NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL
COURT OF NIGERIA
IN
THE LAGOS JUDICIAL DIVISION
HOLDEN
AT LAGOS
SUIT NO NICN/LA/442/2022
BEFORE
HIS LORDSHIP, HON. JUSTICE (DR.) I. J. ESSIEN
DATE: 21st July 2026.
BETWEEN
JOY EJEKE Claimant
AND
UNITED BANK OF AFRICA Defendant
JUDGMENT.
The claimants commenced this action by
an amended General Form of Complaint
dated the and filed on the 8/2/2023. In the complaint the claimant sought the
following relieves from the court:
1.
A declaration that the
action and/or decision of the defendant transferring liability of the
defendant’s company on the claimant for money approved and paid out in the
ordinary course of defendant’s business is illegal, wrongful, unlawful unfair labour
practice and null and void.
2.
An order directing the
defendant to reverse all unlawful debit entries in the claimant’s salary
account number 1006932946 (old account
number 09990080020115) with regards to the illegal terminal debt
liability imposed on the claimant,
3.
An order that the running
interest unilaterally imposed on the Claimant’s account is wrongful, illegal
null and void.
4.
An order compelling the
defendant to refund a total sum of N4, 290, 027 (Four Million, Two Hundred and
Ninety Thousand, Twenty – Seven Naira on|) being money unlawfully/wrongfully
deducted from the claimant’s account.
5.
An order compelling the
defendant to pay the claimant the sum of N3, 109 045.86. (Three Million, One
Hundred and Nine Thousand, forty Five Naira, Eighty Six kobo) as her gratuity.
6.
An order compelling the
defendant to pay the claimant the sum of
N
2, 150, 000.00 (Two Million, One Hundred and Fifty Thousand Naira only) being
the Claimant’s terminal benefit as determined by the defendant
7.
A declaration that the
defendant breached the banker customer relationship between her and the
claimant by disallowing the claimant access and use to her money through
wrongful deductions or withholding of the claimant’s money.
8.
An order compelling the
Defendant to pay the claimant the sum of N10,000,000 for breach of the
banker/customer Agreement to the claimant.
9.
An order compelling the
defendant to pay the claimant the sum of N20,000,000.00 (Twenty Million Naira)
as punitive and exemplary Damages for the unjust withholding of the unpaid
terminal benefits, gratuities, entitlement and for illegal and unlawful
deductions from the claimant’s salary account.
10.The
sum of N10, 000,000 (Ten Million Naiara) only being damages
for the psychological trauma and
untold hardship suffered by the
claimant as a result of the
defendant’s unfair labour practice and
unnecessary with holding of the
claimant’s entitlement.
11.
Interest on the above sum of the rate of 20% per annum from 2022
until judgment and thereafter at
the rate of 40% per annum until the
judgment debt is fully and finally
liquidated.
12.
Special damages of N5,000, 000 (Five Million Naira) only as cost of
this action.
The complaint is supported by statement
of facts and a witness deposition of the claimant. Also in support is a list of
frontloaded documents.
Upon the service of the complaint on the
defendant, the defendant filed a Statement of Defence and a counter claim on
the 31/3/2023 along with the witness statement on oath of the defendant
witness. Also in support are frontloaded documents. The defendant filed an
additional list of witnesses along with a witness deposition of the witness on
the 9/5/2025. Also the defendant filed a witness deposition in support of the
counter claim on the 9/5/2025.
Hearing in this matter commenced on the
15/3/2025. The claimant testified as CW1. She adopted her witness deposition
filed on the 8/2/2023 and went on to tender the following documents in
evidence;
1.
Letter of appointment
Exhibit C1
2.
Confirmation of appointment
Exhibit C2
3.
Notice of resignation
Exhibit C3
4.
Computation of Terminal
benefit Exhibit C4
5.
Letter of caution Exhibit C5
6.
Letter of Consent to book
N2,400,000 on the claimant account is Exhibit C6
7.
Request to send revised
letter of consent is Exhibit C7
8.
Claimant statement of account
Exhibit C8
9.
Letter of Appeal Exhibit C9
10
Reply to the letter of appeal is Exhibit C10
11
Solicitor letter of demand is Exhibit C11
12
Response to solicitor letter of demand is Exhibit C12
13
Certificate of compliance is Exhibit C13.
CW1
was cross examined by the defence counsel and thereafter the claimant closed
their case.
The defendant opened their case on the
12/3/2026. Eniola Ogunmolawa who described herself as a staff of the defendant
and the Team Lead Work Place Ethics of the Human Resources Department of the
defendant testified as DW1. He adopted his witness deposition filed on the
9/5/2025, and went on to tender the following documents in evidence:
1.
Notice of Resignation as
Exhibit D1
2.
Response to resignation as
Exhibit D2
3.
Letter of Consent to book
the claimant with indebtedness as Exhibit D3
4.
Letter of caution is Exhibit
D4
5.
Email letter of 23/10/2015
Exhibit D5
6.
Claimant statement of
account as Exhibit D6a and b
The witness was cross examined by the
claimant counsel and thereafter the matter was adjourned for adoption of final
written addresses.
The Defendant filed their final written
address on the 26/3/2026. The address was served on the claimant on the 30/3/2026.
The claimant failed to file a final written address The defendant final written
address was adopted on the 9/6/2026 and thereafter the matter was adjourned for
judgment.
BRIEF FACTS IN ISSUE.
The case of the claimant as deduced from
the statement of facts is that the claimant was employed on the 19/3/2007 as an
Assistant Banking Officer and the
appointment was confirmed in the latter of 7/12/2007. The claimant rose through
the rank to become the Operation Manager of the defendant until her forced resignation
form the services of the defendant. In the course of her work and on the
26/2/2016, one of the bank customer Mrs Onari Duke the wife of the former
Governor of Cross River State Mr Donald Duke, visited the bank to conduct a
transaction. Although the customer came in late, she was still allowed to
conduct her transaction. She was directed to see the claimant and on seeing the
claimant, Mrs Duke repeated her demand to see the Business Manager (BM). The
claimant informed her that that she may not be able to meet with the BM since
it was already past 4pm.However, if the purpose of seeking to meet with the BM
is in respect of her transaction, Mrs. Duke could be rest assured of having her
transaction treated without any delay. The claimant allege that Mrs. Duke
suddenly became so furious and told the claimant to start looking for a new
job. The claimant became confused but didn’t consider it as much a threat until
the claimant was summoned alongside the FTO and a Security Guard on duty to the
Head office at UBA House, 57 Marina, Lagos based on the complaint filed by Mrs
Duke. The claimant, the Funds Transfer Officer (FTO) and a security guard were
summoned the head office of the defendant. At the head office the claimant was
verbally abused and was asked to resign immediately or be dismissed. The
Claimant position is that the defendant policy is not to attend to any customer
after closing hours despite that this Mrs Duke was given the privilege to go
into the banking hall to conduct her transaction. The Claimant states that the
defendant company neither investigated the complaint nor give the claimant the
opportunity to be heard on the complaint before advising the claimant to put in
her resignation letter for failing to attend to the request of a ‘high profile
personality’. The claimant position also is that at the time of the incident
that led to her forceful resignation she was not aware that Mrs Onari Duke
apart from being the wife of former Governor of Cross River State. She was also
a Non Executive Director of the UBA plc, which fact explains the constructive
dismissal of the claimant without being heard by the bank. The claimant story
is that at the beginning, the claimant had chosen to endure the harsh work
environment and bear the mental and emotional anguish she was subjected to just
to be able to put food on her family’s table as the breadwinner of her family.
During the cause of this travails, the defendant, through her Human Resource
officer – Obi lbekwe advised the claimant on the 1st March, 2016 to resign with immediate effect
failing which the defendant’s management would summarily dismissed the claimant
and register her name in the CBN Black Book. The claimant avers that
apprehensive of imminent dismissal, coupled with the unending victimization,
harassment, hostility, and harsh working environment; and primarily based on
the advice of the defendant through Obi lbekwe, the claimant was forced to
hurriedly put in a handwritten resignation letter dated 1st March,
2016 against the claimant’s free will. The FTO and the Security guard on duty
on the said day was also dismissed form the defendant employment. The claimant
states that having been forced to resign, the defendant advised through a
letter reference number UBA/HCM/TAP/SA/T1]0004 dated March 18, 2016 advised
that the claimant’s terminal account position (current account 1006932946) with
effect from the date of exit is N1, 500, 644.6. That sometimes in 2015 the
defendant staff in the ordinary course of business approved and authorised an NIP
transfer and cash withdrawal which turned out to be a fraudulent withdrawal by
a fraudster who had posed as the original holder of the account. The defendant penalised
the claimant and directed the sum of N2,400,000
be paid by the claimant and in order to
enforce the repayment sanction, the
defendant forced the claimant to issue an authority letter to debit the
sum to the claimant personal account No. 09990080020115. As a loan and which
account was latter restructured to the current account No 1006932946. The
claimant states that he never had any overdraft rom the defendant and the
terminal debt obligation are the forceful debits into her account in brazen
breach of fair labour practice. That upon the debit into the claimant account
the defendant has been deducting the sum of N50,000 as purported terminal debt
from the claimant account. The claimant also allege that on the 8/6/2016, the
defendant also wrongfully debited the sum of N2, 150, 000 from the claimant’s
account as a purported Terminal Debt obligation which the defendant
deliberately imposed on the claimant by coercion. That again on the 8th
of March, 2019, one Ugorji Oyinyeamara Esther transferred the sum of N100,
000,00 into the claimant’s account for a transaction. All efforts made by the
claimant to withdraw the money proved abortive as the defendant withheld the
money. The claimant allege that the defendant also wrongfully deducted several
sum of money at various dates to the tune of N1,790,027.03k as highlighted on
her statement of account, The claimant state that the wrongful deduction were
done in breach of bank customer relationship and the deduction continued until
the filing of this action as the defendant has so far deducted the sum of
N4,290,027,027. The claimant posits that between January 25, 2016 and 3rd
October, 2022, the defendant had also imposed several inconsistent interest
rate on the claimant’s account under the guise of “running interest on Terminal
Debt Obligation.” The defendant has
deliberately plunged the said account into a debit of N5, 595, 267.44 with
interest still running till date. Meanwhile, there was no agreement on interest
between the claimant and the defendant. The claimant position is also that in
the letter of caution issued to the claimant, the management of the defendant
required the claimant to reimburse the defendant the sum of N2, 400, 000. 00
However, the entire money deducted from the claimant’s account is N4, 290, 027k
thereby over debiting the claimant account with an excess sum of N1, 890,027.
The claimant also stated that he wrote two letters of appeal on the 1/3/2016
and on the 21/7/2016. Against her forced, unfair and constructive dismissal and
pleaded with the management of the defendant to reconsider their position. But
in the defendant refused to consider the claimant plea and appeal. That after
the claimant left the defendant employment, the defendant kept harassing the
claimant through phone calls to pay the sum of N3,417,693.71 representing an
amount into which the defendant had plunged the claimant’s account as at 30th
September, 2020 excluding the purported interest thereon. The claimant
thereafter caused his solicitors to formally demand the regularisation or
refund of various sum of money illegally and/or wrongful deducted from the
claimant’s account under the guise of purported terminal debt obligation
imposed on the claimant. The claimant position is that the defendant breached
her duty to provide a safe and secure work environment to the claimant by
exposing the claimant to undignified and discriminatory treatment. The
defendant refused to pay all the entitlements, benefits and gratuity that could
have cushion Claimant’s hardship despite the claimant’s 9 year-unbroken-service
record. The claimant position is that the practice of holding the defendant
staff responsible for the loss incurred in the defendant’s bank ordinary course
of business, without more, amount to unfair labour practice. The claimant
posits that the refusal to pay the claimant her gratuity has caused untold
hardship on the claimant who has not been able to secure another job.
The defendant on the other hand denies
all the allegations of facts put forward by the claimant in this action. The
defendant states that the defendant was not
forced to resign and the claimant resigned to seek alternative employment in
other financial institution, The defendant denies any incident following the
visit of Mrs Owanari Duke to the Defendant’s Redemption Camp branch during the
normal banking hours relating to any verbal assault or resignation of the
Claimant or any of the Defendant’s staff. The defendant denies constructively
dismissing the claimant upon complaint from Mrs. Owanari Duke or any customer
or person as there was no formal or informal complaint made against the
Claimant,, hence there was no basis/need to investigate any complaint or set up
any disciplinary panel or arrive at any decision to dismiss the Claimant in any
manner: whatever. The defendant also denied that they subjected the Claimant to
any harsh treatment whatsoever, humiliation or threat of being sacked by any of
its officers, neither did they advise
the Claimant to resign or communicate to the Claimant through Obi Ibekwe or any
other person or in whatever manner any intention and/or threat to dismiss her
from her employment as there are laid down formal and not informal regulations
and procedures for exiting a staff that has erred and in the circumstance of
the Claimant, no communication was required as she did not err at the time of
her resignation. Rather, the Claimant for reasons best known to her voluntarily
resigned from her employment vide a letter dated 1st March, 2016. The
defendant position is also that the Claimant who in her usual absent
mindedness and lack of dedication negligently honoured unauthorized
fraudulent NIP transfers and cash withdrawal by an impostor totalling
N4,800,000.00 (Four Million, Eight Hundred Thousand Naira) from the savings
account of one of the Defendant’s customers Tobechukwu Samuel Okafor, thereby
causing financial hardship on the Defendant and consequent upon which the
Claimant was required to reimburse the Defendant the sum of N2,400,000.00 (Two
Million, Four Hundred Thousand Naira) vide a letter of caution issued against
the Claimant. The state that the claimant was never coerced into taking a loan
in the sum of N2,400,000.00 Rather, the Claimant applied and consented to
taking the loan with repayment to be spread over a 48 months period from
October 2015 from her account maintained with the Defendant to enable her
offset her indebtedness in the sum of N2,400,000.00 which was used to reimburse
the Defendant due to the Claimant’s negligence of honouring unauthorized
fraudulent NIP transfer. That it was the claimant letter of consent that
authorized the Defendant to book the loan of N 2, 400, 000. The defendant
posits that all deductions that were made from the Claimant’s account were
legal and in line with the loan of N 2,400,000 availed the Claimant on her
instructions vide her letter of consent dated 8th September, 2015.
The defendant denies ever preventing the claimant from having access to her
account, That as at November 30 2022, the claimant is indebted to the defendant
in the sum of N5,595,67.44
The defendant also contends that the
claimant knew that as a bank the defendant would charge interest on the loan
granted by it and made demand for the payment of the loan after the exit of the
claimant from the employment of the defendant. That the claimant terminal
entitlement was used to partially offset the loan she owed the defendant at the
point of her exit. That at the point of exit the claimant was advised in the
letter of 18/3/2016, that her total indebtedness is in the sum of N5,595,67.44
The defendant counter claims this sum in this action. This represents the
contending issues in this action.
ISSUES FOR DETERMINATION.
The claimant counsel did not file a
final written address in this matter. The defendant in their final written
address raise a preliminary point to the effect that the claimant filed a reply
dated 14th April, 2023 to the defendant’s consequential amended
statement of defence and counterclaim but failed, refused and neglected to
adduce any evidence in support of the aforementioned pleadings by not adopting
the 2 witness statement on oaths dated 17th April, 2023 respectively
filed in support of them. It is the defendant’s submission that the failure and
refusal to adopt the 2 witness statements on oath aforementioned is fatal to
the Claimant’s case as it renders her reply dated 14th April 2023 to
the Defendant’s consequential amended statement of defence and counterclaim
abandoned. Counsel argues further that the defendant’s consequential amended statement
of defence and counterclaim dated 29th March, 2023 stands
unchallenged and therefore deemed admitted by the claimant. Let me state that
the record of the court show that at the trial claimant in this action relied
on the witness deposition dated the 8/2/2023 accompanying the amended general
form of complaint. The deposition of the claimant filed on the 17/4/2023 is
deemed abandoned along with the reply having not been relied upon by the
claimant during trial.
See the case of Abubakar V. Joseph
[2008]13 NWLR (Pt. 1104) Page
307 @ 357, Paragraphs D – E
However, let me state that the fact of
abandonment of the reply and the deposition cannot amount to admission of the
claim of the defendant as contained in the consequential amended statement of
defence and counter claim. This so because the issues in the counter claim are
adequately raised in the amended statement of facts and the claimant deposition
in support of the facts. Therefore, this court would proceed on the
understanding of resolving the question for determination in this case based on
the issue joined on the facts by the pleadings and evidence led in proof of the
facts by the respective parties to this action.
The defendant in this case formulated 2
issues for determination. I have carefully considered the issues. The issues
formulated to wit; (i) Whether in the circumstances of this case, the
claimant has sufficiently proved her claims against the Defendant? And Whether in the circumstances of the
case, the Defendant has proved its Counterclaim and entitled to same?
are general statement of the duties of a
court in the resolution of the dispute before the court. The issues as
formulated above do not bring out the salient issues on the area of conflict
which issue has been joined and which needs to be resolved. This court
therefore formulates the following issues for determination:
1.
Whether the claimant was
pressured, or forced to resign her appointment base on the incident of 26th
February 2016 thus amounting to constructive dismissal of the claimant.
2.
Whether the defendant can
debit the claimant with loss occasioned in the course of banking operations and
thereafter use the debit to deny the claimant of her terminal benefits.
3.
Whether the claimant is
entitled to the monetary reliefs claimed in this suit.
4.
Whether the defendant is
entitled to counterclaim the sum outstanding as part of the defendant loss
debited to the claimant account.
ISSUE 1,
The case of the claimant is that on the
26/2/2016, Mrs Ownari Duke a customer of the bank and a person whom the
claimant describes as a high profile customer of the bank visited the
Redemption Camp branch of the defendant to conduct a transaction. The evidence
is that this person is also a non-executive director of the bank at that time. She
arrived the bank past banking hours but was still allowed entry into the bank
since she had called before coming which call was not made known to the
claimant. The Funds Transfer officer (FTO) tried to attend to her, but she
insisted on seeing the Branch Manager (BM). She was directed to see the
claimant who tried to assist with her transaction, but Mrs Onari flared up when
the claimant tried to be of help to her. The claimant stated that there and
then, Mrs Ownari told her that she should start looking for another job. The
letter of Appeal Exhibit C9 dated the 21/7/2016 describes what transpired
thereafter. She ignored the claimant and one staff Mr Toba Oladunjoye whom Mrs
Duke had already called appeared on the scene and assisted Mrs Ownari Duke with
the transaction she came to do after refusing to be attended to by the
claimant. The evidence before the court is that this incident resulted in the
claimant being summoned to the Head office along with the FTO and the Security
man on duty on that date. This account was never disputed by the defendant. The
evidence is also that at the defendant head office, the claimant and the 2
other staff were asked to resign within a few days without any disciplinary
investigation being carried out if the claimant had committed any offence.
It is without doubt that a complaint
about the incident of the 26/7/2016 must have been made to the headquarter of
the defendant over the incident to warrant the claimant and the 2 other staff
being summoned to the head office of the defendant. The evidence adduced by the
claimant in paragraph 18 of his deposition is that based on the incident of the
26/7/2016, the FTO officer and the security officer were dismissed from the
employment of the defendant. The defendant did not deny the fact of the
dismissal of the other 2 officer of the bank. Claimant barely denied in
paragraph 6 of their witness deposition that there was never any incident
following the visit of Mrs Owanari Duke to the Defendant’s Redemption Camp
branch during the normal banking hours relating to any verbal assault or
resignation of the Claimant or any other of the Defendant’s staff. I find this denial very ridiculous. To deny
an incident which was brought to the attention of the defendant leading to the
claimant being summoned to the head office of the bank and also clearly
reported in the Letter of Appeal exhibit C9 is an attempt to cover up an
incident that occurred in the defendant place of work. In the response to the
letter of appeal dated the 10/10/2016, and tendered as Exhibit C10, the
defendant never denied the facts of the incident as stated in Exhibit C9. This
fact portrays the defendant as an employer who is not in control of their work
environment and cannot account for the daily activities in their place of work.
The defendant has not also denied that the Funds Transfer officer (FTO) and the
security man on duty were dismissed. This is an admission of the incident and
if they were not dismissed the defendant should have led evidence to show that these
officers were still in the employment of the defendant.
The claimant testified that after she
was summoned to the head office over the incident of 26/7/2016, She was asked
to resign. The claimant testified that she was uncertain of what lies ahead and
being apprehensive of encountering financial hardship, she refused to put in a
resignation letter but continue with her job. However, she was subjected to
serious harsh treatment, humiliation, threat of sack by the bank’s senior
officers which include the Branch Manager, the team lead Employee Relation
Officer, and senior staffs at the defendant’s head office etc. If the claimant
had committed and offence that would have attract the disciplinary decision of
dismissal the defendant ought to have investigated the incident to determine
the culpability of the claimant. There was no investigation institute to afford
the claimant an opportunity to give her own account of what happened on the
26/7/2016. It is the claimant evidence that after the visit to the head office
of the defendant she was continually pressured by his superior officers to
resign. The claimant during cross examination stated that he was told by the Human
Resources Manager Mr Obi Obikwe to resign because her appointment would be
terminated, that it would be best to resign to avoid being blacklisted by CBN.
In paragraph 16 of the claimant deposition he stated, 'That apprehensive
of imminent dismissal, coupled with the unending victimization, harassment,
hostility, and harsh working environment; and primarily based on the advice of
the defendant through Obi lbekwe, I was forced to hurriedly put in a hand
written resignation letter dated 1st March, 2016 against my free
will’.
The defendant has argued that the resignation
of the claimant was voluntary. That the claimant was never forced to resign
from the Defendant’s employment as she resigned on her own; probably to seek
greener pastures in a different financial institution as its known among
bankers. The evidence adduced before this court suggest a contrary position.
First, I have examined Exhibit C3 the letter of resignation. The letter is
handwritten and has cancellation which suggest the letter was written in a
hurry which is evidence of pressure. Secondly the claimant from the evidence
before the court had put in 9 years of service in the defendant employment and
risen through promotion to the rank of a manager, it is very unlikely that a
staff of this cadre would resign from employment of 9 years of service in 3 lines of sentences. I will reproduce the
letter of resignation here
The Director
Human Capital Management
Marina, Lagos
NOTICE OF RESIGNATION
I
Mrs Ejeke Joy Nneka with employment number A07446
Wish to resign my appointment with
United Bank foe Africa
Effective Immediately
dated 1st March 2016
Yours Faithfully
Ejeke Joy Nneka
The last paragraph of the above reproduced
letter wherein the claimant wrote that the resignation is effective immediately
clearly punctures the argument of the defendant that the resignation was
voluntary. It does appear that the letter was written in a hurry to avoid an unpleasant
action that was to be taken, if the letter of resignation was not written and
submitted. This finding of the court is anchored on the fact that this
employment stipulates a period of notice to terminate as stated in Exhibit C1 which
provides:
During
the probationary period. Termination of appointment by either party will be
subject to two (2) weeks notice in writing and in the case of a default, a
payment of two (2) weeks basic salary in lieu of notice is mandatory. Subsequently,
one month notice or one month salary in lieu of notice shall be required. (underlining for emphasis)
A voluntary resignation of the claimant
as stated in the above paragraph of the Exhibit C1 would have required the
claimant to give one month notice of intension to terminate the employment.
This termination could not have been voluntary having regards to the content of
Exhibit C9 the ‘Letter of Appeal’ in that letter the claimant wrote
In
all of this, I will appeal that you give us second chance to serve again, staying
at home these few months has exposed our families to challenging times,
inability to feed, unable to pay school fees of our children and other
associated bills. Our lives has been tough and rough these past few months. May
I plead that you consider our appeal based on compassion and love for humanity.
Those words are evidence of regret on the
part of the claimant for hurriedly resigning out of pressure from the claimant
superior. It punctures the assertion of the defendant that the claimant
resigned to probably to seek greener pastures in a different financial
institution as is known among bankers. On the state of the evidence adduced in
this case and the evaluation of the
evidence, it is the findings of this court that the defendant pressured
intimidated and forced the claimant to resign from the employment in fulfilment
of the threat made by Mrs Ownari Duke on the 26/7/2016 that the claimant should
start looking for another job. It is therefore a lie when the defendant in
paragraph 11 of their witness deposition stated that none of the Defendant’s
officers is answerable to Mrs Wanari Duke as an individual to carry out any
instructions relating to the contract of
employment that exists between the Defendant and its employees including
the Claimant. In this case the defendant
carried out the threat of Mrs Wanari Duke who at that time was a Non-Executive
director of the bank who must have used her position to pressure and intimidate
the management of the defendant to force the claimant to resign from her
employment. It is therefore the finding of this court that the resignation of
the claimant by exhibit C4 amounts to constructive dismissal.
Let me also say that the conduct of Mrs
Wanari Duke leaves much to be desired. The 26/7/2016 should be a date that
should be a day of infamy in her life for her conduct at the UBA branch of the
Redemption Camp. The ego she exhibited
over the very vulnerable claimant, who was all out to assist her which she
rebuffed and still complained to the head office of the defendant leading to the
pressure that engendered the forced resignation of the claimant is indeed what
any person with conscience and humanity should not do. The hardship that
followed the claimant forced resignation as expressed in Exhibit C9 the letter
of appeal can only be attributed to her inhumane conduct at the bank on the
27/7/2016. I will say no more.
ISSUE 2
Whether the defendant can
debit the claimant with loss occasioned in the course of banking operations and
thereafter use the debit to deny the claimant of her terminal benefits.
The case of the claimant is that sometimes
in 2015 a fraudster initiated a transfer of N3,920,000.00k and cash withdrawals
of N880,000 from a savings account belonging to one Tobechukwu Samuel Okafor
Domiciled at 60, Marina Business Office, after due processing, and in line with
the defendant’s practice, the said NIP transfer and cash withdrawal was
honoured by the defendant through her staffs which included the claimant. It
later turned out that the approval of the NIP transfer and cash withdrawal was
granted by unsuspecting staffs of the defendant to a fraudster who had posed as
the original holder and authorized signatory to the account. The defendant
penalised the claimant by transferring the sum of N2, 400,000 out of the total
sum of N4,800,000 into the claimant account to be paid by the claimant. The
claimant protested the action of the defendant. The claimant was forced to
issue a letter of consent tendered as Exhibit D3, to book the sum of N2,400,000
into the claimant account no. 09990080020115. The sum was to be paid by the
defendant in 48 month from October 2015.
The defendant position is that it was the
negligence of the Claimant that led to her approving a fraudulent NIP transfer
initiated by an impostor and the Defendant in order to serve as a deterrent to Claimant
and other staff who are negligent in their duties was proper to sanction the
Claimant as it recommended in the letter of caution Exhibit D4. In the response
to the claimant solicitors letter of demand, the defendant stated thus:
Prior
to her resignation, your client had requested that the Bank avails her a
facility in the sum of N2,400,000,00 (Two Million Four Hundred Million Naira)
with repayment to be spread over a 48 months period from October 2015.
Th defendant posits that the above sum
was a loan granted to the claimant. This position is in clear contradiction of
the content of Exhibit D4 the letter of caution which stated that the claimant
was to reimburse the bank the sum of N2,400,000 for the loss to the bank.
Let me be very clear here, there is no
evidence before this court to show that the claimant ever applied for a loan of
N2,400,000. Rather the evidence is that the claimant was to pay the said sum to
defray the loss to the bank. Therefore, the position in Exhibit C12 (the
response to the solicitor letter dated 02/11/2020 Exhibit C11a) that the
defendant availed the claimant a loan facility is false and is not supported by
any evidence before the court.
Furthermore, the defendant in the letter
of caution Exhibit D4 stated:
You
failed to exercise extended due diligence on the subject customer’s account as
you negligently authorized the fraudulent NIP transfers and cash withdrawals
totalling N4,800,000.00 from the customer’s savings account by an impostor,
despite the irregularities in the customer’s mandate, which subsequently
crystallized into a loss.
By this position the claimant attributes
the loss to the negligence of the claimant. The sum allegedly lost was
N4,800,000 how the claimant came to hold the claimant liable to the sum of
N2,400,000 remains a mystery. There is also no evidence before the court that
show that the claimant was given the opportunity to defend his role in the
transaction leading to the loss. The defendant did not also allege that the
claimant benefited from the loss or connived with any other person to defraud
the customer of the bank or the bank. The business of banking like any other
business has its profit and loss sides. To hold the staff of the bank liable
for every fraud committed by third parties without establishing direct
negligent conduct or connivance by the staff of the bank in the ordinary course
of their work is to shift loss component of business on the staff of the bank.
Such act amount to unfair labour practice. It is worst that the loss is debited
into the account of the staff of the bank as a loan. This practice cannot be
tolerated. The bank cannot be allowed to shift the loss liability of its
business component on its staff. It is therefore the finding of this court that
the debit of the loss incurred by the defendant in the course of its business
into the account of the claimant is unlawful as that cannot constitute a loan
not-withstanding the letter of consent. It is the decision of this court
that the debit of N2,400,000 into the account of the claimant must be reversed
and credit given to the claimant for whatever sum that has already been paid or
deducted from the salaries of the claimant.
ISSUE NO 3
Whether the claimant is
entitled to the monetary reliefs claimed in this suit.
The case of the claimant is that the
defendant has been deducting the sum of N50,000.00k as purported terminal debt
from the claimant account. This the claimant did on the 25/01/2016, 24/02/2016,
24/03/2016, 25/04/2016, thus making the total deduction to be in the sum
of N250,000.00k. Also on the 8/6/2016,
the defendant also wrongly debited the claimant account with the sum of
N2,150,000 as terminal debt obligation. That on the 8/03/2019, one Oyinyeamara
Esther transferred the sum of N100,000.00k into the claimant account for a
business transaction and the claimant withheld the money. The claimant also
testified that the defendant at various times debited the claimant account with
various sums. The claimant in paragraph 39 of her deposition tabulated the
various deductions and the dates of the deductions which are reflected in the
claimant statement of account tendered as Exhibit C8. The total deductions is
in the sum of N1,790,027.03k. The claimant testified that the entire sum deducted
by the claimant from the claimant account is N4,290,027.00K. The claimant also
testified that between January 25, 2016
and 31 October, 2022 the defendant had also imposed several inconsistent interest
rate on my account under the guise of running interest on Terminal Debt
Obligation thus plunging the said account into a debit balance of N5, 595,
267.44 (Five Million, Five Hundred and Ninety Five Thousand, Two Hundred and
Sixty Seven Naira, Forty Four Kobo).
The defendant testified that the claimant
letter of consent authorised the defendant to book the loan. I have already
stated in this judgment that the sum of N2,400,000.00k was not a loan but a
punitive imposition to recoup the loss occasioned by the loss incurred by the
defendant. I have also stated that the letter of consent could not have changed
the character of that punitive imposition so as to turn same into a loan. The
defendant has also argued that the deductions complained of by the claimant
made in the claimant account were legal and in line with the loan. I have held
that there was no loan granted to the claimant. Therefore, any deduction
attributed to any alleged loan is an illegal deduction and must be reversed.
The defendant has not been able to justify the deductions. The evidence show in
Exhibit C8 that the defendant actually made the several deductions which
plunged the account of the claimant into a debt of N N5, 595, 267.44. Having
found earlier in this judgment that the defendant was wrong to have forced the
claimant to assume liability for the payment of the sum of N2,400,000 and all
the deductions earlier stated in this judgment, The claimant has asked this
court in relief No 4 to order the defendant to refund the sum of N4, 290, 027
(Four Million, Two Hundred and Ninety Thousand, Twenty – Seven Naira only)
being money unlawfully/wrongfully deducted from the claimant’s account. The
court hereby finds for the claimant. The defendant is hereby ordered to reverse
the sum of N4, 290, 027.00k to the claimant being the unlawful and illegal
deduction from the claimant account.
In relief no 5, the claimant seeks an
order compelling the defendant to pay the claimant the sum of N3,109,
045.86.(Three Million, One Hundred and Nine Thousand, forty-Five Naira, Fifty
Four kobo) as her gratuity. This claim is a special damage claim. The law
requires that that it should be specifically pleaded and strictly prove for its
grant. See NNPC V. CLIFCO NIG. LTD. [2011] LPELR-2022 (SC) (Pp.
30 paras. B)
‘Evidence ought to be led
before an award for special damages is granted. To succeed in a claim for
special damages it must be claimed specially and proved strictly. The fact that
it appears to be admitted does not relieve the party claiming it of the
requirement of proof with compelling evidence.
Special damages are
exceptional in character and so there is no room for inference by the court. It
is unreasonable to consider a claim for special damages reasonable in the
absence of proof. A claim for special damages succeeds on compelling evidence
to justify it and not on the sums claimed appearing reasonable to the court.’ Per Rhodes-Vivour, J.S.C
In other words, a party who claims
gratuity must plead the basis of the claim which must be derived from the
contract of employment and also go ahead to proof the quantum of the claim. The
evidence offered by the claimant in proof of this claim is in paragraph 60 of
her deposition, that the last salary paid to her is N345,449-54. Since her forceful exit, the defendant has
deliberately and/or intentionally withheld the payment of my gratuity for the
nine years of service. The gratuity due and payable to the is N3,109, 045. 86k.
The sum payable as gratuity is arrived at by multiplying the last salary earned
by the number of years of service, that is N345, 449. 54 x 9 = N3,109,045.86. The
defendant on the other hand has responded that the claimant was not entitled to
gratuity. That the claimant was aware that the defendant does not pay gratuity
to its exiting staff. The defendant position is not correct. Banks like the
defendant pay gratuity to its exiting staff. However the claimant in making
this claim failed to tender the Employees handbook which would have shown the
years for qualification for gratuity and the parameter for such payment. The
evidence given by the claimant above does not satisfy the requirement of strict
proof. This claim must fail on the requirement of proof. The claim of N3,109,
045.86. is refused and is accordingly dismissed.
In claim No 6, the claimant seeks an
order compelling the defendant to pay the claimant the sum of N2,150,000.00k
being the claimant terminal benefit as determined by the defendant. The
claimant relies on the response to the letter of resignation tendered as
Exhibit C4. In that latter the defendant computed the total terminal benefit of
the claimant to be in the sum of N2,150,00.00k. However, the defendant in that
same Exhibit C4 used the terminal benefit as personal loan. In other-words the
defendant used the claimant entitlement to defray part of the sum of N
2,400,00.00k which the defendant alleged they granted to the claimant as loan.
This sum was the punitive liability forming part of the loss the defendant
alleged it incurred as result of the fraudulent NIP transaction which the
defendant alleged occurred as a result of the negligence of the claimant. I
have already stated in this judgment that decision to hold the claimant liable
for that loss is an unfair labour practice. I have also held that that sum
cannot be debited to the account of the claimant as a loan. I have also ordered
the reversal of the said punitive debit. Bearing this in mind, it is the finding
of this court that it was wrong for the defendant to have used the sum of
N2,150,00,00k being the claimant terminal entitlement to defray part of the
illegal loan. I therefore find that the claimant has proved his entitlement to
the above stated sum Judgment is entered in favour of the claimant against the
defendant. The claimant shall pay the sum of N2,150.000.00k being the claimant
terminal entitlement as computed in Exhibit C6.
In claim No 7 and 8. The claimant seeks a
declaration that the defendant breached the banker customer relationship
between her and the claimant by disallowing the claimant access and use to her
money through wrongful deductions or withholding of the claimant’s money. The
claimant also seeks an order compelling the defendant to pay the claimant the
sum of N10,000,000 or breach of the banker/customer agreement to the claimant.
The case of the claimant is that
sometimes on the 8/3/2019, one Ugorji Oyinyeamara Esther transferred the sum of
N100,000,00 (One Hundred Thousand Naira) into my account for a transaction. All
efforts made by her to withdraw the money proved abortive as the defendant
withheld the money and denied her access to and use of the money through
wrongful and/or illegal deduction of same under the guise of terminal debt. I
Have carefully examined the statement of account tendered as Exhibit C8. The
entries on the 8/3/2016 show that the claimant received the sum of N100,000.00k
as NFT transfer from one Ugorji Oyinyeamara Esther. At the date of the credit
of the said amount into the account of claimant account No 1006932946, The
account was already in debit by reason of the debit in the sum of
N2,561,728.11k. This is the debit this court has adjudged to be unlawful debit of the claimant account with an
un-existent loan. Without that unlawful debit balance the account would have
been free for the claimant to access the N100,000.00k paid into her account.
The defendant use of the said sum to offset part of the alleged loan is a
breach of the banker customer relationship between her and the claimant by
disallowing the claimant access and use to her money through wrongful
deductions or withholding of the claimant’s money. It is therefore the finding
of this court that the defendant is liable to pay the claimant the said sum.
Judgment is therefore entered in the sum of N100,000.00k in favour of the
claimant.
IN RELIEF NO 9
The claimant claims N 20, 000,000 as punitive
and exemplary Damages for the unjust withholding of the unpaid terminal
benefits, gratuities, entitlement and for illegal and unlawful deductions from
the claimant’s salary account, There are parameters established by case law for
the award of punitive and exemplary damages. In the case of KABO
AIR LTD V. MOHAMMED (2014) LPELR 23614 (CA), also said: "Punitive
damages which are also referred to as exemplary damages are intended to punish
and deter blame worthy conduct and thereby prevent the occurrence of the same
act in the future. They are awarded whenever the conduct of the defendant is
sufficiently outrageous to merit punishment as where, for instance, it
discloses malice, fraud, cruelty, insolence or flagrant disregard of the
law." Exemplary damages, otherwise known as punitive damages is usually
awarded to meet the end of punishment. A claim for exemplary damages need not
be expressly pleaded. It is sufficient if the facts pleaded supports the award
of exemplary damages, and it is shown to have resulted from the malicious acts
of a party.
See CBN & amp; Ors V. OKOJIE (2015)
LPELR-24740 (SC). The question is whether the act of the claimant justify the
award of this class of damages. I do not think so. It is the duty of the
defendant to protect the integrity of the account of its customers, however
business accidents like the fraudulent NIP transfer do happen even when the
bank has done what it should do in other to protect its customers. The only
snack is that it sought to make the claimant liable for the loss without
establishing the negligence of the claimant in this regard to the satisfaction
of the court. Also, the defendant failed to show connivance of the claimant in
the fraud or to stablish if the claimant benefited from the fraud. It is the
finding of this court that no act of the defendant was sufficiently outrageous
to merit punishment. The facts pleaded does not support the award of exemplary
damages. This claim cannot be awarded it is accordingly dismissed.
IN RELIEF NO 10
Also the claimant claims the sum of
N10.000.000 as damages for the psychological trauma and untold hardship
suffered by the claimant as a result of the defendant’s unfair labour practice
and unnecessary withholding of the claimant’s entitlement. There are a lot of
decisions that support the award of this damages. In the case of UGWU
& ORS V. NBL PLC (Pp. 26-27
paras. F) "The principles guiding
the award of general damages are littered in a legion of judicial authorities
of this Court and that of the Supreme Court. In the case of Elf Petroleum
V. Umah &Amp; Ors. [2018] LPELR - 43600 (SC), the Supreme Court,
Per OGUNBIYI, J.S.C held as follows:
"It is pertinent to re-iterate
herein that in the award of General Damages, a wide-spread power is given to
the Court comparable to the exercise of discretion of the Court. It is enormous
and therefore far-reaching and contrary to the contention held by the appellant
herein. The measure of general damages is awarded to assuage such a loss, which
flows naturally from the defendant's act. It needs not be specifically pleaded.
It suffices if it is generally averred. They are presumed to be the direct and
probable consequence of that complained of. Unlike special damages, it is
generally incapable of exact calculation." Per Umar ,J.C.A (Pp. 26-27 paras. F)
The claimant in his evidence testified
that he was forced by hER superiors in the defendant work place to resign his
appointment. The claimant in Exhibit C9 The Letter of Appeal painted a graphic
picture of the consequences of her forced resignation thus:
In
all of this, I will appeal that you give us second chance to serve again.
Staying at home these few months has exposed our families to challenging times,
inability to feed, unable to pay school fees of our children and other
associated bills. Our lives has been tough and rough these past few months. May
I plead that you consider our appeal based on compassion and love for humanity.
With these words, one can only imagine
what the claimant is going through by reason of the defendant act of coercing
and intimidating and ultimately forcing the claimant to resign from her
employment. I have already held that the resignation of the claimant was never
voluntary. In the light of the foregoing state of facts it is the finding of
this court that the claimant is entitled to damages. I award the sum of
N5,000,000. (Five Million Naira) in favour of the claimant against the
defendant.
IN RELIEF NO 11
The claimant claims interest at the rate
of 20% per annum from the above sum from 2022 until judgment. This claim is rather
vague, the claimant did not state which sum the interest is to attach. The
claim of pre-judgment interest is not granted as a matter of course. The law on this is stated in the case of UBA PLC V. SKYMIT MOTORS LTD (Pp. 41-42 paras. B)
"The law on award of pre-judgment
interest has long been well established as awash in decision of the Supreme
Court and this Court as replete in the law reports, so much so that it no longer
posses any difficulty to decipher. In A.G Ferrero & Co Ltd v H.C (Nig) Ltd
(2011) 13 NWLR (Pt.1265) 592 @ p, 608, the Supreme Court per Onnoghen, J.S.C
(as he then was, now C.J.N.) had lucidly reiterated the position of the law on
pre - judgment interest inter alia thus:
"A claim for pre- judgment
interest may be made by a plaintiff on a right where (a). it is either
expressly provided for in or is contemplated by the agreement between parties; (b).
it is claimed under a mercantile custom;
(c ). it is claimed under a
principle of equity such as breach of fiduciary relationship. It follows from
the above that before a party can claim pre- judgment interest, he has to plead
not only his entitlement to the interest but the basis of the entitlement
either by statute or contract between the parties or mercantile custom or
principle of equity such as breach of fiduciary relationship. It is for the
Court to separate or conjecture or assume the facts relevant to the
claim."
See
also ETCO (MG.) LTD. V. G & T INVESTMENT LTD (2011) 3 NWLR (Pt.
1234) 302 @ p. 321; STABILINI VISIONI V. METALUM LTD (2008) 9 NWLR (Pt.
1092) 416 @ p.433;
The claimant relief for pre-judgment
interest must be anchored on this requirement to discharge the evidential
burden . This is not the case in this action. The claim must therefore fail. It
therefore refused and accordingly dismissed.
CONCLUSION.
The reliefs of the claimant in this
action partially succeeds. Judgment is entered in favour of the claimant
against the defendant in the following terms:
1.) A
declaration that the action and/or decision of the defendant transferring
liability of the defendant’s company on the claimant for money approved and
paid out in the ordinary course of defendant’s business is illegal, wrongful,
unlawful unfair labour practice and null and void.
2.) The
defendant shall reverse all unlawful debit entries in the claimant’s salary
account number 1006932946 (old account
number 09990080020115) with regards to the illegal terminal debt
liability imposed on the claimant, The defendant is hereby ordered to
reverse the sum of N4, 290, 027.00k to
the claimant being the unlawful and illegal deduction from the claimant account
3.) An
order that the running interest unilaterally imposed on the Claimant’s account
is wrongful, illegal null and void.
4.) An
order compelling the defendant to refund a total sum of N4, 290, 027 (Four
Million, Two Hundred and Ninety Thousand, Twenty – Seven Naira on|) being money
unlawfully/wrongfully deducted from the claimant’s account.
5.) The claim of the sum of N3,109 045.86. (Three
Million, One Hundred and Nine Thousand, forty Five Naira, Eighty Six kobo)
as gratuity is refused and accordingly
dismissed.
6.) The defendant is hereby ordered to pay the
claimant the sum of
N
2, 150, 000.00 (Two Million, One Hundred and Fifty Thousand Naira only) being
the Claimant’s terminal benefit as determined by the defendant
7.) A
declaration is hereby made that the defendant breached the banker customer
relationship between her and the claimant by disallowing the claimant access
and use to her money through wrongful deductions or withholding of the
claimant’s money.
8.) The
Defendant is hereby ordered to pay/refund to the claimant the sum of N100,000.00k
unlawfully applied to service the unlawful loan debited to the claimant
account.
9.) The
claim of N20,000,000.00 (Twenty Million Naira) as punitive and exemplary
Damages for the unjust withholding of the unpaid terminal benefits, gratuities,
entitlement and for illegal and unlawful deductions from the claimant’s salary
account is refused and accordingly dismissed.
10.The
Defendant shall pay the sum of N5,000,000 (Five Million
Naira) only being damages for the
psychological trauma and untold
hardship suffered by the claimant
as a result of the defendant’s act
of causing the forceful resignation
of the claimant
11.
The claim of pre-judgment interest at the rate of 20% per annum
from 2022 until judgment is fully
and finally liquidated is refused and
accordingly dismissed
12.
The defendant shall pay N2,000,000 as cost of this action.
The
sum awarded to be paid directly to the claimant in this judgment other than the
sum to be reversed in the account of the claimant shall be paid within 14 days
from the date of this judgment failure of which it shall attract interest at
the rate of 20% from the date of judgment until full liquidation.
Judgment
is hereby entered.
___________________________________
Hon.
Justice (Dr.) I. J. Essien
(Presiding Judge)
REPRESENTATION.
I. Adekunle Esq with O. Temitope Esq. and O.
Olofinte Esq for the claimant. J. Akinsete Esq. for defendant