NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE P.A. BASSI
Date: MONDAY, 10TH MAY, 2021
Suit No: NICN/LA/39/2018
BETWEEN
MRS. ABIODUN MARTINS ................... CLAIMANT
And
KEYSTONE BANK LIMITED ................... DEFENDANT
REPRESENTATION:
FEMI AKINSETE ESQ. ……….. For the Claimant
ALEX MUOKA ….……. For the Defendant
JUDGMENT
The Claimant commenced this suit via a General form of Complaint dated 25th of April 2019 filed alongside other accompanying documents. With the leave of Court, the claimant filed an amended Statement of facts on the 10th of January 2019 seeking the following reliefs against the Defendant;
1. A Declaration that the Claimant’s employment has not been terminated in accordance with the contract of employment that exists between the Claimant and the Defendant as regulated by the Defendant’s Human Capital Policies and Procedures Manual Revised 2013 and Human Capital Policies and Procedures Manual 2013 (with 2015 amendments).
2. A Declaration that the Defendant’s purported termination of the employment of the Claimant with effect from November 8, 2013 without compliance of any of the 3 procedures of staff separation policy stated in the Defendant’s Human Capital Policies and Procedures Manual Revised 2013 and Human Capital Policies and Procedures Manual 2013 (with 2015 amendments) is of no effect in law, null and void.
3. A Declaration that the Defendant’s purported termination of the employment of the Claimant’s with effect from November 8, 2013 is of no effect in law, null and void.
4. A Declaration that the Claimant is entitled to all her rights, entitlements and other perquisites of her office as Manager of the Defendant by virtue of her contract of employment from November 8, 2013 till the date of delivery of judgment in this suit.
5. An Order directing the Defendant to resume and continue payment of the Claimant’s salaries at the rate of N11,962,633.54 (Eleven Million, Nine Hundred and Sixty Two Thousand, Six Hundred and Thirty Three Naira, Fifty Four Kobo) per annum plus interest at the rate of 10% from November 8, 2013 till judgment is delivered in this matter; and thereafter interest on the judgment sum at the rate of 21% per annum until final liquidation thereof.
6. A Declaration that the Claimant is entitled to be paid her end of service benefits under the Gratuity Scheme of the Defendant as contained in its Human Capital Policies and Procedures Manual Revised 2013 to wit; the sum of N6,195,771 (Six Million, One Hundred and Ninety Five Thousand, Seven Hundred and Seventy One Naira) being 100% of the Claimant’s monthly total package (less bonus) multiplied by 6 years being the number of years the Claimant spent in the employment of the Defendant.
7. An Order of this Honorable Court directing the Defendant to pay to the Claimant as her end of service benefits under the Gratuity Scheme of the Defendant as contained in its Human Capital Policies and Procedures Manual Revised 2013 to wit; the sum of N6,195,771 (Six Million, One Hundred and Ninety Five Thousand, Seven Hundred and Seventy One Naira) being 100% of the Claimant’s monthly total package (less bonus) multiplied by 6 years being the number of years the Claimant spent in the employment of the Defendant.
8. General Damages in the sum of N5,000,000 (Five Million Naira) in favour of the Claimant against the Defendant for breach of the contract of employment that exists between the aforementioned parties.
9. Cost of this action as assessed by this Honorable Court.
In response, the defendant filed an amended Statement of Defence and Counter-Claim dated the 4th of November, 2019 wherein it counter-claimed for the following reliefs.
a) Return of the Toyota Avensis Car assigned to the Defendant to Counter-claim while she was in the employment of the Defendant/Counter-claim and which car she refused to return to the Defendant/Counter-claim upon the termination of her employment.
Or in the alternative
b) Payment of the sum of N5,698,606.93 being the net book value of the Toyota Avensis car assigned to the Defendant to Counter-Claim while she was in the employment of the Defendant/Counter-Claimant and which car she refused to return to the Defendant/Counter-Claimant upon the termination of her employment and accrued interest thereon as at the 28th of February 2018.
c) Interest on the said sum of N5,698,606.93 at the rate of 22% per annum from the 28th of February 2018 until judgment and thereafter at the rate of 22% per annum until the entire sum is liquidated.
d) Cost of the action in the sum of N1,000,000.00.
The claimant’s Reply to the Statement of Defence and Defence to the Counter-Claim was filed on the 11th of February 2019 while the Defendant’s amended Reply to the Statement of Defence to the Counter-claim was filed on the 21st February 2019.
At trial, the claimant testified as CW and adopted her sworn depositions of 16th of January 2019 and 12th of February 2019. Exhibits C1-C8 were tendered and admitted into evidence through this witness. CW was cross-examined by the learned counsel to the Defendant and thereafter discharged. The claimant then closed her case.
On behalf of the Defendant, a Mr Julius Oyedeji, the Head, Human Capital Management Services of the Defendant testified as DW. He adopted his sworn depositions on Oath 2/2019 and 21/2/2019 as his evidence in chief. 5 documents were tendered by this witness and they were admitted into evidence as exhibits and marked as Exhibits D1-D5. He was cross-examined and thereafter discharged. The defendant then closed its case.
The parties were then ordered to file and exchange their respective final addresses which were adopted on the 11th of February 2021 and judgment was then reserved.
THE CASE BEFORE THE COURT
It was the claimant’s case that she was employed by the defunct Bank PHB which was taken over by the NDIC and later acquired by the Defendant bank. To the claimant, her employment was transferred to the Defendant’s upon its acquisition of Bank PHB as she contends that the Defendant took over the employee contract liabilities of the said Bank PHB.
It was also the claimant’s story that the defendant did not comply with the procedures in the operative HCP manual in terminating her employment and also refused to pay the claimant her end of service gratuity as contained in the manual.
On the counter-claim, the claimant admitted being assigned an Avensis as her status car and that it was still in her possession but contended that the defendant had neither shown the court how it arrived at the sum it is claiming as the net book value of the Toyota Avensis nor had it placed before the court the proof of a specific vehicle it had allocated to the claimant as her status car.
To the defendant, the claimant’s contract of employment with it commenced in the year 2011 and ended in the year 2013. That the claimant’s employment contract with the defunct Bank PHB was terminated with the acquisition of Bank PHB by the NDIC and the contract with the defendant was on fresh terms.
It was also the defendant’s story that it had complied with the claimant’s contract in terminating her employment and had fulfilled its obligations to the claimant upon the termination of her employment.
On its counter-claim, the defendant submitted that it had assigned a Toyota Avensis car to the Claimant as her status car which car she still retained despite her exit and repeated demands for its return.
SUBMISSIONS OF THE DEFENDANT IN FINAL ADDRESS
Learned Counsel to the defendant submitted that the 2 issues that arise for the court’s determination in this suit are;
a) Whether in the circumstances of this case the Claimant has proven her entitlement to the reliefs claimed?
b) Whether the Defendant has established the counter-claim
In arguing these issues, counsel tied reliefs 1,2 and 3 of the main suit under 3 sub-heads to wit;
i) Whether there was a transfer of the Claimant’s employment from Platinum Habib Bank Plc to Keystone Bank Limited?
ii) Whether it is the letter of employment or the Human Capital Policies and Procedures Manual Revised 2013 that regulates the Claimant’s employment with the Defendant?
iii) Whether the Claimant’s employment was lawfully terminated by the Defendant?
The learned counsel to the defendant then proceeded to argue the merit of reliefs 4,5,6,7, 8 and 9 serially.
On whether there was a transfer of the claimant’s employment from Bank PHB to the defendant, counsel referred to the case of Obuladike V. Nganwuchu (2013) 45 WRN pp 131-132 and submitted that an assertion remains an allegation that requires proof. In counsel’s opinion, Exhibit C8 does not in any way refer to a transfer of the Claimant’s employment from PHB to Keystone Bank Ltd rather it was an Offer of Employment by Keystone Bank Ltd to the Claimant. That there was nothing which suggests or connotes a transfer or continuation of employment from Platinum Habib Bank Plc to the Defendant neither was there is a mention of Platinum Habib Bank Plc anywhere in Exhibit C8 as there was no mention of a previous or former employment.
Counsel therefore submitted that CW1’s oral testimony of her understanding of Exhibit C8 to mean transfer of employment should be discountenanced by the Honourable Court in the light of the unequivocal meaning of Exhibit C8 which speaks for itself.
Learned Counsel to the Defendant submitted that the Claimant’s contention that the staff liabilities of Platinum Habib Bank Plc, including that of the Claimant was one of the liabilities transferred to the Defendant upon taking over Platinum Habib Bank Plc was clearly an afterthought. That It was not the basis or premise of the Claimant’s suit and claims against the Defendant but an attempt to change the narrative relying on Azeez Akeredolu & Others V. Lasisi Akinremi & Others 1989 2 NSCC 319
Finally Counsel urged the Court to consider that the issue of transfer of employment by virtue of either Exhibit C8 (D1) or Exhibit D5 which was disputed by the Defendant was not raised by the Claimant as a specific relief. That the Claimant did not invite the Honourable Court to make a declaration that her employment was transferred from Platinum Habib Bank Plc to the Defendant. In his opinion, the Honourable Court is therefore precluded from making any such declaration.
Counsel on the next issue submitted that the Letter of Employment dated August 5, 2011 admitted as Exhibit C8 is the contract that regulates the Claimant’s employment relationship with the Defendant and not the Human Capital Policies Manual Exhibit C5 relying on Anaja V. UBA Plc (2013) 30 NLLR (part 87) pp 360-361 and Oforishe V. Nig. Gas Co. Ltd. (2017) 50 WRN p. 39. That the burden of proving that Exhibit C5 governed the relationship rests on the Claimant.
On whether the Claimant’s employment was lawfully terminated, counsel cited the case of Gateway Bank of Nigeria Plc V. Abosede (2015) 4 NLLR (part 10) P. 315-316 and submitted that Exhibit D4 – the Claimant’s Statement of Account particularly the two (2) entries of 4th of December 2013 showing the payment of the sums of N371,542.73, and N733,909.06 being ‘one month in lieu of notice’ and ‘earned allowances at exit’ respectively. That the Claimant admitted receiving these amounts into her account. He therefore concluded that the Claimant’s employment was lawfully terminated via Exhibit C1 in full compliance with Exhibit C8 as the procedure in paragraph 4.1.3 page 74 of Exhibit C5 is not applicable to the Claimant.
On reliefs 4 and 5, Counsel submitted that these were vague. The Claimant did not give particulars of the alleged rights, entitlements and other prerequisites. Similarly counsel submitted that the Claimant was not a member staff of the Defendant as her employment has been lawfully terminated by the Defendant through Exhibit C8 and only staff are entitled to payment of salaries and urged the Court to dismiss the claim.
Counsel further contended that the Claimant cannot ask for an order of re-instatement and then in her sixth relief to seek an order for entitlement to end of service benefits under the Gratuity Scheme. That the fifth and sixth reliefs were conjunctive and not in the alternative and the Claimant cannot blow hot and cold.
Learned Counsel to the Defendant also submitted that Exhibit D5 is before the Court, and the Court has the duty to look into the document tendered. He referred the Court to paragraph 2.1, page 10 of Exhibit D5 wherein the ‘Liabilities Assumed by Assuming Bank’ were clearly listed and staff liabilities is not one of those listed. That the Claimant’s employment with Platinum Habib Bank Plc was neither transferred to Keystone Bank Ltd, nor did Keystone Bank Limited assume Platinum Habib Bank Plc’s staff liabilities. Therefore he opined that the Claimant was not in the employment of the Defendant for six (6) years as Exhibit C8 shows that the Claimant was employed on August 5, 2011 and her employment was lawfully terminated on November 8, 2013.
On the claim for damages, counsel submitted that Claimant has not proved her claims before this Court and consequently not suffered any financial loss to be compensated by the Court. That the Defendant has led evidence to show that there was no breach of the contract of employment of the Claimant. He then urged the Court to dismiss the Claimant’s claims.
On the Counterclaim, counsel submitted that the Claimant had admitted receiving a brand new Toyota Avensis Car from the Defendant in March 2012 and that she was still in possession of the car. There is no dispute about the make and or identity of the car. The parties are ad idem as to this. That The Claimant did not deny that during the course of her employment she was assigned the use of a Toyota Avensis Car belonging to the Defendant but She only asserted that the Defendant did not write her demanding for the return of the said car upon termination of her employment.
Counsel concluded therefore no issue was joined by the Claimant with the Defendant over ownership of the said Toyota Avensis Car or over its assignment to the Claimant for use during the course of her employment. And that having not denied that the said Toyota Avensis Car belonging to the Defendant was assigned to her for use during her employment, there was no burden on the Defendant to adduce evidence to show that the Defendant gave the Claimant a vehicle, or to show the particulars, colour, chassis number, or make of the vehicle, or to show the valuation report or purchase price of the vehicle.
Counsel therefore submitted that the Defendant had proved its claims and is entitled to the grant of the reliefs of return of the said Toyota Avensis Car or payment of its value and interest thereon.
SUBMISSIONS OF THE CLAIMANT IN FINAL ADDRESS
Learned Counsel to the claimant formulated 5 issues for the court’s determination as;
1. Which of the documents before the honorable court are containing the terms and conditions of the Claimant’s employment with the defendant?
2. How long was the Claimant in the employment of the defendant before her employment was terminated on 8th November 2013
3. Whether the Defendant complied with the provisions of the documents that contain the terms and conditions of the Claimant’s employment with respect to terminating her employment
4. Whether the defendant complied with the provision of the documents that contain the terms and conditions of the claimant’s employment with respect to payment of her end of service benefits under the defendant’s gratuity scheme
5. Whether in the circumstances of the case, the defendant has proved its counterclaim and entitled to same.
In arguing these ussies, the Claimant contended that the there was no evidence before this Honourable Court that the Defendant declined assuming liability on existing employment agreements between Platinum Habib Bank Plc and its employees such as that of the Claimant within 90 (ninety) days from August 5, 2011 when the Purchase and Assumption Agreement was made as required by Clause 4.3(a). That he who asserts must prove the assertion he wants the Court to find in his favour relying on several authorities.
Counsel strongly contended that the documents that contain the terms and conditions of her employment with the Defendant consist of Exhibits C2, C3, C5 and C8 as opposed to the Defendant’s contention that the employment relationship was governed only by Exhibit C8.
Counsel further submitted that the Defendant’s Counter-Claim is not backed by ‘admissible evidence’ because the further Statement on Oath of the Defendant’s witness does not comply with the Oaths Act of the Federal Republic of Nigeria as same does not bear the requirements provided in the First Schedule to Section 13 of the Oaths Act. As such the court was called upon to discountenance the sworn deposition and find that there was no evidence in support of the counterclaim.
Learned counsel to the Claimant also objected to the admissibility of Exhibit D4 (the Claimant’s Statement of Account) as counsel submitted it did not comply with the provision of Section 84(4) of the Evidence Act as Julius Oyedeji who signed the Certificate is not the same person that certified the statement of account.
Learned counsel then submitted that the Claimant has proved an entitlement to the reliefs sought and urged the court to grant same while dismissing the counterclaim.
DEFENDANT’S REPLY ON POINTS OF LAW TO THE CLAIAMNT’S FINAL ADDRESS.
Learned counsel to the defendant in replying on points of law submitted on the following issues;
On whom burden of proof lies, counsel submitted that Claimant had alleged that the staff liabilities of Platinum Habib Bank including that of the Claimant was one of the liabilities transferred to the Defendant. That the burden of proving this fact lies on the Claimant and that burden would only shift if the Claimant has been able to establish her case against the Defendant, in which case, the Defendant would be required to tender proof in rebuttal of issues which arose in the course of the proceedings.
That the Claimant also bore of the burden of proof first to show that her employment with the Defendant commenced since 2007 or that her employment agreement with Platinum Habib Bank was one of the liabilities assumed by the Defendant.
On the nature of an employment contract, counsel submitted that there were 3 essential elements of a contract and While the three basic essentials of a valid contract can be found in Exhibit D1, Exhibit C5 is devoid of them. That Exhibit C5 (the Defendant’s Human Capital Policies and Procedures Manual) cannot be said to be a Contract of Employment
On the legal status of a Written Statement on Oath, counsel submitted that there was no irregularity in the Defendant’s Further Written Statement on Oath before the Honourable Court and recent judicial authorities have made a distinction between an Affidavit and a Written Statement on Oath and considered the legal status of a Written Statement on Oath. That the records of the Honourable Court will show that the said further Written Statement on Oath was adopted by the Defendant/Counter-Claimant’s Witness as his evidence-in-chief after being placed on Oath (in compliance with Section 5(1) of the Oaths Act, LFN 2004) without any challenge by the Claimant
On test of admissibility of electronically generated evidence, counsel contended that when it comes to the admissibility of computer generated evidence, the doctrine of hearsay does not come to play. That from the provisions of the Section 84(4) and (5) of the Evidence Act 2011 that it is not required that the person who certified the statement of account and the person who provided the Certificate of Identification be one and the same person. That the Defendant’s witness in this case is a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities. And further that test of admissibility of electronically generated documents is in its authenticity and trustworthiness.
COURT’S DECISION
I have carefully considered the processes filed in this suit as well as the evaluated the evidence adduced by the parties. It is also the law that once a party asserts, he/she must prove the assertion. See Section 131 (1) & ( 2) of the Evidence Act 2011 and the case of Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348. I have also considered the submissions of counsel. In determining this suit, I find it convenient to adopt the issues for determination as formulated by learned counsel to the defendant.
They are;
i. Whether in the circumstances of this case the Claimant has proven her entitlement to the reliefs claimed?
ii. Whether the Defendant has established the counter-claim
And the sub-issues would also be adopted by the court in determining the rights of the parties as they appear to address all the contentions of the parties relevant to the court making a final determination.
The sub-issues are;
i. Whether there was a transfer of the Claimant’s employment from Platinum Habib Bank Plc to Keystone Bank Limited?
ii. Whether it is the letter of employment or the Human Capital Policies and Procedures Manual Revised 2013 that regulates the Claimant’s employment with the Defendant?
iii. Whether the Claimant’s employment was lawfully terminated by the Defendant?
However, it is expedient for the Court to resolve the issue raised by the learned counsel to the defendant in paragraph 6.1.16 of his final address that the claimant raised for the first time in her amended Reply to the Defendant’s amended statement of defence the contention that the staff liabilities of Platinum Habib Bank Plc including that of the Claimant were transferred to the Defendant upon its acquisition of Platinum Habib Bank Plc from the Nigerian Deposit Insurance Corporation (NDIC). The Claimant Counsel admitted as much in paragraph 5.8 of his Final Address.
It is trite that the purpose of a Reply to a statement of Defence is to answer to the defence any matter that must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issue of fact not arising out of the defence. That is a reply is used by a plaintiff to answer new issues raised in the statement of defence. See the cases of Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt.1086) 372 at 406 - 407, Akeredolu v. Akinremi (No. 3) (1989) 3 NWLR (Pt. 108) 164, Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254, Umenyi v. Ezeobi (1990) 3 NWLR (Pt. 140) 621 and Obot v. CBN (1993) 8 NWLR (Pt. 310) 140
However, as held in the case of ZENECA LTD & ORS Vs JAGAL PHARMA LTD (2007) LPELR-8384(CA) by His Lordship Galinje, JCA (as he then was);
“The law is settled that it is not permissible to raise a new cause of action not set out in the writ of summons in a reply to the defence. In Professor N. O. Adeniji & ors v Professor B.L.A Fetuga (1990), 5 NWLR (pt.150) 375, this court, per Akanbi JCA held:- "A reply is the plaintiffs answer or response to any issue raised by the defendant in his defence and which the plaintiff seeks to challenge, deny or admit or object to either on ground of law or a misstatement of the cause of action and it is not permissible in a reply to the defence to raise a new cause of action not set out in the writ of summons, for a plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim. See also Oshodi v. Eyifunmi (2000) 12 NWLR (pt.684) 298. Since the respondent is not permitted to raise new issues in the reply brief, those issues of fraud by no-disclosure or fraudulent representation which were raised in the Amended Reply to 3rd Amended Statement of Defence go to no issue and accordingly the evidence of pw2 and pw6 which were sought to be legitimized by the amendment are hereby discountenanced by me."
I find that it is the exact same scenario here. The Claimant cannot raise for the first time a fresh cause of action, new ground or new issue not set out in her complaint. How then is the defendant expected to respond to the issue raised by the claimant as to the alleged take-over of staff liabilities of the defunct Platinum Habib Bank by the defendant? There must be a close to pleadings and no party can be allowed to steal a march on the other. The claimant had the option of amending its processes to include this ground but refused to.
Therefore on the authority of Zeneca Vs Jagal (supra), the claimant’s pleadings in her amended Reply to the Amended Statement of Defence and her deposition in support of such pleadings would be discountenanced by this court. I so hold.
I would now proceed to the issue of whether there was a transfer of the Claimant’s employment from Platinum Habib Bank Plc to Keystone Bank Limited. The Claimant tendered Exhibit C8 as the employment letter between her and this defendant. I have closely examined this exhibit and I find that there was no reference, express or implied to her employment with Platinum Habib Bank Plc. The Claimant was on the face of Exhibit C8 offered probationary employment for 6 months and confirmation subject to attainment of certain goals. The conditions attached to the employment were attached to Exhibit C8.
The claimant here appended her signature to Exhibit C8 stating that she read and understood the terms and accepted same. It has not been shown to have been obtained under duress or mistake or other vitiating factors. The words are crystal clear. And where the wordings in a document are clear, the courts must give effect to them. In Hilary Farms Ltd. & Ors. V. Mv. Mahtra Sister Vessel To Mv. "Kadrina" & Ors, (2007) 6 SCNJ 292 Ogbuagu JSC in his concurring Judgment at page 311, paragraphs 10 - 15 had this to say: "The above conditions are clear and unambiguous that they need no interpretation. It need to be stressed and this is also settled that if parties enter into an agreement, they are bound by the terms...." See also Egbereh V. Nimrah 2008 Vol. 758 LRCN."
See also Alhaji Rasaki Abiola Ekunola V. Central Bank of Nigeria & Anor (2005) LPELR-11414(CA) where the Court of Appeal held that;.“..Where a document is clear and unambiguous the operative words in it should be given their simple and ordinary meaning. See: UNION BANK OF NIGERIA LTD. V. OZIGI (1994) 3 NWLR (Pt. 333) 385.''
I find here that the clear wordings of Exhibit C8 do not disclose a transfer of the claimant’s employment from Platinum Habib Bank Plc to the Defendant. This issue is hereby resolved against the Claimant. I so hold.
For the second issue which is whether it is the letter of employment or the Human Capital Policies and Procedures Manual Revised 2013 that regulates the Claimant’s employment with the Defendant, recourse must still be had to Exhibit C8. While Exhibit referred to the terms and conditions contained in it as governing the employment relationship, the court must necessarily refer to Clause 1 under the heading “Terms of Employment”. It provides thus;
“All employees are expected to comply with the bank’s code of conduct and regulations as contained in the Human Capital Staff Policy and all such other circulars and policy statement that may be issued from time to time. Should an employee be guilty of misconduct, be convicted of a criminal offence or conduct his or her self in such a manner as to bring Keystone Bank Limited into disrepute, then the bank may cease to require the services of the employee.”
The clause reproduced above clearly incorporated Exhibit C5 into the contract of employment. The Defendant cannot argue that Exhibit C5 was not incorporated especially as sanction for noncompliance with Exhibit C5 was provided for under Clause 1 of the terms which were said to be applicable to the employment contract by the employment letter, provides for the sanctions could extend to the termination of the employment relationship.
I therefore do not hesitate to find that Exhibit C5 as well as Exhibit C8 governed the employment relationship between the parties here. This is especially as it is trite that more than one document can constitute the employment contract. This issue is therefore resolved in favour of the claimant. Exhibit C5 applies to the claimant’s employment contract and I so hold.
For the final issue here, which is whether the Claimant’s employment was lawfully terminated by the Defendant, I have closely examined the contents of Exhibit C5 and C8. Exhibit C8 under Clause 5 with the heading “Severance” provides thus;
“Either party shall determine the contract by giving (1) month notice or payment for the same period of notice”.
Immediately after this clause is Clause 6 titled “Acceptance” which provides;
“If the above terms of employment are acceptable to you, please sign the endorsement at the bottom of the enclosed copy of this letter and return to the undersigned”
Now it is not in doubt that the claimant signed this document, conveying her acceptance of the terms including the right to terminate the contract as contained in clause 5. See page 4 of Exhibit C8. The Claimant also here does not have a relief challenging the non-payment of her salary in lieu of notice as Exhibit C1 stated that the termination was with immediate effect. Rather the claimant’s grouse is with the alleged non-compliance with the provisions of Exhibit C5 particularly Clause HCP 106 (6.9). What learned claimant counsel failed to avert his mind to is the fact that HCP 106 is titled “Staff Disciplinary Policy”. See page 44 of Exhibit C5. Now Exhibit C1 did not make any allusions to the claimant’s exit being on disciplinary grounds. One cannot read into a document what is not contained therein. That is the position of the law.
When Clause 5 of Exhibit C8 is considered, I find that the Defendant has a right to terminate the claimant’s contract without necessarily being for disciplinary reasons. And he who hires has the right to fire. See the case of SHUAIBU & ORS VS NBC PLC (COCA-COLA) 2020 LPELR-52110 (CA) where his lordship Wambai, JCA had this to say;
“The law is trite that an employer who hires an employee has the corresponding right to fire him at any time and in so far as that was done within the contract of service, the employee has no redress in Law. Similarly, the employee has the corresponding right to terminate or determine at any time the contract of employment between him and his employer and so far as that was done within the terms of the contract of employment, the employer will have no remedy in Law. Thus, under the common Law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all, so long as he acts within the terms of the employment, his motive for doing so is irrelevant. This is the nature of a contract of employment which gives either party to the contract the right to bring the employment to an end with or without notice”
I therefore find that in the absence of a specific relief hinged on a failure of the defendant to give adequate notice or payment in lieu thereof, the court is bound to find that the claimant’s employment was properly terminated and the defendant is not bound to adhere to the provisions of Clause 106 of Exhibit C5 except in disciplinary cases. I so hold. This issue is therefore resolved against the claimant.
In view of the court’s resolution of these issues, I find that the termination of the claimant’s employment was lawful and the employment contract was properly brought to an end. The contractual relationship having ended, the defendant is not obliged to pay the claimant any salaries or perquisites of office. I must and hereby refuse reliefs 1,2,3,4 and 5. They are dismissed accordingly.
Coming to reliefs 6 and 7, which is for the payment of gratuity to the claimant, I rely on the finding supra to the effect that the claimant’s employment with the defendant was a fresh employment and there was no transfer of the claimant’s employment from Platinum Habib Plc to the defendant and find that the claimant’s employment was from the 5th of August 2011 to November 8th 2013, a period of 2 years. Exhibit C5 in clause 5.0 of HCP 103 provides for a gratuity scheme. However to qualify for 100% of this gratuity scheme, employees were required to have spent a minimum of 5 years in the defendant’s services. However, clause 5.5 provides that in the event of a termination or a dismissal, no payments will be made under this scheme to the employee.
This represents the agreement of the parties here and binding on the parties as strongly contended by the Claimant herself that it applied to her. As the claimant was only employed by the defendant in 2011 and left 2 years later in 2013, I must resolve this issue against the claimant. By Exhibit C5, the claimant did not qualify for the payment of gratuity and therefore Reliefs 6 and 7 must and hereby fails. It is dismissed accordingly.
With no wrongdoing established on the part of the defendant, I hereby refuse Relief 8 and dismiss it accordingly.
There also exists no legal basis for the award of costs of this action in favour of the claimant. Relief 9 is therefore dismissed accordingly.
On the whole and for the avoidance of doubt, the claimant’s case fails and is dismissed in its entirety.
Parties are to bear their respective costs
Judgment is entered accordingly.
………………………………………………..
Hon. Justice P.A. Bassi
Judge
COUNTERCLAIM
The counterclaim here is for ;
a) Return of the Toyota Avensis Car assigned to the Defendant to Counter-claim while she was in the employment of the Defendant/Counter-claim and which car she refused to return to the Defendant/Counter-claim upon the termination of her employment.
Or in the alternative
b) Payment of the sum of N5,698,606.93 being the net book value of the Toyota Avensis car assigned to the Defendant to Counter-Claim while she was in the employment of the Defendant/Counter-Claimant and which car she refused to return to the Defendant/Counter-Claimant upon the termination of her employment and accrued interest thereon as at the 28th of February 2018.
c) Interest on the said sum of N5,698,606.93 at the rate of 22% per annum from the 28th of February 2018 until judgment and thereafter at the rate of 22% per annum until the entire sum is liquidated.
d) Cost of the action in the sum of N1,000,000.00.
I would start with a resolution of relief (a). The defendant to the counterclaim does not dent being allocated a Toyota Avensis car by the Counterclaim while in employment. The Defendant to the Counterclaim also does not deny it is still in her possession. In this court’s opinion, this qualifies as an admission. In the case of HENSHAW VS EFFANGA & ANOR (2008) LPELR-4075(CA), Omokri,JCA citing the case of " Onyenge V. Ebere (2004) 13 NWLR (Pt. 889) 20, held that an admission by a party against his interest is best evidence in favour of his adversary in a suit.” I find this principle applies her. Ownership of the car is not in dispute. The defendant to the counter claim has admitted having the counterclaimant’s car in her possession. This situation is as clear as they come.
I am not unmindful of the contention of the learned counsel to the defendant to the counterclaim that the witness deposition of the Counterclaimant’s witness was incompetent and inadmissible on the grounds that it failed to comply with Section 13 of the oaths Act. In resolving this issue, I would refer to the case of Majekodunmi & Ors Vs Ogunseye(2017) LPELR-42547 (CA) where the Court oof Appeal per Tsammani, JCA held as follows;
“To determine this issue, I find it necessary to state the legal status of a Written Statement on Oath. It should be noted that, unlike an affidavit per se, a Written Statement on Oath filed in Court is not evidence, unless it has been duly adopted by the witness at the trial. In other words, a Written Statement on Oath will only be evidence to be used by the Court in the determination of the Plaintiff's Claim, if it has been adopted by the person who deposed to it as his testimony during the trial. If it is not so adopted, it is deemed abandoned and therefore cannot be examined by the trial Judge. An Affidavit on the other hand is the evidence of the witness made in writing. Thus, whether or not the deponent appears in Court, such depositions are capable of being evaluated by the Court as evidence. See Splinsters (Nig.) Ltd & Anor v. Oasis Finance Ltd (2013) 18 NWLR (pt.1385) p.188 at 227 per Izoba, JCA; Agagu v. Mimiko & Ors (2009) 7 NWLR (pt.1140) p.34; Oraekwe v. Chukwuka (2012) NWLR (pt.1280) p.87 at 201; Thus, in the case Kalu Igu Uduma v. Prince Ama Arunsi & 14 Ors (2010) LPELR - 9133 (CA), Ogunwumiju, JCA said:
“I am minded to go a step further and to make a distinction between Affidavit evidence in procedure begun by Originating Summons as against Statement of witnesses on Oath at an election proceeding or proceeding began by Writ and to say that in respect of the latter scenario, where the Written Statement is to be adopted again on Oath by the maker before his Cross-Examination on it, whatever defect in the Original Oath in respect of the witness statement has been cured by the second Oath made in Court before the judex prior to the adoption of the witness statement by the maker and his subsequent Cross-Examination. See the case of Udengha v. Omegara CA/PH/EPT/173/2008 unreported, delivered on 30th March, 2010."
Similarly, in the case of Hon. Fabian Okpa v. Chief Alex Irek & Anor (2012) LPELR - 8033 (CA), Ndukwe - Anyanwu, JCA, relying on the case of Akpokemovo v. Aga (2004) 10 NWLR (pt.881) p.394 said:
"This Court has consistently held that a witness Statement on Oath is different from an Affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence.... On the contrary, a witness statement is not evidence. It only becomes evidence after the witness is sworn in Court and adopts his statement. At this stage at best it becomes evidence in Chief. It is therefore subjected to Cross-Examination after which it becomes evidence to be used by the Court. If the opponent fails to Cross-Examine the witness, it is taken as the true situation of facts contained therein."
It is obvious that Ogunwumiju and Ndukwe Anyanwu, JCA are saying the same thing but in different words. The effect therefore is that, a Written Statement on Oath becomes evidence upon which the Court can act, only if it has been adopted on Oath at the trial by the deponent. It therefore means that where the Written Statement on Oath was adopted at the trial without any objection by the Defendant, he cannot later challenge the competence of that statement.”
I find the above dictum applies here. The Counterclaimant’s witness adopted his deposition at trial after being sworn in. That cures whatever defect there may be in the written statement on Oath and I so hold. Furthermore, the defendant to the counterclaim had an opportunity at trial to object to the counterclaimant’s deposition on Oath and he failed to do us. He cannot be heard to complain at this point.
This issue is therefore resolved against the defendant to the counter claim. The counterclaimant’s witness statement on Oath is hereby declared competent and shall be relied on by the court in the resolution of this suit. I so hold.
Having found that the counterclaimant’s deposition is competent and in view of the unequivocal admission of the Defendant to the Counterclaimant that she was assigned a Toyota Avensis by the Counterclaimant which is still in her possession, I find that relief 1 succeeds and the defendant to the Counterclaim is hereby ordered to return the Toyota Avensis to the Counterclaimant within 7 days of today. I so order.
In view of the grant of relief 1, I hereby refuse the alternative reliefs 2 and 3. They are refused and dismissed accordingly.
I must also refuse relief 4 as evidence has been placed before the court in support of this relief. Relief 4 is hereby dismissed accordingly.
Judgment is entered accordingly.
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Hon Justice P. A. Bassi
Judge