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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 16th February, 2015 SUIT NO: NICN/ABJ/43/2013 Between: Okechukwu Uwakwe Claimant And Kakawa Discount House Limited Defendants REPRESENTATION Claimant present, Defendant absent; A.B. Ige Esq. for the claimant; Bola Olotu with F.H. Abiola for the defendant. JUDGMENT By a complaint dated 1st of March, 2013 and filed the same date, the claimant prayed the court for the following reliefs:- 1. A DECLARATION of this Honourable Court that the Claimant's letter of "Resignation of Appointment" dated June 1, 2012 issued to the Defendant in compliance with his contract of service is valid and effective to terminate the Claimant's employment with the Defendant; 2. A DECLARATION of this Honourable Court that the Defendant has no power under employment law and under the contract of service governing the parties' employment relationship to reject the Claimant's letter of "Resignation of Appointment" dated June 1, 2012 via the Defendant's letter of June 4th 2012; 3. A DECLARATION of this Honourable Court that the Defendant's letter of June 4th, 2012 titled "RE: Resignation of Appointment" wherein it purported to reject the Claimant's notice of resignation from its employment dated June 1st 2012 is null, void and of no effect whatsoever. 4. A DECLARATION of this Honourable Court that the Defendant's letter of June 12th 2012 written to the Central Bank of Nigeria informing it of the purported termination of the Claimant's employment for gross negligence of duty and lack of integrity' was made in breach of the defendant's obligations under the contract of employment with the Claimant and was unfairly prejudicial to the Claimant, was made in bad faith and is null, void and ineffective. 5. A DECLARATION of this Honourable Court that the whole proceedings adopted by the defendant in relation to the termination of the Claimant's employment, including the proceedings of the Disciplinary Committee set up by the defendant and the purported rejection of the Claimant's letter of resignation dated June 1st 2012 was in gross breach of the defendant's obligations to the Claimant under employment law and international best labour practice and therefore constitutes an unfair labour practice by the defendant against the Claimant. 6. A DECLARATION of this Honourable Court that the Claimant is entitled to be paid a severance allowance and terminal benefits (entitlements) accrued and due to him under his contract of service and in accordance with the Defendant's staff policy flowing from the Claimant's voluntary resignation of his employment with the defendant. 7. AN ORDER of this Honourable Court directing the Defendants to pay to the Claimant the sum of N2, 800, 000 (Two Million, Eight Hundred Thousand Naira) as his severance allowance or such sum as this Honourable Court may deem to be a fair calculation of the Claimant's severance allowance taking into cognizance the Claimant's length of service and annual salary for the period of his employment with the defendant. 8. AN ORDER of this Honourable Court directing the Defendant's to pay to the Claimant the sum of N2, 000,000.00 (Two million naira) as the Claimant' s lawful terminal benefits which he is entitled to receive upon his resignation from the employment of the Defendant effective June 1st 2012. 9. AN ORDER of this Honourable Court directing the defendants to pay to the Claimant the sum of N8, 000,000 (Eight Million Naira) being the cumulative proceeds of the 5% staff monthly deductions withdrawn from the Claimant's salary as contribution to the "Kakawa Staff Contributory Scheme" for' the period of his employment with the defendant (February 2008 - May 2012) together with accrued interests on the investments in shares, stocks and money markets etc to which the Claimant's contributions were put over the period of four years. 10. An Order of this Honourable Court directing the Defendant to pay to the Claimant the equivalent of 12 months' gross salary as damages for breach of his labour rights, exploitation and unfair labour practices by the defendant to be calculated on the basis of the last monthly salary earned by the Claimant while in the services of the defendant and shall be paid within 30 days of the judgment of this Honourable Court. 11. AN ORDER directing the Defendant to pay to the Claimant the sum of N10, 000, 000 (Ten Million Naira) as general damages for the hardship, inconvenience, difficulties and psychological trauma caused to the Claimant by the defendant's unlawful rejection of his right to voluntarily terminate his employment and subjecting him to various expenses in a bid to clear his name with the Central Bank of Nigeria (CBN) in consequence of the Defendant's letter to the CBN alleging negligence against him; 12. A DECLARATION of this Honourable Court that the Claimant was in no way negligent in his handling of the financial transaction leading to the disciplinary action by the defendant, but in all ways and at all times complied strictly with established laid down guidelines of the Defendant and in the banking and financial sector in his handling of the aforesaid transaction. 13. The sum of N5, 000,000 (Five Million Naira) being exemplary damages to 'the Claimant for injury to his reputation and integrity built over the years in the Defendant's employment in consequence of the conduct of the Defendant in alleging unproven negligence of duty against the Claimant in its letter to the Central Bank of Nigeria, which said allegation has harmed the Claimant's career in the banking and financial sector. 14. Costs of this action. 15. Ten Percent interest on all judgment sums due to the claimant from', the orders of this Honourable Court from the date of judgment until final liquidation by the Defendant. The complaint is accompanied with a 52 paragraphs statement of facts and all other frontloaded processes in accordance with the rules of this court. The defendant entered appearance on the 31st of May 2013, and also filed his defendant statement of defence, list of witnesses to be called and list of document to be relied upon in the trial and several other document. The claimant file a reply to the defendant statement of defence dated 25th June, 2013 and filed the same date along side with witness statement on oath in reply to defendant’s statement of defence. The parties there after file and exchanged pleadings, hearing commence on 1st July, 2013. The claimant testify as CWI, he was sworn by a holy Bible and after that he was led in evidence by his counsel Mr. B.B. Lawal Esq. The witness identify and adopted his witness statement on oath as his evidence before the court. The witness statement was tendered, admitted in evidence and marked as exhibit OU 01 and OU 02 respectively. Other document where also tendered and admitted in evidence. Thereafter the witness was cross –examined by counsel to the defendant Mr. Bola Olotu Esq. There was no re-examination and therefore the claimant close his case. The defendant open his case on the same day after the claimant closed his case by calling the only witness for the defence. The witness affirmed in English and adopted his witness statement on oath, the witness statement on oath was tendered and admitted. He was cross examined. There was no Re-examination, then he closed his case. It is now appropriate for me to consider the final written address filed by respective parties dated 15th May, 2014 and filed the same date respectively. In the defendant final written address settled by his counsel Mr. Bola Olotu Esq. The defendant formulated five issues for determination in this matter as follows: 1. Whether the claimant by his letter of resignation of appointment dated June 1, 2012 and delivered on 4th June, 2012 at the Abuja office of the defendant, validly and effectively complied with the terms and condition for the termination of employment with the defendant, considering his contract of employment? 2. Whether in the circumstances of this case, the defendant’s rejection of the claimant’s June 1, 2012 letter in attempted resignation from the defendant’s employment and the defendant’s termination of the employment of the claimant from the defendant’s employment are valid and effective? 3. Whether the defendant was under an obligation to write and/or rightly wrote the letter of June 12, 2012 to the Central Bank of Nigeria informing her of the termination of the claimant’s employment from the defendant’s services considering the code of ethics and professionalism in the banking and financial industry? 4. Whether the defendant having settled all entitlements and/or benefits due the claimant is liable to the claimant in any of the diverse monetary sum(s) and /or damages claimed by the claimant in this matter? 5. Whether the claimant (C.W) is a credible and/or honest witness whose testimony is to be believed and relied on by the Honourable Court? On issue 1 defendant counsel submitted that the nature of contract of employment between the defendant and the claimant is a pure master and servant relationship between an employer (the defendant) and an employee (the claimant). It is submitted that it is settled law that the relationship between an employer and its employee and their rights or liabilities are to be found in the contract of employment i.e service agreement or letter of employment. In support of his proposition, he cited ANAJA vs. UBA plc (2011) All FWLR pt 600 page 1289 at 1300 para ; B-C Michelin (NIG) LTD vs. Alaribe (2010) All FWLR PT 543 page 1998. Counsel therefore submitted that in this matter, the contractual relationship between the claimant and the defendant and the terms and conditions governing same are to be found in Exhibit OU–015 (i.e the employment letter identified, admitted and tendered through the claimant in person as CWI) and exhibit OU – 011, the defendant’s staff handbook. He referred to page 3 and clause in exhibit OU – 011 “The regulations and policies contained in the staff handbook shall apply to all staff” Thus exhibits OU- O11 and OU -015 governs the employment and the terms and conditions of employment before the claimant and the defendant. Defendant counsel drew the court’s attention to exhibit OU- 015 in page 2 on termination which he reproduced as “this appointment may be terminated by either party at any time by giving one month salary in lieu of notice”. Defendant counsel further contended that for the claimant to validly and effectively terminate his contract of employment with the defendant by way of resignation, the claimant must fulfill the terms and conditions, and comply with the process and procedure highlighted in the clauses of exhibits OU – O15 and OU – 011 as follows: i. By giving one month notice in writing or payment of one month salary in lieu of notice. ii. Must hand over the affairs of his job schedule properly to his/her head of department or any other person appointed by his /her Head of Department. iii. Letter of resignation will be submitted by employee in writing to the Head of Human Resources who will notify management, and seek the necessary approval for the acceptance of the resignation. iv. Employee is to return all property of kakawa in his custody and/or possession to the Head, Human Resources department immediately prior to or upon the cessation of their employment including but not limited to cars, furniture, identification card, customer list and access codes. Defendant counsel argued that the claimant did not fulfill any of the terms and conditions, nor complied with the process and procedure as contained in his contract of employment for a valid, effective and acceptable resignation. Counsel stated that a perusal of exhibit OU - 09 (i.e the claimant’s attempted resignation of appointment letter dated June 1, 2012) will reveal that the claimant’s attempted resignation was to be with immediate effect; Counsel submitted further that the claimant did not fulfill the terms and condition of one month salary in lieu of notice of his contract of employment with the defendant to make his attempted or alleged resignation of appointment as contained in his June 1, 2012 letter valid, effective, competent and acceptable. In support of his submission, he cited the case of Dr. Ben O. Chukwumah Vs. Shell Petroleum Development Company of Nigeria limited (1993) 5 SCNJ 1at 52 Lines 31-39. Counsel stated that the claimant not only fail to give one month notice but also failed in the fulfillment of all terms and conditions precedent to valid, effective and acceptable termination or resignation of his employment with the defendant as contained in the staff handbook and with the policies of the defendant. He submitted that the claimant also failed in his compliance with the said provision of clause 22.3.1 of exhibit OU – 011, the approval accepting the resignation is necessary. And where the defendant’s management did not give the necessary approval accepting the resignation as in the case of the claimant, the purported resignation of appointment by the claimant is invalid, ineffective and incompetent. In support of his argument he cited, the case of The West African Examination Council Vs. Felix Iwarue Oshionebo (2007) All FWLR Part 370 PAGE 1501 AT 1512 Para E; and at Page 1517 Paras B –C. Olaniyan Vs. University of Lagos (1985)2 NWLR PART 9 Page 599; Cadbury (NIG) PLC Vs. Oni (2013) All FWLR Part 665 Page 251 and Layade Vs. Panalpina (1996) 7 SCNJ I. In all contracts of employment the court must bewary of looking outside their terms. Counsel provided that by (i) not giving the required one month notice in writing of intention to resign or payment of one month basic salary in lieu of notice; (ii.) Not handing over the affairs of his job schedule properly or at all) to his head of department or any other person appointed by his Head of Department; (iii) not submitting his letter of resignation to the Head of Human Resources; (iv) the defendant’s management not giving approval for the acceptance of his resignation, all being the terms and conditions of the claimant’s contract of employment with the defendant, failed in the fulfillment of a valid, effective and competent resignation of appointment as alleged in his case before this honourable court. Defendant counsel posited that agreements between parties, particularly in a contract of employment is binding on the parties. Counsel cited Eze Vs. Okechukwu (2003) FWLR Part 140 Page 1710 Ratio. II and Chukwumah Vs. Shell Petroleum Development Company Nigeria Ltd (Supra) Page 50 Line 17-22. Counsel further stated that considering the nature of employment in the instant case; which is an employment in a financial institution; where the claimant was dealing with the defendant’s customer and there was a disciplinary issue on going in which the claimant was yet to make full disclosure to the satisfaction of the defendant regarding the defendant client /customer and transaction dealt with the claimant; couple with the claimant’s sudden attempted resignation immediately after appearing before the Disciplinary Committee and without fulfilling not even one of the agreed terms and conditions for such resignation; and not handing over at all or properly, the schedule of his job to his Head of Department; Counsel urge the court to exercise it discretion in holding that the claimant’s purported unilateral resignation of his appointment is invalid, incompetent, null and void. Counsel cited Chukwumah Vs. Shell Petroleum Development Company of Nigeria Limited (1993) 5 SCNJ page 1 at Page 50 and Olaniyan Vs. University of Lagos (1985) 2 NWLR Part 9 Page 599 (Ratio 32, 33, 36). On issue two: whether in the circumstances of this case the defendant’s rejection of the claimant’s June 1, 2012 letter in attempted resignation from the defendant’s employment and the defendant’s termination of the employment of the claimant from the defendant’s employment are valid and effective? Counsel submitted that it is settled law that parties to a contract are bound by the terms and conditions of that contract as agreed by them. Where the contract of employment as in this case is in writing to wit exhibits OU – 015 and OU – 11, the claimant and the defendant are bound by the express terms and conditions so stipulated. Counsel cited OLaniyan Vs. University of Lagos (1985) 2 NWLR Part 9 page 599 at 699 para F-G (Ratio 26, 27); Layade Vs. Panalpina World Transport Nigeria Limited (1996) 7 SCNJ Page 1 and 10 line 36-34. Defendant counsel argued that the claimant by his purported resignation of appointment letter of June 1, 2012 (i.e exhibit OU -09) did not discharge his obligation under the contract, and having not complied with the mutually agreed condition for resignation, the defendant as the fellow contracting party is not under any obligation to accept and has the right to refuse and or reject the attempted resignation of the claimant. In support of his argument counsel cited Chukwumah Vs. Shell Petroleum Development Company Nigeria Ltd (1993) 5 SCNJ Page 1 at page 52 line 31 – 36 (ration 10) Counsel submitted that from the forgoing pronouncement of the supreme court in Chukwuma’s case (supra), that since the claimant purported resignation letter dated June 1st 2012 (exhibit OU -09 was not a valid notice to discharge him from his obligation under the contract of employment with the defendant, the defendant’s letter of 4th June 2012 (i.e exhibit OU – O10) to the claimant notifying him of the defendant’s rejection of his attempted resignation which was not in compliance with the mutually agreed terms and conditions for resignation under the contract of employment between them, is valid and effective. Counsel urge the court to so hold. He cited Olaniyan vs. University of Lagos (supra). Defendant counsel posited that it is settled law that a master or employer has the right to terminate the employment of his servant or employee at any time for no reason at all, provided the master or employer complies with the terms and conditions for such termination. In support of this law principle he cited National Electric Power Authority Vs. Enyong (2003) FWLR Part 175 Page 452 at 468-469 Para H-A (Ratio 5). Counsel also submitted that while the claimant in paragraph 30 of his statement of facts and witness statement on oath (i.e exhibit OU -01) respectively, and paragraphs 9 of his reply to defendant’s statement of defence and witness statement on oath in reply to defendant’s statement of defence respectively, outrightly denied his knowledge of the defendant’s letter dated June 4, 2012 terminating his appointment, and that this outright denial of the claimant is betrayed by the claimant’s letter to Central Bank of Nigeria dated July 3, 2012 and tendered in evidence by the claimant himself and admitted as exhibit OU-013. Defendant counsel also stated that the claimant’s lied on oath regarding his knowledge of exhibit OU -024, alongside exhibit OU-O13 written as at July 3, 2012 wherein the claimant wrote on page 1 paragraph 2 : “Two weeks prior to my resignation (please note that I resigned before any letter of termination was afforded me); And on page 5 paragraph 2:- “Having tendered my resignation on Monday, June 4, 2012 I received a call on the 6th day of June 2012 from Yetunde Abatan of the Human Resources Department to inform me that my employment with Kakawa had been terminated, and she went on to read the letter to me. Counsel submitted that the defendant from exhibit OU-O24 being the email, letter of termination of appointment of the claimant and schedule of his indebtedness and entitlements set off which include his one month basic salary in lieu of notice in the sum of –N118,362:04 Kobo, validly and effectively complied with the contract of employment of the claimant regarding the termination of his appointment and urge the court to so hold. On issue three, whether the defendant was under an obligation to write the letter of June 12, 2012 to the Central Bank of Nigeria informing it of the termination of the claimant’s employment from the defendants’ services, considering the code of ethics and professionalism in the Banking and finance industry? Defendant counsel posited that the defendant as a financial institution is by virtue of exhibit OU – O26 under an obligation to inform the Central Bank about the termination of appointment of the claimant. And same is in accordance with the contract of employment of the claimant with the defendant. Also he further submitted therefore that the defendant’s letter of June 12, 2012 is not null, void and ineffective, as same is mandated by the code of ethics and professionalism in the Banking and finance industry and it was in compliance with the contract of employment of the claimant with the defendant he referred to clause 2.3 (i) (ii) (iii) of exhibit OU-O11. Clause 4.0 (iii) (d) of exhibit OU- 026. And urge the court to dismiss the claimant’s relief /claims 52 (d) (1) On issue four, whether the defendant having settled all entitlement and /or benefits due the claimant is liable to the claimant in any of the diverse monetary sum(s) and /or damages claimed by the claimant in this manner? Defendant posited that the claimant did not comply with the provision of clause 23.8.1 of exhibit OU – 011 to wit return of all property of the defendant in his custody to the defendant. And stated that the purported resignation letter of the claimant dated June 1, 2012 did not contain any such return of any of the defendant’s property to wit identification card, customer list access codes etc to the defendant by the claimant. Counsel further argued that the claimant having failed to comply with clause 23.8.1 in exhibit OU –O11 to wit return all property of the defendant in his custody and possession upon cessation of his employment, cannot sustain or lay any claim to any terminal benefits (if at all any outstanding), as the defendant reserves the right to withhold all such benefits to the claimant until he returns all the property of the defendant. Consequently claimant cannot sustain his relief 52 (f) and the other monetary reliefs emanating there from to wit 52 (g) (h) (i) (j) (k) (m) against the defendant and urge the court to dismiss the claimant’s claim /reliefs therein. Defendant counsel reiterated that the defendant’s settlement of the claimant entitlement’s which were used to set off his indebtedness to the defendant as contained in exhibit OU- O24, counsel referred to exhibit OU – 027, OU- O28 and OU -018, Exhibit 0U -27 is an email from the defendant to the claimant on the received cheque of N1.4 Million from FBN Insurance in settlement of his accident vehicle which he obtained a loan from the defendant to purchase. Also the said email also informed the claimant that his outstanding to the defendant as advised was deducted and the balance paid into his LMS account. Exhibit OU –O28 is the email on full liquidation of the indebtedness as set off from insurance claim. And exhibit OU – O18 is the LMS account of the claimant which shows the corresponding amount of N1, 152, 889.86k paid into claimant’s LMS account on 3rd July 2012. He further submitted that the claimant took a car loan; admitted the receipt of the email and letter to wit exhibits OU -O27, OU -O28 forwarded to him on the transaction; confirmed exhibit OU –O18 as his LMS account and that the same email address of the claimant through which he obtained the admitted emails, is exactly the same email address of the claimant used to forward exhibit OU-O24. Counsel submitted that the claimant who was notified and received all the said calculation without any denial, protest letter or obligation to the defendant upon his receipt of same or knowledge of same, should be stopped from now complaining. Counsel call in aid the case of C.D.B Plc Vs. Ekanem (2010) All FWLR PART 511 PAGE 833 RATIO 3. Where it was held by counsel, it is incumbent on a recipient of a business letter to reply as its default to reply can be presumed that it has no objections to the proposals contained therein. Counsel also cited section 169 evidence Act 2011; Omoniyi Vs. UBA (2001) FWLR part 63 page 54 at 70 para. C-H. The defendant counsel further stated that the “Kakawa staff Contribution Scheme”, is a scheme for the entire staff on a collective trust agreement to wit exhibit OU – O19. And submitted that the claimant cannot singularly sue on breach of that collective agreement. Counsel cited in support of his submission the case of OSOH Vs. Unity Bank Plc (2013) ALL FWLR Part 690 page 1245. Counsel therefore urge my Lord to so hold and to dismiss the claimant’s relief 52 (i) against the defendant. Defendant counsel posited that a party should not be allowed to approbate and reprobate at the same time. Considering the claimant having written and tendered in evidence exhibit 04 -09 in which he expressed how Kakawa was true home to him over the years expressed his deepest thanks to Kakawa for all the progress he attained there and acknowledged the empathy and openness he received should not be allowed to turnaround and orally contradict same by alleging unfair treatment, exploitation etc. Counsel urge the court to so hold and to discountenance any and every contrary testimony to the content of exhibit OU -09. He cited section 167 evidence Act 2011. Counsel to the defendant further submitted that there is also no fact pleaded and no evidence led before this court in support of prove of any harm to the claimant’s career in the banking and financial sector and that non of the letters (i.e exhibit OU-O12 and OU – O14) from the Central Bank of Nigeria mentioned any harm done to the career of the claimant in the banking and financial sector. The claimant himself already testified as to how he went about his lawful activities thereafter his purported resignation from the defendant. That the claimant himself never mentioned in exhibit OU –O13 that his career was or is harmed in anyway what so ever but rather on page 5 paragraph 2 of exhibit OU-O13, said he resigned “ to pursue a career elsewhere”. Counsel contended that “a court should not allow the same party to have double compensation in respect of the same transaction. So where a plaintiff has recovered fully under special damages, such a plaintiff will not be entitled to general damages. He cited First Inland Bank Vs. Craft 2000 Ltd (2013) All FWLR Part 660 Page 1416 at 1429 Para. D-F, Texaco Nigeria PLC VS. Kahinde (2002) FWLR PJ 94 Page 143, Noble Drilling (Nig) Ltd Vs. Edemekong (2010) ALL FWLR Part 540 Page 1377 at 1385 para E-F “Wherein a contract of service the claim for special damages failed, the court could not proceed to award general damages. Awards of this nature are mostly in tortuous liabilities cases or where a profit is being expected and the performance of the contract is frustrated by the breach”. Counsel urge the court to dismiss same. He called in aid of his submission the case of Divine Ideas Ltd Vs Umoru (2007) All FWLR Pt. 380 P. 1468 at 1509 Paras. A – D (Ratios 28). “Cost of actions or solicitors fees are in realm of special damages which must be specifically pleaded and strictly proved and that in the instant case, the appellant did specially and specifically plead the details of the amount of money expended by it in the prosecution of the litigation in the trial court. Finally counsel submitted that the claim for 10% interest on all judgment sums due is dependent on the success of the monetary claim(s) before this Honourable Court. And that once the claimant’s monetary reliefs are dismissed, this head of claim will automatically fail. Counsel urge the court to so hold. On issue Five; whether the claimant as CW1 is a credible and reliable witness whose testimony ought to be believed, relied on, attached any weight and acted upon by this Honourable Court? Counsel submitted that for a court to act on the evidence or testimony of a witness in support of his case, that witness must be reliable and credible. Where the credibility of a witness is in question or a witness is discredited the court has no business believing such a witness or attaching any weight or probative value whatsoever to his testimony or evidence before the court. Counsel called in aid Ayanwale Vs. Atanda (1988) 1 NWLR Pt. 68 Page 22 at 835 Paragraph C –E. Counsel provided that by the provision of section 233 Evidence Act 2011, the credit of a witness may be impeached by any party other than the party calling him by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Counsel submitted that the claimant lied on oath in exhibit OU – 02 and OU -01 on the issue of not being notified, inform and having knowledge of his termination of employment and by the defendant. Also that in paragraph 12 of the Claimant’s reply to defendant’s statement of defence and witness statement on oath in reply to defendant’s statement of defence (i.e exhibit OU – 02) respectively the claimant also stated that at the time of writing the above letter to the Central Bank of Nigeria (CBN), the defendant had not yet communicated its alleged termination to the claimant. Counsel argued that the claimant narration as contained in exhibit OU – 013 in page 2 paragraph 5 admitting that the defendant’s Yetunde Abatan on the 6th day of June 2012 informed him of the termination of his employment by the defendant also reveals that the claimant (i.e CW 1) is not a reliable and credible witness. In view of the forgoing submission counsel urge the court to dismiss the claims of the claimant against the defendant, with substantial cost against the claimant. The claimant in his final written address formulated the following issues for determination as follows: (1) Whether the claimant’s letter of resignation of his employment vide Exhibit OU-09 dated 1st June 2012 and duly received by the defendant on 4th June 2012 is valid and effective in law to terminate the claimants’ employment with the defendant? (2) Whether the Defendant possesses the legal right and capacity to reject a validly tendered letter of resignation of an employee and whether the purported rejection of the claimant’s resignation is an acceptable labour practice in view of the principle of freedom of labour under Nigeria Labour Jurisprudence? (3) Whether the Defendant’s purported letter of termination vide Exhibit OU 23 dated 4th June 2012, which was never received no acknowledged by the claimant is valid in law? (4) Whether the Defendant has substantiated or in any way, manner or form established the allegation of gross negligence, lack of competence, or lack of integrity in the discharge of the claimant’s duties at any time in the course of his employment with the defendant and particularly in the handling of the financial transaction in question leading to the disciplinary action against the claimant? (5) Whether there is any legal justification for the false, misleading and maliciously inaccurate communication made by the defendant to the Central Bank of Nigeria (CBN) alleging a purported termination of the claimants’ employment for gross negligence of duty and lack of integrity, none of which allegations have been proven nor shown to have any legal basis? (6) Whether the claimant is entitled to the relief sought in his statement of facts? On issue one: counsel to the claimant submitted that where an employer and employee enter into a contract of employment, both parties are bound by the terms and conditions of that contract. The parties obligations, rights and liabilities are defined by such contract. Counsel went further to state that, it is the contract of employment that guides the relationship between the employer and the employee. Counsel called in aid the case of W.A.E.C Vs. Oshionebo & Others (2007) All FWLR (Pt. 370) 1501 at 1512 Paras. E – F; Olaniyan and Others Vs. Unilag and Another (1985)NWLR (Pt. 9) 599 Kabiri-Whyte JSC stated “contract of employment like all other contracts their creation and termination are both subject to the general principle governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated.” Claimant counsel argued that this employment relationship was regulated by Exhibit OU -015 being defendant’s letter of offer of employment to the claimant as well as Exhibit OU – 011 being the defendant’s staff handbook. While Exhibit OU-015 (The letter of employment) provides for the terms and conditions to be followed in the course of employment (e.g leave period, promotion, training etc), Exhibit OU- 015 also specifically provided for the method of resignation (termination of the employment relationship, Exhibit OU -015 provides: “This appointment may be terminated by either party at any time by giving one month notice in writing or payment of one month salary in lieu of notice”. Similarly, Clause 22.3 of Exhibit OU 11 provides that: “A confirmed Kakawa-employee may resign at any time he wishes….” Counsel submitted that the above clauses and exhibit i.e Exhibit OU -15 and OU -11 and clause 22.3 of Exhibit OU-011 gives the claimant the unfettered right to resign his employment at will. Counsel cited Chukwumah Vs. SPDC (1993) 4 NWLR (Pt.289) 512 Where the Supreme Court stated that either party to a contract of employment has the inalienable and unfettered right to terminate the contract at any time and once a termination is done by either party, it effectively brings the contract to an end regardless of the timing or circumstances of such termination. Counsel went further to state that in private sector employment (master/servant relationships), once a party has served the other party with a notice of termination of the contract of employment at any time, it effectively end whatever relationship that existed between the party regardless of whether such termination was done in bad faith, maliciously or even where the notice failed to comply with the prerequisites stated in the contract of employment. Thus where there exist a complaint as to mode of termination, certain remedies are open and available to the aggrieved party and this action cannot be the proper avenue for the defendant to ventilate such compliant. Counsel cited Olarewaju Vs. Afribank (2001) 13 NWLR (Pt.731) 691, WAEC Vs. Oshionebo (2007) All FWLR (Pt. 370) 1501 at 1512 Paras E –F. Counsel to the claimant further submitted that his power to resign his employment at any time borders on his Fundamental Human Right as guaranteed under the collective reading of section 34(I)(C) and section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 73 (I) of the Labour Act Cap LI LFN 2004 which provides as follows: Section 34(I)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) “Every individual is entitled to respect for the dignity of his person, and accordingly (c) no person shall be required to perform forced or compulsory labour”. Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) “Every person shall be entitled to assemble freely and associate with other persons” Section 73(1) of the Labour Act Cap LFN 2004 “Any person who requires any other person, or permits any other person to be required, to perform forced labour contrary to section 31(I)(c) Now 34(I)(c)of the constitution of the Federal Republic of Nigeria, shall be guilty of an offence and on conviction shall be liable to a fine not exceeding N1,000 or to imprisonment for a period not exceeding two years, or to both”. Counsel submitted that the claimant in this case has the unfettered right to terminate his employment with the defendant at any time he wished regardless of its occurring shortly after his appearance before the disciplinary committee, as such circumstance is an irrelevant consideration in the determination of the claimant’s right to terminate his employment with the defendant. Counsel submitted further that in determining whether the validity and effectiveness of claimant’s letter of resignation, the relevant consideration to be taken into account by the court are: i. Whether the absence of a month’s notice invalidates the termination of the claimant employment by his letter of 1st June 2012? ii. Whether the claimant communicated the exercise of his right to terminate the employment to the Defendant? iii. Whether the Defendant has the power to either approve or reject the claimant’s resignation i. Absence of a one month’s notice in the claimant’s letter of resignation Counsel to the claimant argue that there is no judicial support for the defendant’s assertion that an employee can be compelled to remain in the service of an employer after clearly manifesting his intention to terminate the employment on the basis that his/her letter of termination is absent of a month’s notice as stipulated in the contract of service. Counsel submitted that on the contrary the absence of a period of notice only entitles the employer to deduct a month’s salary from the employee’s entitlement and nothing more. In support of his argument counsel cited Karibi-Whyte JSC in Chukwumah Vs. Shell Petroleum(Supra) stated as follows: ‘In the ordinary case and following the common law principles, termination of contract of service even if unlawful brings to an end the relationship of master and servant employer and employee. This rule is based on the principle of the confidential relationship between master and servant which cannot continue in the absence of mutuality”. Counsel also cited Imoloame Vs. WEAC (1992) 9 NWLR (Pt. 265) page 303 at 318, UBN Ltd Vs. Ogborh (1995) 2 NWLR (Pt.380) Page 664 665. It is the further submission of counsel that on the basis of the authorities cited above, this absence of notice consequentially entitled the defendant to deduct a month’s salary in lieu of notice from the claimant’ entitlements or money in the defendant’s possession belonging to the claimant. Counsel call in aid the case of Imoloame Vs. WAEC (Supra). Counsel submitted that such employer cannot be heard to argue in court that the failure of the employee to physically handover a month’s salary to it at the point of termination renders his letter of resignation invalid, that this would tantamount to clinging unto technical justice. Counsel submitted further that in this case, the employee is entitled to offset/set off the salary in lieu of notice he is obliged to give the employer from the month’s salary owned him by the employer. Counsel contended that the testimony of DW1 under cross-examination where he admitted that whatever the claimant indebtedness to the defendant, the defendant would have deducted and indeed proceeded to deduct same from the claimant’s insurance claim without the claimant’ consent. In other words DW1 admitted that without seeking or obtaining claimant’s approval, all monies, payments due from the claimant to the defendant at the end of his employment were deducted by the defendant before the residual amount was remitted to the claimant. Counsel further submitted that assuming without conceding, that the claimant was obliged to pay one month basic salary in lieu of notice up front at the point of termination. In a simple master –servant relationship which does not enjoy statutory flavour, at worst, the courts have declared that such termination of employment can only be held to be wrongful (yet effective) not void. Its should be clearly appreciated that a “wrongful termination” remains an effective termination nonetheless, save that the termination was not carried out according to procedure. Counsel call in support of his submission the cases of Godfrey Isievwore Vs. NEPA (2002) 7 S.C (Pt. 11) 125 at 133, UBN Vs. Ogboh (1995)2 NWLR (Pt. 389) 649 at 664; Chukwumah Vs. Shell Petroleum Development Company of NIg. Ltd (1993) 4 NWLR (Pt. 289) 512 at 546, paragraph B-D; I.H.A.B.U.H.M.B Vs. Anyip (2011) NWLR (Pt. 1260) 1 at 20 Paragraph EG; GB. Ollivant (Nig) V.I.B Anbabiaka (1972) 2 S.C (Reprint) 127 at 134. Counsel submitted that in light of the arguments on this issue; the claimant’s letter of resignation dated 1st June 2012 is valid and effective under the law to determine the parties ‘employment relationship with effect from 4th June 2012 when it was received by the defendant. He urge the court to so hold. ii. Communication of the claimant termination of the employment. It is also submitted that it is trite law that an employment relationship is brought to an end upon the written communication of a party’s intention to terminate the relationship to the other party. Counsel call in aid Chukwumah Vs. Shell B.P(Supra); Ajayi Vs. Texaco (1987) 3 NWLR (Pt.52) page 577. Counsel submitted further that the defendant has clearly admitted receiving Exh.OU 09 properly addressed to the Head of Human Resources on the 4th of June 2012 and the defendant’s receptionist through whom it was received was a staff of the defendant who receives letter on behalf of the defendant. Therefore the defendant cannot turn around and engage in double speak by contending that Exhibit OU-09 was duly received by it or was not submitted to the Head of Human Resources. Claimant’s counsel argued that the court have held that the essence of service is notice and where it has been established that the other party has notice, any issue bordering on service or delivery of the correspondence must be held to be academic. He cited Saleh and Others Vs. Mohammed and Others (2010) 12 NWLR (Pt. 1209) page 613. It is further submitted that any lingering doubt as to the receipt of Exhibit OU 9 by the Head of Human Resources of the defendant is dispelled by exhibit OU 10 (defendant’s purported letter of rejection of claimant’s resignation) tendered by the defendant dated 4th June 2012 signed by the Head of Human Resources of the defendant which acknowledged receipt of the claimant’s letter of resignation on 4th June 2012 and purported to reject same. Counsel stated that it is therefore not in doubt that the defendant’s Head of Human Resources received the claimant’s letter of resignation on 4th of June 2012 and any counter argument by the defendant should be discontinued. iii. Defendant’s power to either approve or reject the claimant’s resignation It is submitted that the defendant now latches on to this, administrative requirement to confer itself with overriding powers to turn itself into a slave master with power to reject an employee’s – expressed wish to depart its service until at such time it so desires. He stated that the clause “seeking management’s approval for acceptance of a resignation” is a classic depiction of unfair labour practice frowned upon by all jurisdictions in the world. It is submitted that clause 22.3.1 in question makes vague reference to the defendant’s Head of Human Resources. Counsel submitted that from a cursory reading of clause 22.3.1, there is no definition of the circumstances under which an acceptance of a resignation can be refused, or any seeming delineation of management’s decision of accepting a resignation forwarded to it by the Head Human Resources. Counsel submitted further that such interpretation will obviously bring such clause in direct conflict with the Constitution proscription of forced labour in section 34 and the criminalization of this practice by section 73 of the Labour Act. Therefore urge the court to so hold. Counsel cited Article 2 of the Force Labour Convention of 1930 in support of his submission. On issue two: whether the defendant possesses the legal right and capacity to reject a tendered letter of resignation of an employee and whether purported rejection of the claimant’s resignation is an acceptable labour practice in view of the principle of freedom of labour under Nigeria labour jurisprudence? Claimant’s counsel submitted that in employment relationship (particularly in private employment which is based on a Master/Servant relationship) is a contract of personal service and is built on a foundation of mutual understanding between the parties. Being a contract of personal service, the parties are at liberty to rescind the contract at any time either party wishes and none of the parties can be compelled to remain in the relationship against his will for any reason whatsoever. Counsel cited the case of Chukwumah Vs. Shell Petroleum(Supra); Imoloame Vs. WAEC (Supra); UBN Ltd Vs. Ugboh (Supra). It is the submission of counsel that the actions of the employer constitute forced labour which is expressly prohibited under section 34 of the 1999 Constitution (as amended); Criminalized under section 73(I) of the Labour Act and also violates the Force Labour Convention of 1930, an international instrument which Nigeria has ratified. Counsel stated that force labour (even in it vague/thinly veiled form) also constitutes unfair practice contrary to best international labour practice. Counsel further submitted that the term Forced Labour not defined by the Labour Act or the 1999 Constitution (as amended). However, Article 2 of the Forced Labour Convention 1930 defines “Force Labour” to mean all work or service for which a person has not offered himself voluntarily. It is also submitted that Forced Labour Convention 1930 has been ratified by Nigeria and by virtue of section 254C (2) of the 1999 Constitution (as amended), this Honourable Court is empowered to apply all labour treaties which Nigeria has ratified, notwithstanding anything to the contrary in the constitution (including section 12 of the constitution). Counsel urge the court to rely on the definition of “Forced Labour” under the forced labour convention. Counsel contended that the defendant in paragraph 18 of exhibit OU-21 seeks to justify its purported rejection of the claimant’s letter of resignation on 2 grounds: i. There was an ongoing disciplinary proceeding against the claimant and he could thus not leave the defendant’s employment until the process is completed ii. The claimant’s letter of resignation was not in compliance with the procedure in the staff handbook and was thus invalid. Counsel submitted that an empirical study of Judicial decision on master/servant relationship will clearly show that there is no right at law vested on an employer to approve or reject an employee’s resignation of employment for any reason whatever. Counsel stated however that the decision to terminate an employment by an employee is his sole decision and is not dependant on employer’s ratification of such decision. Counsel cited U.B.N Plc Vs. Soares (2012) 11 NWLR (Pt. 1312) 550 at 578 Paragraph 6-H. where Okoro J.C.A (as he then was) stated as follows: “It is also true and common sense dictates that an employer cannot also prevent an employee from resigning his employment for whatsoever reason”. Counsel cited Ujam Vs. I.M.T (2007) 2 NWLR (Pt. 1019) 470 at 489 and Nigerian Gas Co. Ltd Vs. Dudusola (2005) 18 NWLR (Pt. 957. In Ujam Vs. I.M.T (Supra), Galadima J.C.A (as he then was) at page 489 stated as follows: “The court cannot compel the employer to continue to keep an employee it does not want. On the other hand, no employer could prevent an employee from resigning from his employment to seek elsewhere for “greener pastures”. Where termination is wrongful, the servant’s remedy lies in the claim for damages”. On issue Three: Whether the Defendant’s purported letter of termination dated 4th June 2012, which was never received nor acknowledge by the claimant is valid in Law? Counsel submitted that it is trite law that a letter of termination only becomes effective upon receipt by the party to whom it is directed. Counsel called in aid Chukwumah Vs. Shell Petroleum (Supra); Imoloame Vs. WAEC (1992) 9 NWLR (Pt. 265) page 303 at 318; UBN Ltd Vs. Ugboh (1995) 2 NWLR (Pt. 380) page 647 at page 664 -665. Thus for a letter of termination of employment by either party to be recognized by a court of law, there must be credible proof that it was served on and received by the party to whom it is directed. Counsel submitted further that the defendant has failed to show that the claimant ever received its purported letter of termination of employment dated 4th June 2012. The claimant asserted that he never received any letter of termination of employment from the defendant – albeit no such letter was required as the employment relationship had already been terminated by the claimant’ letter of June 1st 2012 received by the defendant on 4th June 2012. He submitted that in any event, this issue will only arise for determination where the claimant’s issue one above fails. Counsel submitted that under cross – examination, commenting on Exhibits 29A and 29B supposedly being the UPS proof of delivery of the defendant’s purported termination letter, DW1 testified that “Exhibits 29A is signed by one Elisha; Exhibits 29B is signed by the same Elisha; the full name of the claimant is Okechukwu Uwakwe. I don’t know Elisha”. Counsel submitted further that it is clear from DW1’s testimony that the defendant’s termination letter purportedly sent via UPS Courier was never communicated to the claimant at any point in time; as the document were received by a certain “Elisha” who admittedly is not the claimant. It is further submitted that this set of fact supports the claimant’s assertion in his pleadings that he is not in receipt of any purported letter of termination sent by the defendant even at the time of filing of the suit. Counsel submitted that DWI further testified regarding exhibit OU 030 A and B (being UPS tracking information and proof of delivery dated 14th June 2012) as follow: “there is no identity of the receiver on these exhibit OU -30 A and B” Counsel submitted that either way it is looked upon, the defendant’ s purported letter of termination dated 4th June, 2012 is ineffectual, null and void and achieves nothing in the context of the issues in this case. On issue four: whether the defendant has substantiated or in any way, manner or form established the allegation of gross negligence, lack of competence, or lack of integrity in the discharge of the claimant’s duties in the course of his employment with the defendant and particularly in the handing of the financial transaction in question leading to the disciplinary action against the claimant? Claimant’s counsel submitted that the defendant had impugned him with negligence. (paragraph 14 of the statement of facts). In response, the defendant admitted this fact and further averred that the claimant ought to have exercised diligence and prudence in a transaction involving a client of the defendant (paragraph 10 of the statement of defednce. It is further submitted that in CBN’S letter dated 28th June 2012 and admitted in evidence or as exhibit OU- 012, the CBN stated that by a letter dated 12th June 2012 written to it by the defendant, the defendant alleged that the employment of the claimant was terminated on account of the claimant’s discharged of his duties. Counsel submitted that he who asserts proves. He called in aid section 131 (I) of the evidence Act 2011 and the case of Agusiobo Vs. Okagbue (2001) 15 NWLR (Pt. 737) 502 at 520 paras B –C. It is further submitted that the effect of section 133 of the evidence Act is that once the claimant has introduced evidence to satisfy his assertion in the instant suit as contained in his statement of facts, the burden of proof then shifts to the defendant to adduce evidence to disprove the claimant’s assertion. Specifically, once the claimant has adduced evidence of his due compliance with laid down procedure for handing transactions the defendant’s company in the processing of the transaction in question, the burden then shifts to the defendant to adduce evidence in proof of its allegations that the claimant was negligence in his handling of the particular transaction in question. Counsel submitted that the defendant has the legal burden of proving the claimant’s negligence in the handling of the transaction in question as it not sufficient to simply allege negligence against the claimant without evidence in support. This is more so because where the employer makes allegations against the employee as the basis for the termination, the law imposes an obligation on such employer to prove such allegation to the reasonable satisfaction of the court otherwise such termination becomes wrongful. Counsel referred to the case of Osagie Vs. NNB Plc (2005) 3 NWLR (Pt 913)513; Olanrewaju Vs. Afribank (Nig) plc (2001) 7 S.C (Pt. 111) 1; Duru Vs. Nwosu (1989) 4 NWLR (Pt. 113) 24, Odumesi Vs. Oyenola (1988)8 NWLR (Pt. 563) 601 At 615 paras E-F ,Dung Vs. Chollom (1992) 1NWLR (Pt. 220) 738 at 743 paras F-G . It is submitted that DWI testified to being the secretary of the Disciplinary Committee that tried the claimant and allegedly found him guilty of his same allegation that DWI has no idea about. It is further submitted that DWI is also a member of the executive committee of the defendant that purportedly testified to the Disciplinary Committee’s finding of guilt against the claimant and DWI also signed the purported letter of termination attached to exhibit OU-024 yet DWI admitted to not having an idea what the claimant ought to have done or ought not or have done and what the claimant’s actual breach of negligence was. It is the further submission of counsel that the defendant who allegedly has in its possession an auditor’s report allegedly indicting the claimant would not even refer to it in the slightest manner in its pleading nor seek to tender such report during trial in proof of its allegations against the claimant. In support of his preposition counsel cited the case of Kode Vs. Yusuf (2001) 4 NWLR (Pt. 903) 392, Olufosoye Vs. Olorunfemi (1989) I NWLR (P 95) 26; Yusfuf Vs. Adegoke (2007) 11 NWLR (Pt. 1045) 332, Okwejiminor Vs. Gbakej (2008) 5 NWLR (Pt. 1079) 172. Counsel urges the court to disregard DWI’S testimony on this point. Claimant’s counsel submitted that the purported act of withholding information which the defendant refers to is an event that occurred before the claimant gained employment with the defendant. It is further submitted that the incident was never part of the allegations against the claimant at the disciplinary proceedings of June 1st 2012 which the claimant was made to face and at no point was such incident referred to during the disciplinary proceeding or at any point thereafter up to time of trial. Counsel also contended that the fact the incident was not even pleaded by the defendant in its statement of defence as the reason for its actions; exhibit OU -016 was also not pleaded neither was it communicated to CBN as the reason for the defendant’s action. Counsel cited section 1 (a) of the Evidence Act 2011, which stipulates that “The court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case” counsel also submitted that the evidence led by the defendant on the claimant’s apology in 2009 should be discountenance by this honourable court because (a) It was not specifically pleaded by the defendant in any of its pleadings or contained in any document front loaded by the defendant; (b) It is not in any way connected to the termination of the claimant’s employment and was not indicated by the defendant as the reason for the disciplinary proceedings or at any point in the whole transaction leading up to the instant suit; and (c) It is consequently too remote to be material in all the circumstances of the instant case. On issue five: whether there is any legal justification for the false, misleading and maliciously inaccurate communication made by the defendant to the Central Bank of Nigeria (CBN) alleging a purported termination of the claimant’s employment for gross negligence of duty and lack of integrity, none of which allegations have been proven nor shown to have any legal basis? Claimant‘s counsel submitted that if issue 4 above succeeds then the letter by the defendant to the central Bank of Nigeria (CBN) was improper unjustifiable and made in bad faith. It is submitted that clause 4. O Exhibit OU-026 only sanctions a failure by the defendant to submit the report on dismissed /terminated staff to the Central Bank of Nigeria and allowing proven fraudulent staff to resign. It must therefore be asked; was fraud ever alleged against the claimant? Counsel submitted that the records of the court would clearly show that no fraud was ever alleged or proven against the defendant, as the defendant itself has not in any way alleged fraud against the claimant. Counsel further submitted that the defendant never copied the claimant in the damaging letter written against him to the CBN, despite being aware that the letter would tarnish the image of the claimant in the Banking Industry. Counsel also submitted that the defendant’s report to the CBN was not only erroneous and unjustified but also malicious, vexatious and wrongful. He further submitted that the defendant cannot hide under exhibit OU-026 to justify the malicious nature of the letter. Exhibit OU -026 only requires a report, not a malicious representation of facts as the defendant has done in this case. Counsel called in support the case of Chief Williams Vs. Daily Times of Nigeria (1990) I NWLR (Pt. 124) 1, where the Supreme Court listed the categories of situations where exemplary damages could be awarded as: “a. Where statute prescribe them. b. Where oppressive, arbitrary or unconstitutional acts of a Government servant has given rise to the suit, and c. Where the defendant’s tortuous act has been outrageous or scandalous and was done with a guilty knowledge” counsel submitted further that exemplary damages was further explained by the Supreme Court in GFKI (Nig ) Ltd Vs. NITEL Plc (2009)13 NWLR (Pt. 1164) 244 at 373 paras E-F, 377 PARAS C-D. It is the further submission of counsel that the defendant clearly sent the letter of termination of employment maliciously and in bad faith. It was also submitted that the letter was outrageous, scandalous and was done with a guilty knowledge. Counsel cited Chief Williams Vs. Daily Times of Nigeria (Supra) Odiga Vs. Azege (1998) 9 NWLR (Pt. 566) 370 Allied Bank of Nigeria Ltd Vs. Akubueze (1997) 6 SCNJ 116. Counsel prayed the court to grant the exemplary damages sought by the claimant. On issue six: Whether the claimant is entitled to the monetary reliefs sought in his statement of facts? It is contended that the claimants claim for contributions made under the Kakawa staff contributory scheme is founded upon clause 20.3.1 of exhibit OU-011 (being the defendant’s policy manual) which provides as follows: “There is a staff contribution scheme managed by in – house trustee known as the Kakawa staff contribution scheme under which the company and every employee each contributes 5% of the employee’s monthly emoluments for investments in shares, stocks, money market instruments, etc.” Counsel submitted that in paragraph 38 of the statement of facts, the claimant has pleaded the following as his basic annual salary during the period of his employment with the defendant. It is also submitted further that by arithmetical calculation scheme for the claimant’s contribution to the Kakawa staff contribution scheme for the entire period of his employment with defendant is N788,554.2 (Seven Hundred and Eighty –Eight thousand, five hundred and fifty – four naira, Two Kobo). Counsel submitted that by clause 20.3.1 of exhibit OU-011, the defendant is also required to contribute a corresponding 5% of the claimant’s salary which also comes to N788,554.2 (Seven Hundred and Eighty –eight thousand, five hundred and fifty –four Naira, two Kobo) therefore, claimant’s contribution (N788,554.2) in addition to the defendant’s contribution (N788,554.2) amounts to N1,577,108.4 ( One million, five hundred and seventy-seven thousand One Hundred and Eight naira, four Kobo) Counsel further contended that the claimant also submitted that he is entitled to all profits and interests accruing from the contribution after his four years of employment with the defendant from February 2008 – May 2012. Clause 7 of exhibit OU-19 Provides: “If the member shall voluntarily leave the service of the employer or if he is given notice of termination by the employer, he shall be entitled to the benefit accruing from his own contributions plus accrued income as calculated by the Trustees”. In addition on completing 3 years in the service of the employer, the member is entitled to the benefit arising from the employer’s contributions in respect of him according to the following scale. Number of years in service percentage of the benefits secured by the employer’s contributions to which the member is entitled. Under 3 years Nil 3 years but less than 4 30% 4 years but less than 5 40% It is submitted further that the claimant also claims the sum of N2,000.000 (Two Million Naira ) as his terminal benefits due to him from the defendant. The claimant is entitled to i. Accumulated leave allowance N800,000 ii. Accumulated travel allowance N400,000 iii. Gratuity N800,000 Total N2, 000,000 Two Million Naira) It is the counsel submission that the claimant further seeks as his severance allowance. However the claimant also seeks the sum of N5,000.000 (five million naira being exemplary damages to the claimant for injury to this reputation and integrity built over the years in the defendant employment in consequence of the conduct of the defendant in alleging, unproven negligence of duty against the claimant in its letter to the Central Bank of Nigeria, which said allegation has harmed the claimant in the Banking and financial sector. Finally the claimant counsel contended that they have extensively and elaborately demonstrated by legal and factual submissions that the defendant has totally failed to disclose the legal basis for the rejection of the claimant’s resignation and failed to disclosed a case of negligence against the claimant. That counsel has demonstrated the validity of the resignation of the claimant as well as the uprightness of the claimant in the discharged of his duties contrary to the allegation of negligence made against him. Counsel submitted that all these have sufficiently established the claimant’s entitlement to the reliefs sought in the statement of facts. It is submitted therefore that the claimant has satisfactorily demonstrated his entitlement to the reliefs sought and respectfully invite the court to grant the claimant all the reliefs sought as well as substantial cost in favour of the defendant for cost incurred in this action. I have heard counsel on their various arguments and submissions before the court, the fact of this case briefly put is as follows: The claimant who was an employee of the defendant was in the course of his duties accused and alleged by his employer of gross negligence, incompetence and lack of integrity in the discharge of his duties. Consequently, he was summoned to Lagos without disclosing these allegations to him beforehand where he was made to face a disciplinary committee on the 1st of June 2012. Not satisfied with the way and manner he was treated by the defendant his employer, the claimant tendered his resignation on the 4th day of June 2012 in a letter dated the 1st of June 2012 at the Abuja office of the defendant. The defendant through an email dated the 4th of June 2012 promptly rejected the letter of resignation asking the claimant to await the outcome of the defendant disciplinary committee’s report. Meanwhile the defendant terminated the employment of the claimant on the 4th of June 2012 and proceeded to communicate same to the Central bank of Nigeria on the 12th of June 2012. It is against this background that the claimant had approach this court seeking several reliefs as stated in his originating processes; The law is that civil cases are determined on the balance of probabilities. It is the primary duty of this court to place each of the parties case on an imaginary scale of justice to determine whether the scale tilt more in weight. The fact of every case depends on the pleadings and the evidence led in support as he who alleges must prove; See the case of Esiegbe Vs Agholor 1993 9 NWLR Pt. 396 at 150. The duty therefore of the court is to assess the evidence before him to see whether or not the claimant has sufficiently discharged the burden of proof in a case. See the case of Leventis Motors Ltd Vs. Numieh 1999 13 NWLR (Pt 634) 235 The lone question that calls for determination then is whether or not the claimant has proved his case based on balance of probabilities and preponderance of evidence to entitle him to judgment in all the heads of claim. The argument of the defendant is that the claimant has failed to prove his case and so she is not entitled to any of the reliefs claimed. Case Law authorities are clear that as part of the conditions an employee need to prove when complaining about unlawful or wrongful termination or unfair labour practice is who can appoint him and who can remove him and that his appointment or employment has not been validly determined in accordance with the terms of the contract of employment. See the case of UJAM Vs.IMT 2007 2 NWLR Pt. 1019 470 CA. The court in the case of NRW Industries Ltd VS.Akingbulugbe 2011 NWLR (Pt. 1257) CA. has held that an employee who seek a declaration that the termination of his employment was wrongful must prove the following material fact: (1). That he is an employee of the defendant (2). The terms and conditions of his employment (3). The way and manner and by whom he can be removed (4). The way and manner the terms and conditions of his employment were breached by his employer. It is not the duty of the employer to prove any of these facts. See the cases of Afribank Nig. Plc Vs Osisanya 2000 1 NWLR Pt. 642 592 CA; Adams Vs. LSDPC 2000 5 NWLR Pt. 656 291 CA; Kamel Metal Nig Ltd Vs Ativie 2002 10 NWLR Pt. 775 250 CA; Eruokpae Vs. University of Benin 2002 17 NWLR Pt. 795 139 CA. It is also the law that more than one document may make up the terms and condition of service in a contract of employment. See also the case of Ladipo Vs. Chevron Nig. Ltd 2005 1 NWLR (Pt. 907) 277 CA. It is also the law that the court is not entitled to look outside the contract of service as to the terms and conditions. These must be gathered there from and /or from other resources which can be incorporated by reference to the contract as the case may be. It is the best and only way to deciding the rights of the parties under the contract. See the case of Idoniboye Obu Vs. NNPC 2003 2 NWLR Pt.805 Pg 589 at Pg 600 Paragraph B-D. So also in the case of Famakinwa Vs. T.A NIg. PLC 2007 WRN Vol. 18 36 at 40 Page 49 line 15 – 25. The Court of Appeal held thus; “It is trite law that when an employee complains of wrongful termination of employment by his employer, he has the onus to prove the wrongful termination of the said contract of employment by – placing before the court the terms and condition of the contract of employment and proving in what manner the said terms were breached by the employer” It is very clear here that the employment in question borders squarely on master servant category. The central document governing the relationship of the contracting parties are the letter of employment which is exhibit 015 and the staff handbook which is exhibit 011. In exhibit 015 which is the bedrock, the foundation and pedestal of the contract of employment has a termination clause as follows “This appointment may be terminated by either party at any time by giving one month notice in writing or payment of one month salary in lieu of notice” At the last column of exhibit 015 under the heading “Acceptance” the claimant signed as follows “I accept the terms and condition of the above offer of employment. I shall be resuming work with Kakawa Discount House Limited on 04-02-08. This acceptance of the terms and condition of the employment was accepted and endorsed accordingly by the claimant on the 29th of January 2008. By exhibit 09, the claimant purportedly resigned his appointment offer appearing before the disciplinary committee in Lagos. By clause 22:3.1 of exhibit 011, which is the staff handbook, the claimant is supposed to hand over his job schedule to his head of department, pay one month salary in lieu of notice and handover the resignation letter to the Head of Human Resources who will notify management and seek necessary approval for the acceptance of resignation. A careful look at the exhibit 09 which is the claimants resignation letter did not (1). Say anything about the payment of one month salary in lieu. That is, the claimant did not conform with the accepted terms of his engagement as stated in his employment letter which is exhibit 015. (2). There is no mention of the claimant handing over of his job schedule to anybody or even his head of department as stated in the staff handbook; (3). The claimant did not wait for the reply to his resignation as stated in the handbook. From the evidence before the court the claimant dropped exhibit 09 with the desk officer and left against the background of the fact that he was dissatisfied with the way he was treated at the Lagos Headquarters of the defendant. What then is the status of exhibit 015? My take on it is that it falls short of the requirement of exhibit 015 and 011 and therefore the purported resignation is of no moment. Moreover, the said resignation was tendered after the claimant appeared before the staff disciplinary committee. This attitude and action immediately thereafter can be viewed as an attempt to prompt and overreach the employers. This is against equity and law and is therefore contrary to the spirit of fair labour practice. What then is the status of the letter of termination which is marked as exhibit 024? The contract of service documents stipulates the procedure to be adopted in trying to discipline an erring employee by the defendant; Such procedure in law, must be strictly followed; The letter of termination of appointment did not state the reason for so doing. But in exhibit 012, which is a letter from the Central Bank of Nigeria to the claimant, it was disclosed that the defendant wrote a letter dated the 12th day of June 2012 to the Central Bank of Nigeria notifying it of the fact that the claimant’s employment was terminated on ground of gross incompetent and lack of integrity in the discharge of his duties. Since this reason emanating from the defendant has come to the fore and to the knowledge of the court, the court cannot close its eyes to it; The Law in Nigeria is that while an employer is not enjoined to give reason for termination of employment, where however he chooses to give a reason for such termination of an employee, it lies on that employer to justify the reason if challenged. See Angel Shipping & Dyeing Ltd Vs. Ajah 2000 13 NWLR (Pt. 685) 532 CA; Afribank Nig. Plc Vs. Osisanya 2000 1 NWLR (Pt. 642) 592 CA. For giving the reasons of gross incompetence and lack of integrity, the defendant is bound to justify them. Did the defendant succeed in doing this? This remains the question. As part of the defendants duties and responsibilities, it had to communicate the disengagement of the claimant’s employment to the Central Bank of Nigeria by virtue of clause 4.0 of exhibit 02 which is the Code of Ethics and Professionalism in the Banking and Finance Industry. The aim of the Code as stated in the preamble is to bring about discipline and professionalism in the industry. By clause 4.0 (iii) (d) failure to submit report on dismissed/terminated staff to Central Bank of Nigeria and allowing proven fraudulent staff to resign is contrary to the provision of the Code. In essence the letter written to the Central Bank on 12th June 2012 on the termination of claimant seems to comply with the provision of exhibit 026. But the question of justifying the reasons for the termination is still begging for answers. By paragraph 9, 10,11,12,13,14,15,16 (all sub paragraphs inclusive) 17, 18 and 19 of exhibit 01 which is the adopted witness statement on oath of the claimant, there is the testimony that the process leading to the transaction in question passed through all checks and levels of supervision before he posted the amount on the 3 in web software in line with the defendants operational manual; Paragraph 18 of exhibit 01 explicitly says: “that the transaction in contention, the subject matter of the allegation against him valued at N35M withdrawn by a client of the defendant, was treated in line with the procedure highlighted in paragraph 16 above and passed through all relevant controls, checks and approval without any red flag raised at any stage by any of the staff through which it passed’. The multilayer control and processes stated in paragraph 16 of exhibit 01 has about 6 controls. By paragraphs 11,12,13,14 and 15 of exhibit 02 which is the defendant witness statement on oath, the defendant stated that the claimant withheld vital information from the defendant in the course of his official duty, responsibility and transaction conducted by him, thereby putting the defendant at great risk. The nature of the risk is not disclose; The nature and character of the vital information withheld by the claimant is not also revealed in evidence. The audit report and the report of the disciplinary committee held in Lagos over the claimant were not also provided for the court to see or justify the reasons culminating or aggregating to “gross incompetence and lack of integrity” as defined by the defendant; moreover, by paragraph 11 of exhibit 02 the DWI stated that two other staff who were involved in influencing and prevailing on a customer of the defendant to terminate a monetary investment of N35M with the defendant and diverting the investment to their personal project were revealed by the audit investigation. It is clear to the court that the claimant is not mentioned in that alleged act. The claimant was said to be grossly incompetent and lack integrity. The exhibits before the court shows, he was confirmed as a permanent staff on 18th March 2009 by exhibit 04, he was awarded merit increment on July 2nd 2009 through exhibit 05, he was given compensation review in wages as a thank you measures through exhibit 06; he was again given merit increment in recognition of performance through exhibit 07 on February 1st 2012; only to be described as grossly incompetent and lacking in integrity in June 6th 2012. Furthermore, in the proceedings before the panel in Lagos, there is no evidence before the court as to the claimant being notified with sufficient particulars of the changes he was being invited to Lagos to face. In compliance with the rule of natural justice and fair hearing, a person likely to be afflicted directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. See the case of ATA Poly Vs. Maina 2005 10 NWLR (Pt. 934) 487 CA From the available evidence in the trial of this suit, the defendant has fallen short of this standard constitutional requirement in its dealings with the claimant. The allegation of gross incompetence also borders on a staff being inefficient in the discharge of his official duties and responsibilities. Paragraph 21:7:1 of the staff handbook which is exhibit 011 has this to say “Where an employee is found to be inefficient, his attention will be drawn to the shortcomings in writing by the manager. If inefficiency continues, a recommendation for final warning should be made to the Head of Human resources who will issue the warning stating that if there is no improvement in his performance within three months, his services will be dispense with; If at the end of these period, no improvement has taken place, then, the employee’s services should be terminated on grounds of not being up to the standard required by the company” It is on record that there is no such opportunity given to the claimant in this case. For the reasons stated so far I hold that the termination of the claimants employment through a letter dated the 4th day of June 2012 but communicated on telephone on the 6th of June 2012 by Mrs.Abatan is wrongful; But due to the fact that a salary of one month in lieu has already been paid to the claimant, the court cannot award any further damages as doing so will amount to double compensation; See the case of CCB Nigeria Ltd Vs. Okonkwo 2001 15 NWLR Pt. 735 114 CA; It is also the law that where an employee is able to establish that his employment was wrongfully terminated, he would be entitled to damages and this would be what was due to him for the period of notice since it is not an employment with statutory flavor where reinstatement can be ordered. See the case of Isievwore Vs. NEPA 2002 13 NWLR (Pt.784) 417 SC; Angel Shipping & Dyeing Ltd Vs. Ajah (Supra) laid down the principle that an employee is entitled to any other legitimate entitlement due to him at the time the employment was brought to an end apart from the salary in lieu of notice which in this case have been paid; The court in master and servant relationship cannot compel an unwilling employer to retain any worker. See Ativie Vs. Kabel Metal (Supra). Before I delve into the issue of other entitlements, allowances and bonuses strenuously canvassed by the claimant counsel, let me make a brief remark on the claim for damages for injuries to reputation; A thorough perusal of the law setting up this court, i.e the National Industrial Court Act 2006 and the third alteration to the 1999 Constitution (as amended) section 254(i) (c) has not made any provision wherein this court is empowered to delve and adjudicate on such issues; I take this stand because, injuries to reputation or any claim bothering on integrity and competence or otherwise of a person as alleged and communicated to a third party by the defendant in this case involves ingredients of defamation. I do not think this court has the jurisdiction to try any case relating to defamation. Agreed, from the facts and circumstances of this case, the alleged incident happened in the work place and is connected with labour. But the question to be ask is, what law will I use in addressing the issue before assessing the quantum of damages? Surely it is the law of tort of which, clearly this court has no jurisdiction; Furthermore it is not all workplace issues that confers jurisdiction on this court, particularly when the law to be applied is not labour law. It is the same when murder occurs in the workplace. Certainly, the court has no jurisdiction on such; It is on the basis of this position and reality that I hold that this court has no jurisdiction on the issue of defamation. Consequently, the case of Onah Vs. NLC 2013 33 NLLR (Pt.94) Page 104 cited by the claimant counsel though persuasive cannot be called in aid by that submission. On the issue of entitlements, bonuses, leave allowances and terminal benefits I have looked at the various exhibits, particularly the handbook, which is exhibit 011, exhibit 024, exhibit 027, exhibit 20 and exhibit 19. What I can deduce from the perusal of these documents are as follows; (a) There is nowhere in the handbook where the issue of severance allowances was specifically mentioned as it pertain to the category of the class of the claimant whose employment was terminated. (b) Issues of bonuses and leave allowances even though are referred to in the defendant’s handbook i.e exhibit 011, the claimant has not shown by evidence which and how he is entitled to the claims. (c) In respect of terminal benefits referred to in the claimants pleadings, the evidence led so far has not revealed any such entitlement. Exhibit on 011 which is the defendant’s handbook and exhibit 015, the offer of employment letter has not created any specific obligation under such claims. The claimant has made such reference to the Kakawa Contributory Scheme. In Exhibit 019 The Trust Deed of the defendant, it is crystally clear that the defendant has the absolute control over the Scheme. This is so because, the power to appoint and remove the trustee rest absolutely on it; This can be seen in paragraphs 3,4,5 and 6 of exhibit 019. By paragraph 10 of the exhibit, the trustees who are to manage and run the affairs of the scheme on a daily basis are agents of the defendant as all expenses incurred in the management of the scheme shall be defrayed by the defendant and all claims incurred in the process of administering the scheme shall be indemnified by the defendant The agreement therefore by the defence counsel to the effect that the scheme is a separate entity for the purpose of liability cannot hold; The claimant therefore is entitle to claim any legitimate right due to him from the defendant who is a disclosed principle under the law of agency. However, in response to the Subpeona issued against the defendant contributory scheme, the defendant tendered exhibits 019 and 020. A look at exhibit 018 also reveals the statement of account. The defendant have produced exhibit 024 and 027 to show that the claimants entitlements have been paid. The law is that once the defendant has produce the relevant documents of which he was subpeoned to produced, it is the duty of the claimant then to impugned on such documents if they do not represent the truth thereof. In my humbly assessment, the claimant have not been able to do so. The monetary reliefs stated in the statement of facts i.e the pleadings without more cannot ground the proof for the claimant. Section 168 (d) of the Evidence Act cited by the claimant counsel, in that regard cannot avail him because the defendants have been able to produce exhibit 019,20,24 and 27 which goes to show their stand on the financial status of the claimant with the defendant; Consequently I cannot see any such liability as claimed by the claimant in such exhibits, similarly the claimants had claimed accumulated leave allowance and gratuity. Evidence ought to have been led to buttress and prove such specific claims. In the absence of such proof, the court cannot hold such pleading or address of counsel as evidence. From the totality of the evidence before the court, issues 4,5,7 and 6 formulated for determination by the claimant counsel are resolved in the negative, while issue 2 and 3 thereof are resolved in the affirmative. On the issues submitted for determination by the defendant counsel in his written address, issues 1 and 4 are resolved in the negative while issues 2, 3 and 5 are resolved in the affirmative. On the whole, judgment is hereby entered in this suit as follows: (1) It is declared that the whole proceedings adopted by the defendant in relation to the determinations of the claimants’ employment including the proceedings of the disciplinary committee and the reasons advanced for the termination are wrongful. (2) It is further declared that the claimant was not in no way negligent or incompetent in his handling of the financial transaction leading to the disciplinary action by the defendant. (3) All other claims fails and are accordingly dismissed. (4) There shall be N50, 000.00 cost against the defendant but in favour of the claimant. ----------------------------- Hon. Justice P.O Lifu JP. Judge