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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice V. N. Okobi - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge DATE: JULY 20, 2010 SUIT NO. NIC/6/2008 BETWEEN 1. Adedoyin Olayinka 2. Agosu Oladapo 3. Segun Isaac Akanni 4. Adeyeye Julius 5. Johnson Adebayo 6. Coker Oludare - Claimants AND Wema Bank Plc - Respondent REPRESENTATION O. K. Salawu and E. I. Maduabuchi, for the claimants M. C. Okwara, for the respondent JUDGMENT The claimants filed a complaint against the respondent on February 7, 2008 claiming four reliefs. The complaint is, however, dated 4th February 2008. Accompanying the complaint are the statement of facts, the list of witnesses to be called and the list of documents to be relied on at the trial, all as signed by O. K. Salawu, of counsel. In the statement of facts, the claimants stated as follows - 1. The claimants are all former employees of the National Bank of Nigeria, now Wema 2. The respondent is a public limited liability company carrying on the business of Banking Bank. 3. The claimants aver that their appointments with the National Bank were terminated in March 2006 by the respondent as a result of the restructuring of the bank due to the acquisition/merger of the bank with the respondent. 4. The claimants aver that at the Extra-Ordinary general meeting of the share holders, Board of directors and employees of the Bank held on the 29th of December 2005, it was agreed among others that the claimants and other employees of the banks shall be paid two years of their gross earning or salary as their severance package upon the determination of their employment by the respondent. Notice is hereby given to the defendant to produce the Minutes of the Extra-Ordinary general meeting of the shareholders, Board of directors and employees of the Bank held on the 29th of December 2005. 5. That upon the conclusion of the acquisition and merger of their employer (National Bank of Nigeria), the respondent refused to enforce the severance agreement reached and registered with the Central Bank of Nigeria at the time the merger was sealed. When their employment was determined. 6. The claimant state that the respondent did not complied with the agreement and resolution reached by the Extra-Ordinary general meeting of the shareholders, Board of directors and employees of the Bank. 7. The claimants state further that instead of being paid 24 months gross salary as approved at the Extra-Ordinary General meeting held on the 29th of December, 2005 the respondent paid only 12 months of the gross salary contrary to the resolution of the Extra-Ordinary General meeting held on the 29th of December 2005. 8. The claimants protested of the short fall in the payment of their severance package yielded no positive respond from the respondent. 9. The claimants state further that upon the failure of the respondent to comply with the shareholders' resolution and agreement of 29th of December 2005 despite their protest, they approach the firms of Falana & Falana's chambers which cause a letter to be written to the respondent demanding that the respondent comply with the 29th of December 2005 resolution of the Extra-Ordinary General meeting of the bank and for which the respondent had failed, refused or neglected to accede to the demand. 10. The claimants' claim is for:- (1) A DECLARATION that the respondent is bound by the agreement and resolution reached at the Extra-Ordinary general meeting of National Bank held on the 29th of December, 2005. (2) A DECLARATION that the severance package of 12 months of the gross salary paid to the respondent is not in accordance with the agreement and resolution reached at the Extra-Ordinary general meeting of National Bank held on the 29th of December 2005. (3) AN ORDER that the respondent should pay to the applicants their severance package agreed upon at the Extra-Ordinary General meeting of the National Bank held on the 29th December, 2005. Which is two years of the gross earnings? (4) AN ORDER that the respondent should comply with all other terms and conditions agreed upon at the said Extra-Ordinary General meeting of the National Bank held on the 29th of December, 2005. There is so much inelegance in the drafting of the statement of facts especially in terms of grammatical errors exhibiting thereby nonchalance as to proofreading on the part of counsel who drafted same. The inelegance in drafting can be seen in especially paragraph 10(2) where counsel asserted that "the claimants' claim is for [a declaration] that the severance package of 12 months of the gross salary paid to respondent... (The emphasis is ours). Counsel had in paragraph 7 asserted that the respondent paid out 12 months of gross salary. The attempt by the claimants' counsel to, therefore, turn the court to a proofreader of his originating processes must be denounced in strong terms. It smacks of carelessness unbecoming of a professional in the discipline of law. In reaction to the originating processes, the respondent filed its statement of defence, the list of the witness to be called and the list of documents to be relied on at the trial. In its statement of defence, the respondent stated as follows - 1. SAVE AND EXCEPT as herein after admitted, the respondent denies each and every allegation of fact contained in the Statement of Fact as if the same were set out and traversed seriatim. 2. The respondent admits paragraphs 1, 2 and 3 of the Statement of Fact dated 4th day of February, 2005. 3. The respondent denies paragraphs 4, 5, 6, 8, 9 and 10 of the Statement of Fact and puts the claimants to the strictest proof thereof. 4. The respondent admits paragraph 7 of the Statement of Fact to the extent that the claimants were paid 12 months of the gross salary. 5. That the claimants were paid what the management of National Bank of Nigeria Limited agreed that would be paid to workers not absorbed by the respondent as severance package. 6. That there was no Extra-Ordinary meeting of the Shareholders, Board of Directors and Employees of National Bank held on 29th of December, 2005 on the issue of severance package for workers. 7. That the respondent shall rely on the Special Resolution of Shareholders of National Bank of Nigeria Plc dated 29th day of December, 2005 detailing what was resolved at the Extra-Ordinary General Meeting of National Bank of Nigeria Plc held on 29th day of December, 2005. The said resolution is hereby attached. 8. That on 10th September 2007, the claimants filed a suit before this Honourable Tribunal with Suit No. NIC/39/2007. The said suit was later discontinued by the claimants. 9. That in the said Suit No. NIC/39/2007, some of the documents attached and to be relied on as exhibits were: (a) A letter from the Securities and Exchange Commission dated 8th December 2005 with the heading Re: Proposed Take-Over of Lead Bank Plc and National Bank Nigeria Plc by Wema Bank Plc. (b) A letter from the National Bank of Nigeria Limited addressed to the Director General, Securities and Exchange Commission with the heading Re: Proposed Takeover of Lead Bank Plc & National Bank of Nigeria Plc by Wema Bank Plc dated December 8, 2005. Copies of the said letters shall be relied upon at the trial of this action and are hereby attached. 10. In the said letter from Securities and Exchange Commission dated 8 December, 2005 and faxed to the National Bank of Nigeria Limited, the Securities and Exchange Commission acknowledged that as a result of the takeover there would be restructuring which will result in the pay-off of some staff. 11. The Securities and Exchange Commission further wanted to know how National Bank intend to carry out the exercise as well as plans on settlement of the benefit of the staff that may be disengaged. 12. In the reply from National Bank of Nigeria Limited dated December 8 2005 to the Director General Securities & Exchange Commission, the bank stated among other things that Senior Manager and below shall be paid 12 months Gross Package including 12 months annualized value of assets and benefit in kind assigned to the staff. 13. That the claimants were not sure of the severance package agreed as could be seen in their claim No. 3 in both their General Form of complaint and their Statement of Fact when they stated as follows: AN ORDER that the respondent should pay to the Claimants their severance package as agreed upon at the Extra-Ordinary General Meeting of the National Bank held on the 29th of December 2005 which is two years of the gross earning? 14. That the claimants were paid what was agreed with them and not 24 month gross earning. The respondent did not pay their own staff who were not absorbed as a result of the takeover 24 months gross earning. 15. The respondent will urge this Honourable Tribunal to dismiss this action with substantial cost as it is frivolous, vexatious and an abuse of court process. We note the reference by the respondent to this court as a tribunal and wish to point out that since inception in 1976, the National Industrial Court (NIC) has been and still remains a court properly so called. It is not a tribunal as the respondent has made out. The claimants agreed to argue the matter on record, relying thereby only on the documents already in the case file and so dispensing with the need to call witnesses. To this end, the claimants went on to file their written brief of argument. In what the claimants called their final written address, the claimants had attached additional documents, documents which this court had in a considered ruling on May 7, 2009 rejected. When these documents were, therefore, attached to the written address of the claimants, the court, in another considered ruling on May 7, 2010 once again rejected them. This means that the documents to be considered for purposes of this judgment are - 1. The minutes of the extra-ordinary meeting held on the 29th of December 2005. This document is actually an email from one Oyedele Akintola to one Dapo Agosu and not minutes of a meeting as the claimants make out. In any event, by paragraph 4 of the statement of facts, the claimants gave notice to the respondent to produce the said minutes. The respondent has, however, in paragraph 3 of its statement of defence denied the existence of any minutes and put the claimants to the strictest proof. 2. The employment letters. 3. The disengagement letters All other documents such as the promotion and review of remuneration dated 16/7/2004, 2/12/2005, 4/6/2004, 5/7/2005, and 4/6/2004 respectively, letters from National Bank Ltd dated 8th of December, 2005 and 5 letters of termination of appointment of each of the claimants dated the 9th of March, 2006 and March 20, 2006 introduced for the first time at the point of address by the claimants and which have been rejected by this court will, therefore, not be considered in this judgment. The claimants started off their written address with an introduction of the antecedents of the case. To the claimants, they are ex-employees of National Bank Ltd which was acquired by the respondent and had their employment terminated as a result of the restructuring of the bank. That upon the termination of their employment the claimants were paid 1 year basic salary as their severance entitlement contrary to 2 years gross payment approved by the Board of Director of the National Bank via a board resolution of 22 of November, 2005 which is by the document dated 03/01/2006 an email to all the staff of the National Bank sent to them by the Managing Director of the Bank. That the respondent on their own admitted that the bank agreed to pay the claimant one year gross. Even though the respondent contested that the claimants were indeed paid one year gross, that what the claimants were indeed paid was one year basic pay and not gross. That the respondent attached the special resolution of the bank dated 20/12/2005, and the letter from National Bank to SEC dated 8th of December in which the claimants who are within the ranks of Senior Banking officer below are to be paid one year gross as severance entitlement. Mr. O. K. Salawu, counsel to the claimants then went on to frame two issues for the determination of the court, the first being a most inelegant piece. The issues as framed by counsel are - - 1. Whether the court can enter judgment for the claimants as per the admission of the defendants that the claimants. 2. Whether the claimants are entitled to their claim. Regarding issue 1, counsel to the claimants submitted that the claimants are entitled to judgment as per the admission of the respondents in paragraph 12 of the statement of defence in which the defendant admitted that the claimants shall be paid one year gross salary as their severance entitlement. To counsel, the Court of Appeal in the case of Pas Nig Ltd v. NNS Co. Ltd [1990] 6 NWLR (Pt. 159) 764 at 772 stated that Where a whole or part of an ascertained sum is admitted, the issue is concluded as to the amount admitted and it gives rise to proper invocation of the provisions of order 27 r 3 of the rules of the Supreme Court. The appellant claim is for a definite or ascertained sum and the respondents having admitted owing part thereof, the Court in exercise of its power, is entitled to enter judgment, on application, oral or written by the appellant for the sum admitted and leaving the rest to be contested. Counsel continued that upon the termination of their employment the claimants were paid one year basic salary as their severance entitlement. That this is contrary to 2 years gross payment approved by the Board of Directors of the National Bank via a board resolution of 22nd November 2005 which is, by the document dated 03/01/2006, an email to all the staff of the National Bank sent to them by the Managing Director of the Bank. To counsel to the claimants, the respondent on their own admitted that the bank agreed to pay the claimants one year gross. That even though the respondents contested that the claimants were indeed paid one year gross that what they claimants were indeed paid was one year basic pay and not gross. Consequently, the counsel to the claimants urged the court to enter judgment for the claimants as per the admission of the respondent and order that the claimants be paid their one year gross annual payment less the one year basic already paid to them. Counsel to the claimants continued that the claimants in their pleading erroneously pleaded that the claimants were paid one year gross, urging the court to discountenance the pleading of the claimants in that regard as no evidence has been given to support same. Counsel then urged the court to enter judgment in favour of the claimants as par the admission of the respondent and order the respondent to pay the claimants one year gross less the one year basic already paid to the claimants. The counsel to the claimants abandoned issue 2 and urged the court to do substantial justice to the parties and enter judgment in favour of the claimants as per the respondent's admission. In reaction to the claimants' written address, the respondent filed its written address. To the respondent, by Order 3 Rule 1 of the National Industrial Court Rules 2007, any action for determination by the Court shall be commenced by way of complaint which shall be filed and sealed and shall be in Form 1 attached to the rules of the court. Order 3 Rule 4 states that the complaint shall be accompanied by — (i) A statement of facts establishing the cause of action. (ii) Copies of every document to be relied on at the trial. (iii) List of witnesses to be called. The respondent continued that the claimants had earlier in Suit No. NIC/39/2007 between same parties instituted this action by Originating Summons. That when they realized that the issues involved requires calling of oral evidence, and not having complied with the rules, they discontinued the action by filling notice of discontinuance dated 21st January 2008. The said Suit No. NIC/39/2007 was, therefore, discontinued on the application of the claimants. That in the present case Suit No. NIC/6/2008, the claimants commenced the action by way of Complaint, which requires that witnesses will be called to prove the case; and the claimants, actually filed a list of witnesses to be called. The respondent then submitted that the claimants can, therefore, not proceed to write and file a written address when the claimants have not put their witnesses in the box to prove their case. That the rule of evidence is that he that asserts must prove, referring to section 135(1) of the Evidence Act. Also that in Calabar Co-op. Ltdv. Ekpo [2008] 1 - 2 SC 229 at 255 paragraphs 15- 30, the Supreme Court held that – The law is elementary that the burden of proof is on the party who alleges the affirmative. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. That the existence of any fact which the claimants pleaded has not been proved by them. The respondent then urged the court to strike out the address filed by the claimant because it is an abuse of court process. The respondent, however, went on to reply to some of the issues raised in the claimants' address. To the respondent, in paragraph 7 of the claimants' Statement of Facts, the claimants pleaded categorically that the respondent paid them 12 months of the gross salary contrary to the resolution of the Extra-Ordinary General Meeting held on the 29th December 2005. That in paragraph 4 of the respondent's Statement of Defence, the respondent admitted that the claimants were paid 12 months gross salary as pleaded by claimants. It is a trite law that parties are bound by their pleadings. The respondent continued that in its Statement of Defence, the respondent frontloaded the resolution of the Extra-Ordinary General Meeting of National Bank of Nigeria Pic dated 29 December, 2005. That in the said resolution there was no issue on the severance package of the claimants. That the e-mail of 03/01/2006 is not from National Bank and could have emanated from anybody. It is electronically generated and was not signed. It is inadmissible and irrelevant. To the respondent, to further prove what was approved by the Board of National Bank as severance package, the respondent frontloaded a letter written to the Director General of the Securities & Exchange Commission dated December 8, 2005 by National Bank. In the said letter at page 2 paragraph (ii) it was stated "SM & Below - 12 months Gross package including 12 months annualized value of asserts and benefits in kind assigned to the staff...." That this was what the Board of National Bank approved to be paid for Senior Managers and below. This was paid to the claimants. That it is an abuse of court process for the claimants to just state in their address that they were in error when they pleaded that they were paid 12 months gross salary by the respondent. The claimant cannot approbate and reprobate at the same time. This will amount to picking and choosing whatever they like in the matter and asking the court to give judgment on it. That the claimants have not proved that what they were paid was one year annual pay, contrary to their own pleadings, the respondent's pleadings and the letter to the Securities and Exchange Commission whereby the Board approved 12 months gross pay and which was paid by the respondent. The respondent continued that the claimants have abandoned other reliefs sought in their complaint and statement of facts filed on the 27th February 2008. That the only issue remaining which is on whether they were paid one year salary or 12 months gross salary has not been proved. The respondent then urged the Court to dismiss the claimants' action as it is frivolous, vexatious and abuse of the process of this Court. That it would at least be described as gold-digging and gambling with law suit which this court will not encourage. After a careful consideration of the processes filed and the written submissions of the parties in this matter, there is only one issue for the determination of this court, which is, according to the claimants, whether the court can enter judgment for the claimants as per the admission of the respondent that the claimants shall be paid one year gross salary as their severance entitlement. The claimants had earlier in their written submission abandoned issue 2, which they framed for the determination of this court. Before addressing the issue at stake, we must consider the submission of the respondent that the claimants cannot proceed to write and file a written address when they have not put their witnesses in the box to prove their case. The respondent assumes that the requirement of frontloading under Order 3 Rules 1 and 4 of the NIC Rules 2007 necessarily means that a claimant must call witnesses if he indicates that he is calling witnesses; and where the witnesses are not so called, then a claimant cannot file a written address as is the case in the instant suit. There can be nothing further from the truth. The requirement of frontloading is to allow the respondent know what case he is meeting. A claimant who believes he can argue his case on the strength of the documents frontloaded as evidence may wish to dispense with the calling of witnesses once the frontloaded documents have not been objected to by the respondent, which is the case in the instant matter. We do not, therefore, agree with the respondent that the claimants cannot proceed to write and file a written address when they have not put their witnesses in the box to prove their case. We now proceed to the main issue at stake, which is whether the court can enter judgment for the claimants as per the admission of the defendant that the claimants shall be paid one year gross salary as their severance entitlement. The two sets of admissions, the first by the claimants and the second by the respondent, upon which this issue is hinged are reproduced below. The first is paragraph 7 of the statement of facts, which reads - The claimants state further that instead of being paid 24 months gross salary as approved at the Extra-Ordinary General meeting held on the 29 of December, 2005 the respondent paid only 12 months of the gross salary contrary to the resolution of the Extra-Ordinary General meeting held on the 29th of December 2005. The second is paragraph 12 of the statement of defence, which reads — In the reply from National Bank of Nigeria Limited dated December 8 2005 to the Director General Securities & Exchange Commission, the bank stated among other things that Senior Manager and below shall be paid 12 months Gross Package including 12 months annualized value of assets and benefit in kind assigned to the staff. In paragraph 12 of the statement of defence, the respondent admitted to owing 12 months gross salary while in paragraph 7 of the statement of facts the claimants admitted that they are in receipt of the 12 months gross salary. Parties are bound by their pleadings. The claimants are, therefore, bound by their pleading, the statement of facts. It does not lie in the mouth of the counsel to the claimants to say that the admission in paragraph 7 of the statement of facts is an error on the part of counsel. We indicated earlier the inelegance in drafting by counsel to the claimants. A serious counsel cannot be that careless with the fate of his clients whose brief he has accepted and is paid to defend them. The level of careless exhibited by counsel to the claimants in this matter is well above the point of error. We do not believe that counsel to the claimants acted in error when drafting the originating processes. The actions of counsel throughout the determination of this matter smack of either sheer incompetence on his part or simply nonchalance. Counsel cannot, therefore, hide under the excuse of error on his part when he prosecuted this case in a most unprofessional manner. The counsel to the claimants then went to rely on an email as evidence of the resolution of the Extra-Ordinary General meeting held on the 29th of December 2005. The reliance by the counsel on this email from a person whose capacity to write the mail is not known except for the submission in the written address of the claimants stating that the writer of the email is Managing Director of National Bank cannot be upheld by this court. Fresh evidence cannot be given in a written address; a written address is meant to evaluate evidence already tendered or given and then apply the law to the said evidence. We cannot, therefore, place any reliance on the said email. It is for the same reason that this court earlier refused to admit in evidence the documents the counsel to the claimants freshly attached to the claimants' final written address. On the whole, the claimants have not been able to prove any indebtedness by the respondent to them. They have not, therefore, been able to prove their claims against the respondent. The action of the claimants must consequently fail. Judgment in hereby entered for the respondent and the case of the claimants is accordingly dismissed. Judgment is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice O. A. Obaseki-Osaghae Judge Judge