Oath was in the same terms as the Statement of Facts and reply to the defendant’s Statement of Defence. Under cross-examination the CW1 admitted that he has two loans with the defendant. That while one has been fully paid the second one is being recovered from his pension as shown in the statement of account. He stated that the defendant can vary the conditions of the loan at any time as well as the tenor which has not been communicated to him. That he was given the loan as a staff not as an external customer. There was no re-examination. The claimant therefore closed his case. The defendant opened its case with Targema Kajo testifying as DW1. The DW1 stated that he is the Area Legal Manager of the defendant. That the claimant is an ex-employee of the defendant and used to collect his pension. He adopted his witness statement on oath sworn on 30/10/2012. The defendant’s witness statement on oath is in all fours with the statement of defence and will not be repeated here. Under cross-examination, the DW1 stated that if a staff serves up to 35 years or 60 years of age he will retire whichever that comes first or voluntary retirement. That the retirement date for voluntary retirement can be set up by the bank from time to time. That the staff handbook provides for voluntary retirement after 30 years of service before he can be compulsorily retired. That if a staff has disciplinary issues he can be retired from service. He stated that the claimant worked with the defendant for over 32 years before his employment was terminated. That he does not know if the claimant is being owed any outstanding salary. There was no re-examination. The defendant therefore closed its case. The court ordered the parties to file their respective Final Written Addresses. The defendant’s final written address is dated 25th January, 2013 but filed on 28th January, 2013 while the claimant’s final written address is dated 18th February, 2013 and filed same date. In his opening argument, Learned Counsel to the defendant referred the court to Section 126 of the Evidence Act pointing out that the claimant’s witness deposition has on it a name different from the claimant and the claimant’s witness adopted the said process. He submitted that since he adopted what was not his deposition, it means that the evidence he adopted is hearsay evidence and so is inadmissible. That the Statement of Facts is not backed by any witness statement on oath of the claimant and so it is incompetent. Learned Counsel for the defendant formulated two issues for determination as follows: 1. Whether it is the mode of bringing a contract of employment to an end under the common law that is challengeable or the consequence of bringing the contract to an end. 2. Whether the claimant who has been receiving his pension from the respondent can maintain this action against the respondent to be entitled to the reliefs he claims. Arguing issue one, Learned Counsel submitted that a contract of employment must come to an end and the coming to end is termination by either party. He submitted that it is the consequences of the mode of bringing the contract of service to an end that is challengeable. That under paragraph 8.12.1 of Exhibit C the defendant reserves the discretion to bring to end the contract of service between the parties with consideration to the years of service. He submitted that the claimant has enjoyed all his benefits and still enjoying his pension from the defendant. He submitted that since the employer under common law master-servant relationship the master has the right to terminate the services of his servant. On issue two, Learned Counsel submitted that the claimant has accepted his termination and is drawing his monthly pension without challenging the mode of termination, therefore, has waived the right to challenge the mode citing Section 169 of Evidence Act, 2011. That the claimant cannot maintain reliefs 4 and reliefs 1, 2 and 3 simultaneously without being in the alternative as contained in paragraph 13 of Statement of Facts. He argued that by virtue of reliefs 4 and 5 of the claimant’s claim he has conceded or acquiesced to the mode of the termination of the contract and hence estopped from claiming or alleging wrongful termination. Counsel submitted that once terminated under master servant relationship, the employment stands terminated whether wrongful or not citing the case of Jirgbah v. U.B.N Plc [2000] FWLR (pt. 28) p. 1790 at p. 1808. He further submitted that this court cannot order reinstatement in the instant case because that will amount to specific performance citing the case of UBN Plc v. Chineyare [2010] 10 NWLR (pt. 1203) p. 453. He submitted that when a contract of employment is terminated, the only remedy to the employee is in damages, citing the case of Bankole v. Broadcasting Corporation [1968] All FWLR (pt. 360) p. 1480. He argued that what is due to the claimant has been paid to him and was applied to reduce his indebtedness to the defendant which fact the claimant never denied. He finally urged the court to dismiss the case of the claimant. Learned Counsel for the claimant formulated two issues for determination as follows: 1. Whether the termination of the appointment of the claimant by the defendant as contained in a letter dated 25th August, 2010 was wrongful, illegal, null and void. 2. If issue one above is answered in the affirmative, that is to say that the termination of the employment of the claimant is illegal, wrongful, null and void is the claimant entitled to all the reliefs contained in paragraph 13 of his statement of facts of the claims. On issue one, Learned Counsel submitted that having regard to the claimant’s letter of employment – Exhibit A and Employee Handbook – Exhibit C the claimant’s employment had not been ended according to the terms and conditions of his service as contained in paragraph 8.10A of the Employee Handbook. He argued that where the employee has served the defendant for 30 years or above he can either retire voluntarily or can be retired by the Management of the defendant in accordance with paragraph 8.12.1 of the Employee Handbook. That paragraph 8.10A of the Employee Handbook does not apply to an employee who had reached the age of 55 years or had served the defendant for up to 30 years or above as such employee can only retire or be retired. He reproduced paragraph 8.12.1 of the Employee Handbook as follows: “The compulsory retirement age for every employee is sixty (60) years or 35 years in service whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or have served up to 30 years at his/her own discretion or at the discretion of management.” Learned Counsel pointed out that the claimant was employed on 1st November, 1977 and was purportedly terminated by a letter dated 25th August, 2010 showing that the claimant served the defendant for over 32 years, therefore could only be retired and not be termination as the said termination is null and void. He referred the court to the cases of Francis Adesegun Kattos vs. Central Bank of Nigeria [1999] 6 NWLR (pt. 607) p. 390, Nigeria Social Insurance Trust Fund Management Board v. Rasheed Kola Adebiyi [1999] 13 NWLR (pt. 633) p. 16 at p. 28. He therefore, urged the court to hold that the termination of the appointment of the claimant was illegal, wrongful, null and void. Arguing issue two, Learned Counsel submitted that if issue one is resolved in favour of the claimant then the court can make the declarations in paragraph 13 (1) and (2) because they have been proved by evidence of the claimant under the law. He cited the case of Nigerian Telecommunication Ltd v. Emmanuel Oshondin [1999] 8 NWLR (pt. 616) p. 528. Learned Counsel argued that the claimant’s termination being null and void his employment still stand as an employee of the defendant but because the court in law cannot reinstate him he is entitled to all his salaries and allowances from the purported date of termination up to the date of judgment when the court will invoke paragraph 8.12.1 of Exhibit C as the only alternative available to the defendant. He pointed out that the one month salary in lieu has not been paid to the claimant. He urged the court to disregard the argument of the defendant’s counsel that the claimant has accepted his termination by drawing his monthly pension, citing the case of Mil. Administrator of Benue State v. Illegede [2001] 9 – 10 SC p. 180. Learned Counsel submitted that the court cannot force an employee upon on employer, therefore, the claimant will be entitled to the said declarations as being the amount he would have earned had he continued with the employment until judgment or when he is validly retired. He referred the court to cases of Prof. Y. Oberedugo v. College of Sc. & Tech. Port Harcourt & Anor. [1991] 4 NWLR (pt. 187) p. 651, Kabelmetal Nig. Ltd v. Gabriel Ativie [2002] 10 NWLR (pt. 775) p. 250, Western Nigeria Deve. Corp. v. Jimoh Abimbola [1960] NMLR 381 at 382, Friday U. Abalogu v. Shell Petroleum Dev. Co. Ltd [1999] 8 NWLR (pt. 613) p. 12 at p. 27. He urged the court to grant the reliefs prayed for the payment of all the claimant’s salaries and allowances from the date of termination, that is, 25th August, 2010 to 31st October, 2012 when he would have retired. He argued that the claimant would have earned the sum of (N6,677,456.76) if he had been properly retired under Exhibit C i.e. paragraph 8.12.1 (a) which is the cost annual total pay. Concerning the claim for general damages, Learned Counsel that such damages in law implies the breach and violation of a legal right, a loss which flows naturally from the defendant’s acts and its quantum need not be pleaded and proved as it is presumed by law. He cited the case of ACME Builders Ltd v. Kaduna State Water Board & Anor [1999] 2 NWLR (pt. 590) p. 288 at p. 305. He finally urged the court to grant the claimant’s prayers. I have carefully considered the processes filed, the argument of counsel on both sides and the authorities cited. The issue for determination in this case is whether the termination of the claimant’s employment was wrongful. The claimant’s employment in this case is regulated by his letter of employment dated 1st November, 1977 and the Employee Handbook, 2007. The claimant’s employment was terminated by virtue of a letter dated 25th August, 2010. The claimant’s contention is that having worked for 32 years for the defendant he can only retire or be retired and not to be terminated by the defendant. That his retirement is contrary to paragraph 8.12.1 of the Employee Handbook. The defendant’s contention is that the defendant under the law has right to terminate the claimant’s employment because it is a master servant relationship. It is important to reproduce relevant paragraphs of the defendant’s Employee Handbook that are germane to the determination of this suit. Paragraph 8.10.A Termination/Resignation: During the probationary period, employment may be terminated by either side giving two weeks’ notice in writing or payment of two weeks basic salary in lieu of notice. After confirmation, employment may be terminated by either side giving the other one-month’s notice or payment of equivalent amount of basic salary in lieu of the required notice period and in addition, a proper handover note must be submitted to the Head of Department, Branch Manager or Business Development Manager. However, officers on AGM grade and above would be required to give three months notice or payment of equivalent amount of basic salary in lieu of the required notice period. In addition, a proper handover note should be submitted to the Head of Department/Branch Manager. Paragraph 8.12.1 Retirement The compulsory retirement age for every employee is sixty (60) years or 35 years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or having served up to 30 years or at his/her. Early retirement benefits: a. One year total emolument less variable pay (i.e. total guaranteed pay including location and leave allowances/holiday travel allowances). This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. However, any applicant who has less than one year to retire normally will have their incentive payments prorated. The relationship between the claimant and the defendant in this case is that of contract of service between master and servant. A contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. The court therefore will not look outside the written or documented contract of service in deciding the rights and obligations of the parties. See Akinfe v. U.B.A Plc [2007] 10 NWLR (pt. 1041) p. 185, Afribank (Nig) Plc v. Osisanya [200] 1 NWLR (pt. 642) p. 592 at p. 616, Amodu v. Amode [1990] 5 NWLR (pt. 150) p. 356, Iwuchukwu v. Nwizu [1994] 7 NWLR (pt. 357) p. 379. It is also trite that where conditions of service exist between an employer and an employee, the provisions contained therein are binding on them. See Dornier Aviations Nig. Ltd. V. Oluwadare [2007] 7 NWLR (pt. 1033) p. 336. Considering the termination of the claimant’s employment, the defendant terminated the claimant’s employment by virtue of a letter dated 25th August, 2010 with immediate effect and offered to pay him one month salary in lieu of notice. The defendant contended that because of the claimant’s indebtedness to it arising from loan given to the claimant it deducted the claimant’s one month’s salary in lieu of notice and all other entitlement from his debt but the claimant is still indebted to the defendant. In my view, the defendant complied with paragraph 8.10.A of the defendant’s Employee Hand when it terminated the claimant’s employment as it issued it took the second option of terminating the claimant’s employment with immediate effect offering to pay him one month’s salary thereof. This no doubt complies with the requirement of the Employee Handbook. The argument of the claimant that having worked for 32 years with the defendant, he can only retire or be retired under paragraph 8.12.1 of the Employee Handbook is misconceived as the said provision did not remove or obliterate the right of the parties to terminate the employment. It only sets retirement age but gives the employees of the defendant right to go on voluntary early retirement after attaining 55 years of age or having served up to 30 years or at his or her own discretion or at the discretion of the defendant. In this case, the defendant refused to exercise its discretion to retire the claimant but utilized its right under paragraph 8.10A of the Employee Handbook to terminate the employment of the claimant. I therefore hold that the termination of the claimant’s employment was valid. Concerning the one month salary in lieu of notice, the defendant contended it utilized it to reduce the claimant’s indebtedness. The claimant under cross-examination admitted that he took two loans but while he has fully repaid one the other is being recovered by the defendant from his pension. In his reply to the statement of defence, the claimant stated that since 2011 he paid the loan on account No. 4386010000462 and is still paying the once on account No. 4066010001410. This supposes that the claimant is still indebted to the defendant. Consequently, the defendant reserves the right to apply the one month’s salary in liquidation of the claimant’s indebtedness to it. Having held that the termination of the claimant’s employment is valid, the claimant is therefore not entitled to reliefs sought in this case. The claimant’s case therefore fails and is hereby dismissed in its entirety. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Presiding Judge