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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 6TH NOVEMBER, 2014 Suit No. NICN/ABJ/198/2012 BETWEEN UHAMBER VANGERBE AMUR CLAIMANT AND FEDERAL MORTGAGE BANK OF DEFENDANT NIGERIA REPRESENTATION J. M. Shishi Esq with Chinedu Igwesi for the Claimant. S. A. Ajayi Esq for the Defendant. JUDGMENT This is a transferred case from the Federal High Court, Abuja. By the Order of Hon. Justice G. O. Kolawole, to the National Industrial Court of Nigeria by an Order granted on the 27th June, 2012. The matter was commenced in this court by the claimant filing a complaint dated and filed by 9th November, 2012 wherein the claimant claims against the defendant as follows:- a. A Declaration that the termination of the claimant’s appointment vide a letter dated 7th January, 2010 is illegal, null and void and of no effect. b. An Order reinstating the claimant in the Respondent’s employment with full entitlement and benefits including the possession and use of his official vehicle Toyota Corolla GL.1 with registration No. CL 936 RBC with effect from 7th of January, 2010 when his appointment was purportedly terminated. In the Alternative:- a. The payment of the sum of N4,352,500 (Four Million Three Hundred and Fifty-two Thousand Naira) Only as the claimant’s terminal benefit by 2018 when he would be due for voluntary retirement in line with the Respondent’s condition of service. b. The payment of the sum of N2,648,233.24 (Two Million Six Hundred and Forty-eight Thousand Two Hundred and Thirty-three Naira Twenty-four Kobo) Only as the claimant’s accrued unpaid pension from his old employment with the Respondent between 1987 and 1993. c. The payment of the sum of N2,247,792 (Two Million Two Hundred and Forty Seven Thousand Seven Hundred and Ninety Two Naira) Only as the claimant’s 6 months salary by virtue of the letter dated 7th January, 2010. d. The payment of the sum of N6,400,000 (Six Million Four Hundred Thousand Naira) Only as passage allowance for 8 years covering the period between 2010 and 2018 when the claimant would have been due for retirement from the Respondent’s employment. e. The payment of the sum of N35,964,672 (Thirty-five Million Nine Hundred and Sixty-four Thousand Six Hundred and Seventy-two Naira) Only being the claimant’s salary and entertainment allowance for 8 years covering the period between 2010 and 2018 when the claimant would have been due for retirement from the Respondent’s employment. f. The payment of the sum of N20,000,000 (Twenty Million Naira) Only as general damages. g. 10% interest of the Judgment sum from the date of Judgment until final liquidation. Accompanying the complaints are the amended claimant’s statement of claim, list of witnesses, list of documents to be relied upon at the trial and the witness statement on Oath. The defendant entered a Memorandum of Conditional appearance dated and filed on 18th February, 2013, witness statement on Oath, list of documents to be relied upon, list of witnesses and statement of defence all deemed properly filed and served by the Order of the court granted on 20th February, 2013. The matter went on trial, the claimant gave evidence and was cross-examined wherein the claimant also tendered Exhibits PWA – PWK in evidence. The defendant called in the person of Mr. Olayinka Williams an employee of the defendant to testify for the defendant. The trial was concluded and parties adopted their final written addresses on the 16th July, 2014. Before the adoption of the final written addresses of parties, the defendant brought a motion on Notice dated 26th November, 2013 and filed on 27th November, 2013 seeking leave of court to amend her statement of defence to include her counter-claim. The application was granted by the court on the 18th February, 2014. Thereafter, matter was adjourned for Judgment to 6th November, 2014. In adopting the final address the defendant raised four issues for determination in the case to wit:- a. Whether or not the Respondent/Counter-Claimant rightly terminated the appointment of the claimant. b. Whether the claimant was deprived of his entitlements having not met the pre-conditions for payment. c. Whether or not the claimant is entitled to the claims of wages for work not done, d. Whether the Respondent/Counter-Claimant is entitled to the reliefs sought in her counter-claim. Issue One Whether or not the Respondent/Counter-Claimant rightly terminated the appointment of the claimant. To properly resolve issue 1, the defendant submitted that it is of paramount importance to examine the legal relationship or the legal character or nature of the contract of employment that existed between the claimant and the respondent and not ascribe the meaning given to it by the individuals but rather that envisaged by the law. The defendant said that the Claimant has argued that his employment is governed by statute, but in vehemently disagreeing with the claimant’s assertion that his employment is protected by statute, but that they are bold to say that Section 10 (2) (3) FEDERAL MORTGATE BANK OF NIGERIA Act CAP F16, LFN, 2004 is apt on the issue as it relates to the staff of the Respondent. The section is reproduced for ease of reference thus: (2) The Board shall appoint such number of officers and the other persons as employees of the mortgage Bank as may appear expedient and necessary to the board for the proper and efficient conduct of the business and functions of the Mortgage Bank. (3) The terms and conditions of service (including remuneration, allowance and pension benefits) of the secretary to the Mortgage Bank and other employees of the Mortgage Bank shall be as may be determined by the Board. Flowing from the above therefore, the defendant submitted that it is the staff condition of service of the respondent as determined by the board that regulates the activities of the respondent vis a vis its staff as may be determined by the Respondent’s Board from time to time. See also Sections 7 and 8(b) (d) of FMBN Act CAP F16, LFN, 2004. And see also UNILAG VS. ADEGBITE (1933) 5 SC at 149, INTERNATIONAL DRILLING LTD VS. AJIJOLA [1976] 2 SCN 5. In determining the above issue as to whether the employment of staff of the Respondent is guided by statute or by the staff condition of service, the Supreme Court in the case of FMBN VS. OLLOH (2002) 4 SCNJ 423 AT 429 held inter alia that: ...although the Appellant was a creation of an Act of the National Assembly and therefore at best considered to be the property of the federal government with the sole aim of providing financial assistance to Nigerian individuals desiring to acquire houses of their own and granting of long-term facilities to mortgage institutions to grant comparable facilities to Nigerian individuals as per the preamble of the Act, the bank is no more than a business establishment given functions to perform; but neither of these functions nor the bank itself has any connection with the affairs or the running of the federal government. The defendant then submitted that it is trite that the mere fact that a body is created by an Act or Statute does not remove the clout of master-servant relationship from the domain of its work force and so much as to make it an employment protected by statute. The defendant referred to the cases of Karibi Whyte JSC as he then was in FAKUADE VS. OAUTH (1993) 5 NWLR (PT. 291) 47 AT 62-63. Then further submitted that it is obvious from the provisions of the FMBN Act and also the FMBN Staff condition of service that, there is no any statutory pre-condition envisaged as to either the appointment or termination of a staff’s contract of service. The defendant submitted further looking at the entire gamut of the FMBN Act, it is no where in the Act intended that the claimant’s employment be clothed with statutory flavor and in other words it did not fall under the employment protected by statute. It will therefore not be out of place to state that the employment of the claimant which is governed by Exhibit PW U is an ordinary master and servant relationship with a written contract and not subject to any statutory pre-condition or impositions whatsoever. And therefore, in a master-servant employment like the one leading to the instant suit, what the court should look into is the terms of the contract of service and in this particular case, Exhibit PW “A” and “U’,. He therefore submit that the relationship between the respondent and the claimant is nothing but an ordinary master/servant relationship which in essence is an ordinary contract of employment. See: OGBAJI V. AREWA TEXTILE PLC (2000) 11 NWLR (PT. 678) 322 at 336 and NITEL V. JATTAU (1996) 1 NWLR (PT. 425) 392 at 407. The defendant went further to submit that having painstakingly addressed the issue as regards the Legal nature of the relationship between the claimant and the Respondent, it behooves on us to delve into the issue of whether the claimant’s employment was rightly or wrongly terminated, recourse being given to the staff condition of service. The following Sections 90.23, 90.24, 90.26 and 90.33 of the Staff Condition of Service are the fulcrum upon which the issue of the wrongfulness or otherwise of the Claimant’s termination is rested were referred to. The said sections state as follows: S.90.23 Either party to a contract of employment may terminate the contract on the expiration of notice given by one party to the other. S.90.24 Determination of contract of employment or resignation from confirmed staff shall require three months notice from senior and management staff and one month notice from junior staff. S. 90.26 The party that fails to give formal written notices as aforesaid will pay the other a compensation equal to the pay for the period of notice in lieu thereof. S. 90.33 FMBN reserves the right to terminate the appointment of any employee whose services are no longer required, due to changes in operating procedure or due to decline in activity for whatever reason. That flowing from the above, it is pertinent to determine whether the respondent acted within the scope of the above cited sections of the Staff condition of service or not. The defendant argued that the claimant’s appointment was terminated vide EXHIBIT PW H where in it was clearly stated that the Board at its 164th meeting has approved the termination of the claimant’s employment on the ground that his services are no longer needed. That the board clearly exercised the termination based on the power granted it by the FMBN Act, CAP F16, LFN, 2004. See Sections 7 and 8. Flowing from this power is Section 90.33 of the Staff Condition of service which empowers the Bank to terminate the services of any staff it no longer requires. That in line with decided cases, that even though in this case, the Respondent gave her reason for terminating the claimant’s employment (that his services are no longer required), in a master servant relationship or a contract of service, it is never a requisite condition that an employer must state the reason for the termination of the employment of its employee. Relying on the case of NNPC .V. IDONIBOYE-OBU (1996) 1 NWLR (PT. 427) 655 at 671-672 per Katsina- Alu JCA (as he then was); …this means that an employer is under no obligation to give reasons for terminating the appointment of his employee, where he so elects not to state reasons for his action, it is no business of the Court to embark on a voyage of discovery and import reasons or motives for the termination of the employment of the employee... See also NNPC V. IDONIBOYE-OBU (supra), TAIWO v. KINGSWAY STORES LTD (1950) 19 NLR 122 at 123, AMODU V. AMODU (1990) 5 NWLR (Pt. 150) 256. The defendant further submitted that an employer has the common law right to hire and fire an employee of his at anytime. All that is required is the giving of adequate notice or salary in lieu of the notice as may be stated by the contract of service. The court in ARINZE V. FIRST BANK OF (NIG.) LTD (2000) 1 NWLR (Pt. 639) 78 held among others that:- It is well settled that an employer who hires an employee has the corresponding right to fire him at any time and in so far as that is done within the four walls of the contract of service, the employee has no redress in law. Equally, an employee has the corresponding right to terminate or determine at any time the contract of employment between him and his employer and in so far as that is done within the terms of the contract of employment, the employer has no remedy in law. See also NIGERIAN AIRWAYS LTD V. AHMADU (1991) 6 NWLR (Pt. 198)492 at 499. The defendant also submitted that looking at Section 90. 24 (supra) the claimant was entitled to 3 months salary in lieu of the notice. However in Exhibit PW “H”, the respondent stated that 6 months’ salary will be paid to him in lieu of the 3 months notice. That on the authority of KATTO VS CBN (1999) 5 SCNJ 1, 23; (1999) 6 NWLR (Pt. 607) 390 that Exhibit PW “H” which stated that 6 months’ salary will be paid by the respondent to the claimant, effectively covers the 3 months salary in lieu of notice as stated in Exhibit “U”. See Also AKUMECHIEL V. B.C.C. LTD (1997) 1 NWLR(Pt. 484) 695 at 703. The defendant referred to employment terms in pari material with section 90.24 above, where the apex court per Fatayi-Williams in AKINFOWOSE V. MOBIL OIL NIG. LTD (1969) 6. N.S.C.C 376 at 380 held thus: It is manifest from the agreement Exhibit A that either party could terminate it for no cause whatsoever on giving 30 days’ notice. That being the case, it seems to us that the damages which could be considered to be the natural and probable consequence of a breach of agreement are those resulting from failure to give the required 30 days’ notice. We are in agreement with Mr. Molajo that that cannot be more than the plaintiff could have earned in 30 days. That it is therefore our submission that assuming but not conceding that the Claimant was not given the required notice of 3 months as envisaged by the Staff Condition of service, all that the claimant is entitled to from the decision in AKINFOWOSE V. MOBIL OIL NIG. LTD (Supra) is only the 3 months salary as against the 6 months stated in the letter. Howbeit the option of payment of salary in lieu of the notice was made available. Counsel further submitted that the reason for the termination is well within the purview of the condition of service. See CHUKWUMAH VS SHELL PETROLEUM DEV. CO., SOGBETAN VS. STIRLING PRODUCTS NIGERIA LTD [1973] NCLR 323. The defendant argued that the claimant avers in paragraph 20 of his statement of claim and paragraph 20 of his witness statement on oath that there was no board in place at the time of the termination of his employment. No evidence was led to that effect. It is trite law that where evidence is not led in support of an averment, that averment is deemed abandoned. See HYACINTH N. NZERIBE V. DAVE ENGINEERING CO. LTD (1994) 9 S.C.N.J 161., AJUWON & ORS V. FADELE AKANNI & ORS (1993) 12 S.C.N.J 32., MV MAGNUSSON V. K. KOIKI & ORS (1993) 12 S.C.N.J 114 A and AKPAN V. R.T.Q.I CHURCH (2001) 15 NWLR (Pt. 736) 328 at 349-450: While urging this Honourable court to discountenance the Claimant’s claim of wrongful termination of his employment, we will also like to state that the suit in its entirety is malicious. Evidence before the court shows that the claimant requested that the official car still in his custody be used as part of his entitlement/benefits. It was upon the refusal of the Bank to hand over the car to him on the terms requested that he rushed to court challenging the termination of his employment. The Claimant in paragraph 27 of his witness statement on oath stated that he wrote a letter dated 18th January, 2010 requesting the Respondent to allow him purchase his official car as part of his entitlement/benefits. But under cross- examination, the claimant said he never at any point accepted the termination of his employment. The defendant submitted therefore that where there is a conflicting statement of the claimant with his evidence in court, the court is bound to reject both statements as they .have no probative value. See OBADE V. STATE (1991) 6 NWLR (Pt. 198)435 at 447-448. In arguing issue two Whether the claimant was deprived of his entitlements having not met the pre-condition for payment. The defendant submitted on issue 2, referring to Section 93 1 of staff conditions of service is apt on this and this is reproduced hereunder for sake of clarity An employee leaving the services of the FMBN must surrender his identity card, and all other properties of the FMBN in his possession to the Head of Unit, Zonal Coordinator or state controller as the case maybe before his entitlements are paid… The defendant argued that the use of the word “MUST” shows that it is a mandatory provision which is a pre condition for the payment of any entitlement. That this provision is clear enough and that same was also reiterated in Exhibit PW H. The defendant that it is an incontrovertible fact that the claimant never complied with the provision of Section 93.1 on his own part. During cross examination, the claimant alluded to the fact that the official car allocated to the Head, Group policing is still in his possession even after same was demanded from him. The defendant submitted that the question begging for an answer is whether non compliance with the precondition for the payment of the Claimant’s entitlement is fatal to his claim for the payment of his entitlements. It is trite that where a law prescribes a condition for doing an act the conditions must be adhered to strictly. Niki Tobi JCA (as then was) in the case of AINA VS. JINADU (1992) 4 NWLR (PT. 233) 91 at 109 put it succinctly, thus:- If a law requires the fulfillment of a precondition before a particular act or action is to be done, non-fulfillment of the precondition will be prejudicial to the party in default. The defendant submitted that payment of the 3month salary in lieu and the accrued pension benefits of the claimant up to the time of termination of his employment is subjected by the conditions of service to the return of all properties of the Bank (especially the official car that is with the claimant) which he has continually and willfully kept for himself even after request to return same by the respondent. On issue three Whether the claimant is entitled to the claims of wages for work not done. The defendant argued that where a contract of service is rightly terminated, all that the employee can claim is the amount due at the time of termination of employment. The Supreme Court in KATTO V. CBN (Supra) when called upon to determine a similar situation held that: In ordinary contracts of employment where the terms provided for one month’s notice before termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of the notice and any other legitimate entitlements due to him at the time the employment was brought to an end. Contending further the defendant submitted that assuming but not conceding. that the claimant’s employment was wrongfully brought to an end, what he is entitled to is only damages. And the Court went further to state that such damages are only those due to him at the time of such action. ILODIBIA V. N.C.C LTD (1997) 7 NWLR (Pt. 512) 174 at 202, CHUKWUMAH V. SHELL PETROLEUM DEVELOPMENT CO. LTD (1991) 4 NWLR (Pt. 289) 512, OLANIFIMIHAN V. NOVA LAY- TECH LTD (1998) 4 NWLR (Pt. 547) 608 at 623. The defendant argued that the granting of the alternative claims of the claimant same will amount to a reinstatement which will amount to foisting a willing employee on an unwilling employer. The Courts are enjoined where there is a purported termination of contract of service not to grant reinstatement or specific performance. Continuing the defendant further submitted whether an employee whose appointment has been determined is entitled to future wages covering periods he never worked for? The Court in the determination of this question held that even a wrongfully dismissed employee is not entitled to such a relief. A servant who has been unlawfully dismissed cannot claim his wages for services he never rendered” per Onu J.C.A in C.C.B (Nig) LTD V. NWANKWO (1993) 4 NWLR (Pt. 286) 159 at 170. See also OLATUNBOSUN V. N.LS.E.R (1988) 3 NWLR (Pt. 80) 25. That granting the claimants’ claim for payment of work not done will technically amount to deviation from the laid down principles of law. The court is urged to dismiss this head of claim as same is based on malicious intent by the claimant. The defendant arguing issue four Whether the Respondent/Counter-claimant is entitled to the reliefs in her Counter-claim. Submitted that a counter-claim is an independent action which must be proved by evidence and which should also be defended if the Respondent to the counter-claim so desires to See OYAGBOLA V. ESSO W.A. INCORPORATED (1966) 1ALL NLR 170, HASSAN V. REG. TRUSTEES, BAPTIST CONVENTION (1993) 7 NWLR (Pt. 308) 679 at 690. The Court of Appeal also held per Mukhtar JCA (as he then was) in EY1BAGBE V. EYIBAGBE (1996) 1 NWLR (Pt. 4250) 408 at 416 thus: The position of a counter-claim in law is that it is by its self a claim and when it is not defended, the allegation in the counter-claim remains unchallenged and uncontested and in that circumstances such allegation can be regarded as admitted. See also N.H.D.S. VS. MUMUNI (1977) 2 S.C 57. Suffice it to state that a Plaintiff/Defendant to a counter claim who intends to defend same needs to file a reply to the counter-claim. Failure to file a defence or where there is no defense at all is fatal to the defendant’s case. Therefore the Defendant/Counter Claimant shall be placing reliance on the Court of Appeal decision per lbiyeye, JCA in TOTAL NIGERIA PLC v. MOKEH(2002) 9 NWLR (Pt. 773) 492 at 512 where the court held as follows: It is settled that a counter-claim is in the same position as action being itself a cross-action and subject to the same rules of court as regards pleadings. Ordinarily therefore, the plaintiff having failed to file a defense to a counter-claim, the defendant on moving the trial Court would assume that the plaintiff has no defence and enter judgment for the defendant/counter- claimant. See ORAGBADE & ORS V. ONOTIJU (1962) 1 S.C.N.L.R. 70; OGBONNA V. THE ATTORNEY-GENERAL OF IMO STATE (1992) 1 NWLR (Pt. 220) 647. The court is urged to enter judgment for the Respondent/Counter-claimant as per the counter- claim. The defendant contended very strongly that in addition to the above, reference to paragraphs 15, 16, 17, 26, 27 and 28 of the Claimant/Respondent’s Amended Statement of claim dated 9th November, 2012 shows clearly that the Claimant/Respondent admitted to the fact that he is in the possession of the said Toyota Corolla and he further admitted upon cross examination that the car is still in his possession. It is trite sir that facts admitted need no proof. Therefore defendant placed heavy reliance on the said admission by the Claimant/Respondent. Niki Tobi, JCA (as he then was) in AKIBU 7 ORS v. ODUTAN & Ors (1992) 2 NWLR (Pt. 222) 210 at 226 held thus:- The law is elementary that facts admitted need not be proved, as proof presupposes disputed facts, and so where facts are not in dispute the parties have not joined issues, which made proof unnecessary. See also: BENDEL PILGRIMS WELFARE BOARD V. IRAWO (1995) 1 NWLR (Pt.369) 118 at 124. EGBUNA V. EGBUNA (1989) 2 NWLR (Pt. 106) 777, ITA & Anor V. EKPEYONG & Anor (2001) 1 NWLR (Pt.695) 587 at 620. See also: 5. 123 OF THE EVIDENCE ACT. That the Respondent/Counter-claimant in line with the argument canvassed above is entitled to the reliefs sought, and urged the court to so hold. In conclusion, the defendant urged this Honourable Court, relying on the authorities and arguments canvassed above, to dismiss the entire claim of the claimant as same is baseless, malicious and an afterthought which ought not to come before the court in the first place and urged the court to enter Judgment for the Respondent/Counter-claimant based on her counter-claim. For the claimant the issues for determination raised are as follows:- 1. Whether or not the claimant’s employment is regulated by Statutes. 2. Whether or not the claimant’s employment was wrongfully terminated. 3. Whether or not the claimant is entitled to the reliefs sought. 4. Whether or not the Respondent proved its counter claim. Issue One Whether or not the claimant’s employment is regulated by Statutes. The claimant submitted that the employment and termination of the claimant’s services with the Respondent is regulated by the Federal Mortgage Bank of Nigeria Act Cap F.16 Laws of the Federation of Nigeria 2004 and the Federal Mortgage Bank of Nigeria Staff Conditions of Service made pursuant to Section 8(b) of the said Act. The provisions for engagement of the services of the claimant by the Respondent are clearly contained in Articles 8 paragraph 8.1 and 8.2 of the said FMBN staff conditions of service. Thus, Article 8 para. 8.2 particularly provides as follows: 8.2 All employees engaged by the FMBN shall accept their offer of employment in writing. The offer and acceptance of employment thus becomes a binding contractual agreement, giving FMBN the right to full) direct and assign the staff member to defined responsibilities and duties. It also entitles the staff to all the benefits, emoluments and perquisites accruing from such employment in accordance with FMBN‘s terms and conditions of service . The Claimant submitted that the employment of the claimant vide (Exhibits PW A & PW B) is regulated by the Respondent’s conditions of service. The determination of the employment of the claimant by the Respondent is also regulated by the Respondent’s staff conditions of service (Art. 90). Article 90.24 specifically provides that: Determination of contract of employment or resignation from confirmed staff shall require three month notice from Senior and Management Staff and one month notice from Junior Staff Having established that the claimant is an employee of the Respondent, and that his service is regulated by the Respondent’s staff conditions of service, which derives from the provisions of S.8(b) of the FMBN Act (Supra) it suffices to say that, the employment of the claimant in this matter has statutory flavour. The Court held in the case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 SC as follows: An employment is said to have a statutory flavour when the appointment and termination is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, it invests the employee with a legal status higher than the ordinary one of master and servant. I fence, such an employment is said to enjoy statutory flavour. See also the case of Fakuade v. O.A.U.T.H (1993) 5 NWLR (Pt 291) 47 SC where the court held that; A contract of employment with statutory flavour is one where the condition for appointment or the determination of such employment are governed by a prescribed conditions in the enabling statute so that a valid determination of appointment is predicated upon the satisfaction of the statutory provisions (underlining mine) for emphasis. Also in the case of CBN v. Igwillo (2012) 1 NILR, P.1 at 3 the Supreme Court held as follows: An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. The Claimant submitted that the claimant had no input into the Staff Conditions of Service of the Respondent under which he was employed and his appointment purportedly terminated. The conditions for his appointment and determination of his employment are governed by the pre determined conditions of the FMBN Act and the consequent conditions of service. The Respondent’s counsel’s submissions in paragraphs 4.1.3, 4.1.6, 4.1.7, 4.1.10, 4.1.13, 4.1.14 and 4.1.16 of its final address support our submission that the contract between the Claimant and the Respondent is regulated by pre-determined conditions that leave the parties without any option than to follow those conditions as stipulated in the FMBN Staff Conditions of Service (Exhibit U) in determining the contract. The submission of the Respondent counsel in paragraph 4.1.4 relying on the Supreme Court case of FMBN V. OLLOH (2002) 8 MJSC 82 is misconceived and irrelevant to this matter. First and foremost, the dispute between the parties in that case was that of a bank and its customer; specifically a loan/mortgage transaction. Secondly, that case was based on the 1979 Constitution of Nigeria and the repealed Federal Mortgage Bank of Nigeria Act (Cap 138) Laws of the Federation of Nigeria 1990 and the repealed Federal Mortgage Bank of Nigeria Decree No. 82 of 1993. Thirdly, the only issue in that case was whether or not the State High Court had jurisdiction to entertain the action. The Claimant submitted with that the claimant’s case is totally different from Olloh’s case in that, this case is an Employer/Employee dispute based on the FMBN Act 1993 (Cap. F.16) LFN 2004 and the Staff Conditions of Service made there under, as well as the 1999 Constitution of Nigeria as amended and the National Industrial Court Act. Finally jurisdiction is not in issue in the present case. He urged the court to discountenance the decision in the case of FMBN v. Olloh and all the other cases cited by the Respondent’s counsel to show that the employment of the claimant enjoys no statutory flavour as they are misconceived, misleading and inapplicable in the instant case. He urged the court to resolve this issue in favour of the claimant by holding that his employment has statutory flavour. Issue two Whether or not the Claimant’s employment was wrongfully terminated. On this issue the claimant submitted that in 2010, the Respondent had no proper Board to approve the termination of the claimant’s appointment. By Section 2 of the FMBN Act 1993, the Board is composed of 9 members, made up of the Chairman, the Managing Director, 4 Non-Executive Directors and 3 Executive Directors. The Board that approved the termination of appointment of the claimant had the Chairman, the Managing Director, One Non-Executive Director and Five Executive Directors (Exhibit PW H) against the provision of Section 2 of FMBN Act 1993. This is illegal. The termination of employment of the claimant is generally regulated by Article 90 of the Respondent’s staff conditions of service. Art. 90.24 specifically provides as follows: Determination of contract of employment or resignation from confirmed staff shall require three months notice for Senior and Management Staff and one month notice for Junior Staff. The claimant submitted that the claimant is a senior staff of the Respondent and required 3months to have his employment terminated under the Article. The Respondent unfortunately did not give the required notice in its letter of termination of the claimant appointment (Exhibit PW H). That the Respondent during the hearing of the matter attempted to allege that the claimant’s appointment was terminated vide Exhibit PW H on account of redundancy. That this cannot be the case because Exhibit PW H did not comply with the provisions of Art. 90.37 of FMBN conditions of service which provides for the procedure for terminating the Respondent’s employment on account of redundancy. Art. 90.37 provides specifically as follows:- An employee whose appointment is terminated because of redundancy, shall receive the following: 90.37.1 month notice in the case of junior staff and three months notice in the case of senior staff at FMBN’s option, one month basic salary in lieu of such notice; in the case of Junior staff or three months basic salary in lieu of notice for senior and management staff. The claimant submitted that it is clear from Article 90 of the Respondent’s staff conditions of service that for whatever reason, the termination of the employment of the claimant statutorily requires 3rnonths notice or salary in lieu thereof He submit the payment of salary in lieu of notice cannot be deferred to a later date as it takes the place of notice and shall be paid at the time. the letter was issued. See Oyelnde v. Central Bank of Nigeria (1977) 4 CCHCJ 685. He submitted further that, the termination letter did not state that three months salary was to be paid to the claimant in lieu of notice and no salary was paid to him at the time the letter was issued. The letter of termination, Exhibit PW 1-1 is even at variance with this statutory provision. Exhibit PW I-I is stated to be based on Exhibit PW F the performance appraisal by which the claimant scored above 90% and which DW1 described during cross examination as encouraging. In Idoniboye-Obu v. NNPC (2003) 4 MJSC page 150, para C-D the Supreme Court held that; A servant who claims that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bed rock of his case... See also Okormu Oil Palm Co. Ltd v. Iserhienrhian (2001) 6 NWLR (Pt. 710) 660; and Katto V. Central Bank of Nigeria (1999,) 6NWLR (ri1 607) 390 (405. The Claimant pleaded and proved that his appointment was terminated by Exhibit PW H without notice and against the statutory provisions of the Respondent’s conditions of service. He submitted that, being an employment with statutory flavour, the Respondent has no discretion as to the procedure she would adopt to terminate the Claimant’s appointment. He steted further that it is not provided in Article 90 or any other Article of the Respondent’s staff conditions of service that she can terminate the employment of the claimant without notice and arbitrarily pay him 6months salary as the Respondent purports to do by Exhibit PW H. He submitted further that, the attempt by the Respondent to rely on paragraph 90.33 of Exhibit U, (the Staff Conditions of Service) to justify the termination of the employment of the claimant does not hold water. This is because it is clear from paragraph 90.33 that termination of appointment under that paragraph for “services no longer required” must be: (i) due to changes in operating procedure or (ii) due to decline in activity for whatever reason. (iii) due to decline in activity for whatever reason. Claimant submitted that the Respondent produced no evidence in the court to show changes in its operating procedure or a decline in its activity for whatever reason to justify its reliance on paragraph 90.33 to terminate the appointment of the Claimant. The phrase “for whatever reason” is attached to condition (ii) in paragraph 90.33 and is not standing on its own to give the Respondent sweeping powers to terminate appointments of their staff for whatever reason, not associated with decline in its activity. The claimant argued that none of the two conditions in paragraph 90.33 was shown in the letter of termination nor in the pleadings or evidence or address of the Respondent to be present. The Respondent is rather fishing for the reason for the termination of the Claimant’s appointment. The letter of termination is making references to performance appraisal which the claimant scored over 90% and services no longer required without the presence of the conditions precedent under paragraph 90.33. The evidence of DW1 under cross examination indicates that the claimant’s appointment was terminated because of redundancy, which cannot be the case because the procedure for terminating appointment due to redundancy provided in paragraph 90.37 of Exhibit ‘U’ was not followed. Finally, the claimant submitted that, being a public servant, the claimant does not hold his office at the pleasure of the Respondent to terminate him for services no longer required without observing the provisions of paragraph 90.33 of the Respondent’s Conditions of Service. See CBN V. Ugwillo (2012) 1 NILR1 at Pg. 4. He therefore urged the court to hold that, the arbitrary termination of the appointment of the claimant by a letter dated 71h January 2010, (Exhibit PW H) by the Respondent, is illegal, null and void. On issue three Whether or not the Claimant is entitled to the reliefs sought. From the foregoing, the claimant has shown that his employment which is regulated by statutes was wrongfully terminated and thus, he is entitled to the reliefs sought in his complaint before this Honourable Court. He further submitted that, having proved by Exhibit PW F that the claimant’s performance is excellent and that his employment has statutory flavour, he urged the honourable court to grant reliefs (a) and (b) by reinstating the claimant in his employment with full benefits with effect from 7th January 2010 when his appointment was terminated, illegally The Supreme Court held in the case of CBN V. Igwillo (supra) at page 4 as follows:- Where an employee‘s service is protected by statute and his employment is wrongfully terminated, he would be entitled to reinstatement in his office and in addition, damages representing his salaries during the period of his purported dismissal. The law is indeed well settled that where an employee ‘s service is protected by statute and his employment is wrongly terminated, he would be entitled to reinstatement to his office and in addition, damages representing his salaries during the period of his purported removal. (P.21; Pants. C-D, & P.27, Para. E,) He therefore urged this Honourable Court to reinstate the claimant in compliance with the authority of CBN V. Igwillo (Supra) with full benefits, with effect from 7th January 201 0 when his appointment was purportedly terminated by the Respondent vide Exhibit PW H, or in the alternative grant him the monitory reliefs as compensation for the illegal termination of his appointment. Finally on issue four Whether or not the Respondent proved its counter claim. On the counter claim, claimant submitted that it was introduced after the Respondent testified and closed its case without additional witness’s statement on oath or evidence. Claimant submitted that the counter claim has no supporting evidence and is therefore legally deemed abandoned. That paragraph 4 of the counter claim states as follows: The Respondent avers that the absence of the official car has caused untold hardship and further paralyzed activities at policy and Strategy Department. The above averment on which the Respondent’s counter claim is based has no evidence to back it and is deemed abandoned, he urged this court to hold so. The claimant submitted that the Respondent has failed to prove its counter claim and urged the court to hold so and dismiss the said counter-claim for lacking merits and proof. In conclusion, claimant urged this Honourable Court to grant the reliefs sought by the Claimant in this suit having shown that his employment with statutory flavour was wrongfully terminated. In the Respondent/Counter-claimant’s reply on point of law to the said claimant final written address, the respondent urged the court to discountenance the argument canvassed by the claimant/respondent in his final written address and to dismiss his claim before this court, that the claimant/respondent has failed to prove the essential particulars of his case. It is trite that he who asserts must prove see OBIAZIKWOR V OBIAZIWOR (2007) ALL FWLR (PT. 371) 1602 at 1618, UMEANIA V EMODI (1996) 2 NWLR (PT. 430) 348. We submit that from the entire gamut of evidence placed before this Honourable Court, the Claimant/Respondent has nothing before the court to prove that his employment was covered with statutory flavour. The claimant/respondent in page 4 of his final written address stated that his employment is regulated by the respondent/counter-claimant’s condition of service and thus is covered with statutory flavour. Counsel submitted that this argument is erroneous and misconceived. Black’s Law Dictionary, 8 edition at page 1451 defines Statutory as:- ….. legislatively created …….. It also at page 1448 defines Statute as:- A law passed by a legislative body, specific legislation enacted by any lawmaking body, including legislatures, administrative boards, and municipal court’s. (emphasis ours). The defendant/counter-claimant then submitted that a Staff Condition of Service cannot be elevated to the status of a statute. Condition of Service (sic) employment is “a qualification or circumstance required for obtaining or keeping a job”. See Black’s Law at page 314. They therefore urged the court to dismiss the argument and prayers of the claimant/respondent and enter Judgment for the respondent/counter-claimant as regards her undefended and admitted counter-claim. Having considered the submissions of the parties and authorities cited, the issues for the court to determine are:- 1. Whether the claimant’s employment is clothed with statutory flavour. 2. Whether the claimant employment was lawfully, terminated. 3. Whether the claimant is entitled to the damages. 4. Whether the defendant counter-claimant is entitled to its claim. The claimant was a former employee of the defendant. The F.M.B.N Rules governing the relationship between the claimant and the defendant are the defendant staff conditions of service and Act establishing the defendant, the Federal Mortgage Bank of Nigeria Act CAP F16 LFN and his letter of employment. The claimant appointment was terminated by the defendant b a letter dated 7th January, 2010. The Federal Mortgage Bank of Nigeria is a creation of statute created by Cap F.16 LFN, it is a government agency. Section 10 (2) (3) of the Federal Mortgage Bank of Nigeria is hereby reproduced is very relevant in determining the issue as to whether the claimant’s employment enjoys statutory flavour. (2) The Board shall appoint such number of officers and the other persons as employees of the mortgage Bank as may appear expedient and necessary to the board for the proper and efficient conduct of the business and functions of the Mortgage Bank. (3) The terms and conditions of service (including remuneration, allowance and pension benefits) of the secretary to the Mortgage Bank and other employees of the Mortgage Bank shall be as may be determined by the Board. Going by this Section the defendant is given the power to determine the remuneration, tenure of office and conditions its staff. The text of statutory flavour in a contract of service must rest on the link between the contract of service and the enabling regulations, provisions or subsidiary regulations or conditions of service made pursuant to the enabling provisions. In other words, before an employment can be said to have statutory flavour, the statute establishing the organization must expressly makes it so, otherwise the employment will be treated on the basis of common law principle of Master and Servant. It cannot be matter of inference. The conditions must be expressly set out in the statute or regulations under the subsidiary regulations in such a situation the regulations or conditions of service must commence with the provision of the enabling statute which is not the case at hand. The claimant’s contention that his employment and termination from the services of the defendant counter-claimant is regulated by the Federal Mortgage Bank of Nigeria Act Cap F.16 LFN and the Federal Mortgage Bank of Nigeria Staff Conditions of Service, is correct. Would the fact that the defendant is a creature of statute and a Federal Government body give the employment of the claimant a statutory flavour? He answered in the negative. There is no where the condition of service is traceable to the statutory provision. The conditions of service was not made pursuant to the Section 10 (2) (3) of the Act. It is therefore, a misconception to hold that any officer employed by a statutory body enjoys an appointment with a statutory flavour. This is a purely Master and Servant relationship which is devoid of statutory of flavour. It is therefore my view that the claimant’s employment does not enjoy statutory flavour, it must therefore be regarded as mere master and servant relationship. The next issue to tackle is whether the claimant employment was lawfully terminated. The Rules governing the relationship between the claimant and the defendant are the letter of appointment, Exhibit PWA, the Federal Mortgage Bank of Nigeria conditions of service Exhibit PWU and the Act establishing the Bank. The court will not look outside the terms stipulated or agreed in deciding the rights and obligations of the parties. The conditions of service are the bedrock upon which the claimant must found his case, he succeeds or fails upon the terms thereof. It is trite that when an employee complains that his employment has been wrongfully terminated, retired or dismissed, the onus is on him to place before the court the terms and conditions of service and to prove the manner the terms and conditions were breached by the employer and by whom they can be removed. Ordinarily under the master and servant relationship an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all, so long as he acts within the terms of the employment, his motive for doing so is irrelevant. The claimant’s appointment was terminated by Exhibit PWH a letter dated 7th January, 2010 the content is hereby reproduced under:- FEDERAL MORTGAGE Federal Mortgage Bank of Nigeria HEAD OFFICE: Plot 266 Cadastral AO, Central Business District P.M.B. 2273, Abuja. Tel: 09-4602102 E-mail: info@fmbnigeria.org. Website: www.fmbnigeria.org January 7, 2010 Mr. Uhamber, Vangerbee Amur P& S Department Federal Mortgage Bank of Nigeria Abuja. Dear Mr. V. A. Uhamber, STAFF PERFORMANCE APPRAISAL FOR YEAR 2009 Following the review of the 2009 Staff Performance Appraisal, the Board at its 164th Meeting has approved the termination of your appointment with immediate effect on the grounds that your services are no longer required by the Bank. The Board has also approved that sic (6) month’s salary be paid to you. You are however required to ensure that all the properties of the Bank in your possession including fixed assets and ID Cards be returned to the Bank. You will be entitled to other terminal benefits as provided by the Staff Conditions of Service. On behalf of the Board of FMBN, we wish to express our appreciation for the services you have rendered to the Bank and to wish you success in all your future endeavours. Thank you. Yours faithfully, FEDERAL NORTGAGE BANK OF NIGERIA. SIGNED MALLAM MAGAJI M. BELLO EXECUTIVE DIRECTOR (ORGANIZATIONAL RESOURCING) The Federal Mortgage Bank of Nigeria conditions of service provides in Sections 90.23, 90.24, 90.26 for the determination of contract of service. While Section 90.33 also provides for the termination of appointment due to redundancy. The question then is whether the defendant complied with the staff conditions of service? The claimant claimed that being a senior staff of the defendant he ought to be given three months notice to have his employment terminated under article 90.24. That the defendant did not give the required notice in the letter of termination of appointment Exhibit PWH, and that his appointment was terminated on account of redundancy that this cannot be, going by the provisions of Article 90.37 Contending that the termination of his appointment by the defendant stating that the services is no longer required cannot be justified in that the defendant did not produce any evidence to show that there is any change in its operation or decline in its activities. The contention of the claimant is that he was not paid the three months salaries in lieu of notice on the day the letter of termination was issued which is in breached of the conditions of service, being an employment with statutory flavour. That the provision of Article 90.37 provides:- An employee whose appointment is terminated because of redundancy, shall received the following, One month notice in the case of junior staff and three months notice in the case of senior staff at F.M.B.N’s option, one month basic salary in lieu of such notice; in the case of junior staff or three months salaries in lieu of notice for senior and management staff. The claimant is urging the court to reinstate him with full benefits or in the alternative grant him monetary reliefs as compensation for the illegal termination of his appointment up to the year 2018 when he will reach the age of retirement. The defendant denied that the claimant employment was not lawfully terminated that by the provision of Section 90.2 of Federal Mortgage Bank of Nigeria conditions of service Exhibit PW2 the claimant was entitled to 3 months in lieu of notice however the letter of termination PWH stated 6 months will paid to him. Flowing from the fact that the claimant’s employment is that of master and servant the court cannot order the reinstatement of the claimant because the court will not order specific performance of contract of service when the master brings the contract of employment to an end. This is because to order specific performance of a contract of employment would tantamount to forcing a willing employee on an unwilling master. The claimant in his brief, oral evidence and final address submitted that non-payment of his 3 months salary in lieu of notice at the time the letter was issued by the defendant meant non-compliance with the terms of the contract of service, as the payment must be made at the time of termination of employment. I think the mode and time of payment of salary in lieu of notice depend on the circumstances of each case. In Exhibit PWH the letter of termination of appointment of the claimant stated in paragraph 2:- The Board as approved that six months salary be paid to you. You are however, required to ensure that all the properties of the Bank in your possession including fixed assets and I.D Card be returned to the Bank. Has the claimant complied with paragraph 2 of Exhibit PWH requiring him to return the properties of the defendant in his possession and the defendant refused to pay him his entitlements? It is my opinion that the entitlement of the claimant will be paid to him upon him meeting the conditions stated above. It is after the claimant has complied with the conditions stated in Exhibit PWH relinquishing all properties of the defendant in his possession that he has the right to complain. It is my view that the employment of the claimant was lawfully terminated. In the alternative the claimant is also claiming his terminal benefit till 2018 when he would have voluntarily retired from the service of the defendant, his accrued and unpaid pension form his old employment with the defendant between 1987 and 1993, six months salary by virtue of letter of 7th January, 2010, passage allowance covering the period between 2010 and 2018 when he would have voluntarily retired from the service of the defendant and lastly, entertainment allowance to cover the 2010 and 2018. It is the general principle of law that specific performance of a contract of service will not be ordered by the court when the master brings master/servant relationship to an end. It is the principle of law that a servant whose employment has been lawfully determined cannot claim wages for services he never rendered. Even if the termination or dismissal is wrongful the measure of damage is prima - facie the amount the Plaintiff would have earned had the employment continued according to contract. He is however, entitled to be paid his pension up to the time he worked for. Finally the claimant is asking for N20M as damages. General damages are said to be damages that are presumed and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently result from the tort for which a party has sued, that harm is reasonably expected and need not be alleged or proved. To be awarded damages, the claimant must have succeeded in his claims before the court. However, the claimant has failed to prove the wrong done to him by the defendant. The court therefore, makes no award in this regard. I will now consider the counter-claim raised by the defendant in its statement of defence and final address. Wherein the defendant is requesting for the release of its Toyota Corolla Car Reg. No. CL 936 RBC and FG No. FG 239 C20 in the possession of the claimant. Counter-claim is in itself an action distinct and separate from the main claim of the claimant. It is by its nature a cross action by the defendant where the defendant is with respect to it claim in the counter-claim the claimant and the main claimant the defendant to the action in a counter-claim. It is not in dispute, that a Toyota Car was allocated to the claimant as his official car on the 8th December, 2008 as the Group Leader. He admitted that the car is still in his possession. The claimant’s appointment was terminated on 7th January, 2010 which means the claimant has been in possession of the car for about 4 years now, after the termination of his appointment. The car has not been sold to him even though he requested the defendant to sell the car to him which was turned down. It is my view that the decision of what to be done to the car either to sell or have it returned to the Bank is left to the defendant to decide in view of the lent of years it has been with the claimant. For the reasons given above, the claimant claims fail and the claims are hereby dismissed, while the claim of the counter-claimant succeeds they have the right to take possession of their vehicle. Judgment is entered accordingly. ______________________________ HION. JUSTICE O. A. SHOGBOLA JUDGE