IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: 24 NOVEMBER 2022 SUIT NO. NICN/ABJ/159/2018
BETWEEN
Eric Ivivie Baror - Claimant
AND
Polaris Bank Ltd - Defendant
REPRESENTATION
Ibrahim Idaiye, with Miss U. K. Bikini, Mrs K. K. Gold and Philip Adu, for the claimant.
Zaidu Abdullahi, Annas Mora and Idris Ahmadu, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant filed this suit vide a complaint against the defendant on 5 June 2018 against Skye Bank Plc. But by the order of court granted on 21 October 2020, Skye Bank Plc was substituted with Polaris Bank Ltd, the present defendant. This necessitated the amendment of the originating processes. Accordingly, by the amended statement of facts, the claimant is praying for the following reliefs against the defendant:
(a) A DECLARATION that the action of the Defendant in booking expired temporary overdraft facilities (TODs) and advance payment guarantee (APG) (being outstanding balances owed the Defendant by some Defendant's customers) in the name of the Claimant is wrong, void, invalid, illegal and oppressive.
(b) A DECLARATION that Claimant has fully paid down to the Defendant the auto loan advanced the Claimant in March 2010 in the sum of N2,723,800.00.
(c) A DECLARATION that Claimant is not indebted to the Defendant in the course of his employment relationship with the Defendant.
(d) A DECLARATION that Clamant is entitled to reference letters, proper and accurate evaluation or recommendation by the Defendant to a third (3rd) party in a future employment.
(e) A DECLARATION that Defendant breached its duty of care owed Claimant by giving misleading/false and erroneous pieces of information by way of reference to Claimant’s new employers.
(f) A DECLARATION that Defendant’s detention, seizure, retention or withholding of Claimant’s original particulars, documents, receipts or papers and the spare key to his car is oppressive, unjust and a breach of contract.
(g) A DECLARATION that Defendant’s report of Claimant to CR Services (Credit Bureau) PLC or any other credit bureau over a fully paid auto loan and an imposed facility owed Defendant by some companies standing to Claimant name till date with both kept in the record of the credit bureau for public consumption for years is wrong, defamatory/injurious to his reputation, a breach of contract, oppressive and illegal.
(h) A DECLARATION that Defendant's communication of false and misleading information to Enterprise Bank Ltd and Union Bank Nig. Plc of Claimant’s indebtedness to Defendant is libelous, injurious and damaging to his trade, professional career and reputation which caused his employers to shun, discredit and terminate his employment.
(i) A MANDATORY ORDER of Court compelling Defendant to hand over, release and deliver the original particulars, documents, receipts or papers and spare key of the car, being the basis of the auto loan, to the Claimant.
(j) A MANDATORY ORDER of Court directing the Defendant to always issue a proper and accurate evaluation concerning the Claimant upon a recommendation or reference being requested by a third (3rd) party from Defendant.
(k) A MANDATORY ORDER of Court directing Defendant to remove Claimant’s name from its list of debtors with CR Services (Credit Bureau) PLC or any other credit bureau forthwith.
(l) A MANDATORY ORDER of Court Compelling Defendant to release to Claimant the sum of N151,354:00 being the sum standing to the credit of Claimant’s staff current account number 1780020692 in Defendant’s custody after the full and final payment of the auto loan granted Claimant.
(m)A MANDATORY ORDER of Court Compelling Defendant to release to Claimant the sum of N9,932:43 being a net entitlement payable to Claimant.
(n) SPECIAL DAMAGES in the sum of N21,539,059:36 for loss of legitimate earnings from June, 2016 to June, 2018 with particulars as follows:
(i) Claimant earned the sum of N10,500,000:00 per annum as at March, 2013 under Defendant's employment.
(ii) Claimant earned the sum of N10,769,529:68 per annum from April, 2013 to September, 2014 under Enterprise Bank Ltd’s employment.
(iii) Claimant earned the sum of N15,980,230:00 per annum as at September, 2014 under Union Bank Plc’s employment.
(iv) Claimant ought to have earned at least the sum of N10,769,529:68 per annum which he earned in his employment with Enterprise Bank Ltd, having grown in the banking sector and his growth and earnings were brought to an abrupt or sudden end by the failure or refusal of Defendant to give or give an appropriate/correct reference about his person in the course of Claimant’s employment or whatever Defendant knows about him to his new employers, which failure or refusal led to his termination of employment with Enterprise Bank Ltd and Union Bank Plc and leaving the banking sector and as a result, lost two years of his earnings.
(v) Defendant knew that refusal to issue a reference letter in favour of the Claimant would amount to a loss of Claimant’s employment with Enterprise Bank Ltd.
(vi) The modest claim of N10,769,529:68 per annum for two years is based on Claimant’s earnings with Enterprise Bank Ltd.
(o) SPECIAL DAMAGES in the sum of N79,901,150:00 for loss of future earnings from July, 2018 to July, 2023, described as earnings to be earned under legitimate expectation of future earnings with particular as follows:
(i) Claimant earned N15,980,230:00 per annum in his last employment with Union Bank Plc until the conduct of Defendant’s failure or refusal of Defendant to give or give an appropriate/correct reference about his person in the course of Claimant’s employment or whatever Defendant knows about him to his new employers, which failure or refusal led to his termination of employment with Enterprise Bank Ltd and later, Union Bank Plc and leaving the banking sector and resulted in the loss of his future earnings for five years in the total sum of N79,901,150:00 based on his last earning from his last employment.
(ii) Defendant knew that refusal to issue a reference letter in favour of the Claimant would amount to a loss of Claimant’s employment with Enterprises Bank Ltd.
(iii) Defendant’s refusal/failure to give or issue an appropriate/correct reference about the Claimant affected Claimant’s ability to secure employment in the banking sector being a professional banker.
(iv) Defendant’s conduct knocked out the Claimant from employment in the banking sector and made it difficult for him to secure another employment.
(p) COMPENSATORY DAMAGES in the sum of N10,000,000:00 for libel in publishing Claimant's name in the internet (online) record of CR Services (Credit Bureau) PLC to the full glare of the world and to the detriment of Claimant’s professional reputation.
(q) GENERAL DAMGES in the sum of One Billion Naira only for Claimant’s psychological and mental torture, pains, suffering, worry anxiety, anguish, illness and fear of the future caused by the conduct of the Defendant.
(r) N1,000.000:00 being the cost of this action.
2. I note that in the amended complaint, the claimant claims are listed as reliefs (a) to (m) but in the amended statement of facts, he claims in paragraph (53) reliefs (a) to (r) as reflected above. The law is that the statement of facts (statement of claim) supersedes the complaint (writ of summons). See Stowe & anor v. Bestowe & anor [2012] LPELR-7838(SC) and Garan v. Olomu [2013] LPELR-20340(SC). Accordingly, where the claims in the complaint (writ of summons) and statement of facts (statement of claim) conflict, a court is to prefer the claims in the statement of facts (statement of claim). See Ezenwa v. Oko & ors [2008] LPELR-1206(SC), which held thus:
…it is settled law that the statement of claim supercedes the writ of summons and that what is claimed in the writ but omitted in the statement of claim is deemed abandoned while what is not claimed in the writ but claimed in the statement of claim becomes the claim before the Court though subject to the payment of appropriate filing fees where appropriate.
3. This being so, the reliefs (a) to (r) in the statement of facts as listed above shall be the claims of the claimant in this matter.
4. In reaction, the defendant filed its defence processes urging the Court to dismiss the claims of the claimant as being frivolous and baseless. The case accordingly went to trial.
5. At the trial, the claimant called three witnesses: the claimant testified on his own behalf as witness CW1; Chris Nwosu (subpoenaed), a Risk Consultant with Arizona Insurance Brokers, Abuja, testified as witness CW2; and Ejomafuvwe Ariemu (subpoenaed), a businessman, testified as witness CW3. The claim ant tendered Exhibits CW1 to CW38. For the defendant, only one witness testified as DW: Tonu Nwabia, a Senior Manager with the defendant. The defendant tendered 2 documents marked as Exhibits D1 and D2.
6. At the close of trial, the defendant filed its final written address on 18 August 2022, and the claimant filed his on 26 September 2022. The defendant’s reply on points of law was filed on 17 October 2022.
THE CASE BEFORE THE COURT
7. To the claimant, he was an employee of the defendant from 2008 to 2013 and served the defendant as a Business Development Manager before voluntarily resigning his employment with the defendant in March 2013. That he moved his services to another bank, Enterprise Bank Nig. Ltd. That having worked with Enterprise Bank Nig. Ltd, he was forced out of the employment as a result of defendant’s refusal to give a reference on his person on the ground that he was indebted to his former employer. He got another employment with Union Bank Plc and the same refusal to issue a reference in his favour played out with same ground of indebtedness to his former employer. He was again forced out of the employment.
8. Meanwhile, that in the course of his employment, he handled transactions with some of the defendant's customers who collected temporary overdrafts. Upon the failure of the customers to repay/refund to the defendant the money on the overdraft, the sums of money were imposed on him as his debt owed the defendant and withdrawals were made from his account without his knowledge and consent to satisfy the debt imposed on him.
9. That he also collected a car loan which he made arrangement to pay off in full. In considering the wrongful imposition of overdrafts on him and the subsequent forceful withdrawals made from his account by the defendant, the claimant contends that he is “not indebted to the defendant, sums of money more than the sum of the car loan having been withdrawn from his account”.
10. The claimant went on that the defendant, in an oppressive mindset that the claimant was indebted to it, sent the claimant’s name to be published in a credit bureau. This credit bureau published claimant’s name as having been indebted to the defendant and the publication was for the whole world to see. That by this conduct, the claimant was defamed.
11. To the claimant, the defendant’s case is that it acted rightly in refusing to give reference to third parties concerning the claimant in his future employment. That this refusal was laid on the ground of the defendant's policy that the claimant did not pay to it a sum of money that was booked against him from temporary overdrafts granted to customers, on his advice, that were not recovered. Also, that the claimant did not refund a car loan that was grated to him. That following this, the defendant contended that in line with Central Bank of Nigeria directives, it gave the claimant’s name to a credit bureau to be published as a debtor to the defendant.
12. To the defendant, the claimant was its former employee who had worked for many years for it. That sometimes in the year 2014, the claimant got employment with a different Bank and, therefore, resigned his appointment and moved to the different Bank. That his new employers, as it is customary with banking practice, requested for reference from the defendant, which the defendant stated they were unable to give due to the fact that temporary overdraft granted by the claimant were not cleared and also that his car loan was not repaid. That the claimant’s case is that owing to non-issuance of reference he became unemployed and also that he was defamed by the Bank for the Bank’s action of placing his name on CBN Credit Bureau of Debtors.
13. Accordingly, that the defendant’s case is that the failure to give reference to the claimant is predicated on the ground that the claimant had whilst in the employment of the defendant granted temporary overdrafts to customers which were not recovered and hence booked as loan against the claimant in line with the Bank policy. That it is the Bank’s position that the claimant while in the employment of the defendant was granted car loan which he never repaid and, therefore, indebted to the bank. That in line with CBN directives the name of the claimant was included in the Credit Bureau and there was nothing defamatory about the publication. That the failure of the claimant to comply in line with the extant regulation of the defendant cover (sic) the temporary overdraft granted made the defendant to book same as debt on the claimant.
THE SUBMISSIONS OF THE DEFENDANT
14. The defendant submitted two issues for determination, namely:
(i) Whether the claimant has proved his case to be entitled to the reliefs sought from the Court.
(ii) Whether the Honourable Court is conferred with jurisdiction to determine the claim of the claimant bordering on tort.
15. On issue (i), the defendant submitted that in civil matters the burden of proof lies on the claimant to prove his case, referring to sections 131, 132 and 133(1) of the Evidence Act 2011, which provides as follows:
131(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
132 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given.
16. That from the claimant’s claim as in relief (a), the claimant seeks the Court to declare the action of the defendant “on booking over draft granted to which the bank’s policy for inability to recover same as illegal, wrong and invalid”. That by the evidence before the Court which is Exhibit D2, the bank had stated that any Business Development Manager as the claimant who issues Temporary over draft (TOD) which be recommends and is unable to recover same, the TOD shall be booked as a loan against the Business Development Manager. that from the Exhibit D2, the clamant is unable to prove that the repayment was made in accordance with the exhibit. That the claimant has not proved what is illegal or void in agreement with policy, citing Okoye v. Nwankwo [2014] 6 SCNJ 395 at 424 on the issue of who asserts must proof as required by sections 131(1) and 132 of the Evidence Act 2011.
17. Further on the issue of proof, that the claimant in reliefs (b), (c), (e), (f), (g), (i) and (k) on payment of debt of auto loan not being indebted to the defendant, the defendant submitted that once again there is no evidence before the Court to show that the auto loan was repaid. That the law is settled that the customer is duly bound to prove payment of loan, citing Tilley Gyado & Co. (Nig) v. Access Bank Plc [2019] 16 NWLR (Pt. 1669) 399 436, which held thus: “Where a Customer of a Bank admits taking a loan facility, it has the responsibility of proving that it had repaid the loan” — Ishola v. Societe Generale Bank [1997] 2 NWLR (Pt. 488) and Saleh v. Bank of the North [2006] 6 NWLR (Pt. 976) 316 referred to. To the defendant, the reliefs sought as already denied, which center mainly on payment of auto loan granted have not be proven by any scintilla of evidence, urging the Court to dismiss the claim in line with the Evidence Act 2011 particularly sections 131 and 132, and Tilley Gyado & Co. (Nig) v. Access Bank Plc (supra).
18. For issue (ii) i.e. whether this Court has jurisdiction over the claimant’s claim bordering on tort, the defendant submitted that the this Court is a creation of statute, and that section 254C(1)
(a) - (m) of the 1999 limits the jurisdiction of the Court. That section 254C(1)(a) - (m) has to be examined to ensure that it confers jurisdiction on the Court, citing Coca Cola (Nig) Ltd v. Akinsanya [2017] 17 NWLR 74 SC at 139. The defendant went on that jurisdiction is the threshold and life wire of any matter and delimited by the Constitution, citing Optimum C & P Dev. Ltd v. Ake Shareholders Ltd [2022] 9 NWLR (Pt. 1835) 225 at 235 and Ufomba v. INEC & ors [2017] LPELR-42079(SC); [2017] 13 NWLR (Pt. 1582) 175. On the general jurisprudence on jurisdiction and effect of lack of it, the defendant cited Madukolum v. Nkemdilim [1962] - citation was not supplied; and Ohakim v. Agbozo [2010] 19 NWLR (Pt. 1226) at 216. And that the claim of the claimant is the fulcrum upon which the court shall use to determine whether it has jurisdiction or not, citing AG, Federation v. AG, Lagos [2017] 8 NWLR (Pt. 1566) 20.
19. The defendant then submitted that the claim of the claimant juxtaposed by section 254C of the 1999 Constitution shows that the Court does not have jurisdiction to entertain this matter. That the main claim of the claim catalogue (a) to (m) in the claimant dwells essentially on defamation which are tortious and not within the purview of section 254C of the Constitution, referring to Bisong v. Unical [2016] LPELR-41246(CA), which held that a careful examination of section 254C of the 1999 Constitution will not reveal that its power extend to entertaining a claim in tort. Accordingly, that given Bisong v. Unical (supra) the claim of the claimant is tortious and so this Court has no jurisdiction to entertain this matter. That issue (ii) should accordingly be resolved in favour of the defendant and the Court, urging the Court to dismiss the case for want of jurisdiction.
20. In conclusion, the defendant submitted that the Court should decline jurisdiction to entertain this matter bordering on defamation which is tortious in nature and not in line with section 154C of the 1999 Constitution; and hold that the claimant did not prove his entitlement to the claims as required by the burden of proof.
THE SUBMISSIONS OF THE CLAIMANT
21. The claimant submitted five issues for determination, namely:
(1) Whether the action of the defendant of unilaterally imposing or booking expired temporary overdraft facilities (TODs) and advance payment guarantee (APG) (being outstanding balances owed defendant by some of defendant’s customers) in the name of the claimant is wrong in law.
(2) In view of the entire deductions made from the claimant’s account, whether the claimant was indebted to the defendant in any way, including the matter of car loan advanced to claimant.
(3) Where issue No (2) above is answered in the negative, whether the action of the defendant of reporting claimant to a credit bureau for the purpose of publishing his name as a debtor for the whole world to read is not injurious and defamatory to the claimant's person.
(4) Whether defendant’s action of providing false and misleading pieces of information and refusing to give reference concerning the claimant to his future employers is not wrong in law, oppressive and unfair.
(5) Whether claimant is entitled to the reliefs of special damages in this action as per loss of legitimate earnings and loss of future earnings.
22. Regarding issue (1), the claimant that four companies had a customer/banker relationship with the defendant and in the course of which term loans of the sum of N2,662,899.52 (Two Million, Six Hundred and Sixty-Two Thousand and Eight Hundred and Ninety-Nine Naira, Fifty-Two Kobo) only were granted the companies. The claimant in his official capacity as the Business Development Manager of the defendant’s branch, advised the defendant to grant the term loans to its customers. This advice was subject to the approval of other senior officers under the employment of the defendant. These term loans are also called or described as TOD (temporary overdraft facilities) and APG (advance payment guarantee). In addition, the claimant in evidence, particularly in his witness statement on oath at paragraph 18 Table iii, listed the companies with their account numbers and outstanding loan obligations that were cleared up and transferred into his account. By this act, the loans were imposed on the claimant.
23. That there were series of correspondence between the claimant and the defendant’s agent on the matter of imposition of term loans. Exhibits CW26, CW28, CW29, CW30, CW31, CW32, CW33 and CW34 are some of the correspondences exchanged between parties. For example, Exhibit CW31 is the clearest on this matter of imposition of loan terms as Fidel gave a breakdown in his email to the claimant, which he tabulated and headed “Makeup of the illegal facility” and Exhibit CW26 clearly stated the sums of money allegedly owed by the claimant, particularly the sums outstanding on the auto loan as at 12 May 2013. In evidence, the claimant established the matter of imposition of the term loans, same facts having been clearly pleaded, referring to the claimant’s witness statement on oath at paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35.
328To the claimant, it can thus be strongly concluded that he proved the matter of imposition of term loans. This he did by using documentary evidence particularly Exhibits CW26, CW28, CW31 and CW32 to further strengthen his oral evidence. Thus, he discharged the burden of proof of the matter of imposition of loans on him by the defendant as required by section 131(1) of the Evidence Act. That this is the requirement of “he who asserts must prove”, citing Famuroti v. Agbeke [1991] 5 NWLR (Pt. 189) 1. That at this stage, the onus of proof shifted to the defendant to discharge the allegation of imposition of the term loans, referring to section 133(l) and (2) of the Evidence Act. That the law is that if a party who has the initial burden to lead relevant evidence on a particular issue does so prima facie, he throws the burden of rebutting that evidence upon the defendant, citing Union Bank (Nig) Ltd v. Ajagiu [1990] 1 NWLR (Pt. 126) at 341.
40 That the defendant in response to claimant’s action admitted both in pleadings and evidence that it booked the term loans as loans against the claimant, referring to paragraph 4(a) of the defendant’s statement of defence and its paragraphs 5 and 6 of its witness statement on oath, which directly admitted the matter of transferring loans of its customers to the claimant. Here, the defendant did not deny the allegation. He rather affirmed the allegation in examination in chief thus: “…and the said TOD were booked as loan against the Claimant in line with extant bank policy on unpaid TOD”. That admission has been defined in Black’s Law Dictionary (9th Edition) at page 53 as “any statement or assertion made by a party to a case and offered against that party, an acknowledgement that those facts are true”. That this definition is in accord with section 20 of the Evidence Act. To this extent, admitted facts need no further proof. That it is now fully settled that whatever fact is admitted is deemed established, citing Mba v. Mba [2018] WRN 1 and Chukwunyere v. State [2018] 30 WRN l.
26. Considering the conduct of the defendant, after having admitted booking third parties’ loans against its employee, the claimant referred to Animashaun v. UCH [1996] LPELR-492 (SC), which held that an employee cannot be surcharged (that is, by making somebody repay from personal funds any losses stemming from negligent or intentional mismanagement of a fiduciary responsibility) by an employer without first being given a hearing on the issue. that in the present case, the claimant was not given a hearing at all as stated in paragraph 21 of his witness statement on oath.
27. That section 5 of the Labour Act Cap L1 LFN 2004 prohibits the deduction, or any agreement to deduct the wages/salaries of an employee for or in respect of any fines, provided that, with the prior consent in writing of an authorized labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker. In this case, the defendant did not obtain the consent by the claimant; rather, it imposed the loan term, TOD or APG on the claimant unilaterally by relying on its bank policy as it stated in evidence particularly its paragraphs 5 and 11 of the witness statement on oath. That note should also be taken of International Labour Organization (ILO) Convention No. 95 (Protection of Wages Convention, 1949). That the defendant infringed on the claimant’s right to be fairly heard on this matter. He was not given a query or given the opportunity to the present his own side of the matter of the unpaid loan terms. That the defendant merely reached a decision of imposing the loans on him and thereafter, began making deductions from his salaries. That section 9(2) and (5) of the Labour Act 2004 is instructive here. That sections 21(1)(b) and 46 of the Labour Act 2004 criminalizes the defendant's conduct of imposing loans on claimant and the ill-treatment of the claimant respectively. Consequently, the piece of evidence given by DW under cross examination that there was an implied agreement between parties for transferring third parties’ loan to the claimant is against the law having been a product of falsehood, misrepresentation or coercion and this is against the provision of section 45 of the Labour Act.
28. The claimant then urged the Court to give a purposeful interpretation to the applicable sections of the Labour Act by holding that the defendant's conduct of imposing, withholding or transferring its customer’s non performing credit facilities or term loans to the claimant was wrong in law, an unfair labour practice, unwholesome, offensive to the Constitution and contrary to public policy and good conscience.
29. For issue (2), the claimant submitted that it is worthy of note that employment contracts and personal loans between an employer and an employee are two distinct contracts, having distinct subject matters, citing Lewis v. UBA [2016] LPELR-40661(SC), which held that the bank (employer) having fulfilled its obligation in the loan contract by providing the funds, the next step is the obligation for repayment by the employee which does not cease just because the employment ended. That following this decision, where the claimant was really indebted to the defendant, he couldn’t have avoided the repayment.
30. That the facts of this matter are that the claimant as an employee of the defendant collected an auto/car loan from the defendant. The claimant took the auto/car loan in March 2010 in the sum of N2,723,800:00 (Two Million, Seven Hundred and Twenty-Three Thousand, Eight Hundred Naira) only. By the time of the claimant’s resignation from the defendant’s employment in March 2013, the total repayments from his salary account for the auto loan was N2,908,679:23 (Two Million, Nine Hundred and Eight Thousand, Six Hundred and Seventy-Nine Naira, Twenty-Three Kobo) only. Yet, by Exhibit CW26, the sum outstanding on the loan as at 12 May 2013 was N527,733.78 (Five Hundred and Twenty-Seven Thousand, Seven Hundred and Thirty-Three Naira, Seventy-Eight Kobo) only.
31. That the claimant in paragraph 14 Table I of his witness statement on oath gave evidence on the sum deducted from his account as agreed between the parties on serial number B of Table i to be in the sum of N1,092,087:00 “(One Million, Ninety Two and Eighty Seven Naira)” only. That by the time of his resignation in March 2013, the defendant had deducted the sum of N998,587:35 (Nine Hundred and Ninety Eight Thousand, Five hundred and Eighty Seven Naira, Thirty Five Kobo) only from the claimant's account without his consent over the imposed loans. This was given in evidence at paragraph 14 of his witness statement on oath particularly at serial number C. It is important to state that the tenor of the loan was for a period of five years and from May 2013 to May 2014 after the claimant’s resignation, the claimant had inflows into his account to the tune of N244,854:01 (Two Hundred and Forty Four Thousand, Eight Hundred and Fifty Four Naira, One Kobo) only. This is in evidence at paragraph 14 of the witness statement on oath particularly serial number D.
32. The claimant gave evidence that an addition of the wrongful or unauthorized deduction from his account in serial number C and the inflows into his account upon his resignation in serial number D would amount to N1,243,441:36 (One Million, Two Hundred and Forty Three Thousand, Four Hundred and Forty One Naira, Thirty Six Kobo) only, being serial number E on Table i. That is to say, the sum of money that would have accrued in his favour was more than the reminder (sic) of the auto loan remaining unpaid. Thus, he misused the total sum that ought to have accrued in his favour from the outstanding loan indebtedness and it showed that the defendant was owing him the sum of N151,354 (One Hundred and Fifty One Thousand, Three Hundred and Fifty Four Naira) only as stated in serial number F of Table i. The sum that went into serial number D of Table i were (sic) clearly stated in paragraph 15 and its Table ii. The claimant gave evidence at paragraph 19 of his witness statement on oath and showed the breakdown of deduction made from his account as stated in serial number C of Table i.
33. The claimant went on that DW, under cross-examination, gave evidence that the monthly withdrawals or deductions from the claimant’s account in satisfaction of the imposed term loans were in the sum of N110,954:00 (One Hundred and Ten Thousand, Nine Hundred and Fifty Four Naira) only per month and that the deductions made on the claimant’s account were more than Sixteen months. But going by the sixteenth month, this is in the total sum of N1,775,264:00 (One Million, Seven Hundred and Seventy Five Thousand, Two Hundred and Sixty Four Naira) only. That Exhibit D1 (the claimant’s printed statement of account) was tendered by the defendant’s counsel through DW. Under cross-examination, DW admitted several deductions made on the claimant's account on monthly basis as shown on Exhibit D1, which he identified and are as stated in Table iv. DW further identified other deductions of 12 March 2013, 10 April 2013, 10 May 2013, 12 June 2013 and asserted that the deductions are more than sixteen.
34. In addition, Table ii of paragraph 15 of the claimant's witness statement on oath is recorded in Exhibit D1. That it is safe to conclude, in view of these calculations, that the claimant was not indebted to the defendant as at the time of publication of his name in a credit bureau. This is particularly so when his alleged indebtedness was sent to a credit bureau on 30 January 2015 and published in Exhibit CW38. At worse, the claimant had paid off the auto loan latest on 30 May 2014. This is in view of the entire calculation made by the claimant and further confirmed by the defendant’s witness under cross-examination to the effect that withdrawals were made from the claimant's account in satisfaction of the debt owned the defendant by its customers. It is important to point out that defendant admitted the claimant’s paragraphs 11 and 12 of the statement of facts as to the monthly deductions from his accounts in the sum of N52,699:96 in satisfaction of the auto loan granted the claimant. That the matter of monthly deductions from his account over the auto loan in the sum of N52,699:96 (Fifty-Two Thousand and Six Hundred and Ninety Nine Thousand Naira, Ninety Six Kobo) from March 2010 to May 2012 needs no further proof. Same goes for monthly deductions from June 2012 to March 2013 when the monthly deduction became N163,654:11 (One Hundred and Sixty Three Thousand, Six Hundred and Fifty Four Naira, Eleven Kobo) only, citing Mba v. Mba (supra) and Chukwunyere v. State (supra).
35. That given the evidence of DW, upon admitting that they withdrew or deducted the sum of “N10,954:00 (One Hundred and Fifty Four Naira)” only on monthly basis for more than sixteen times from the claimant’s account, a summation of the monthly withdrawal would amount to N1,775,266:4 (One Million, Seven Hundred and Seventy Five Thousand, Two Hundred and Sixty Six Naira, Four Kobo) only. This was partly captured in Table iv of paragraph 19 of the claimant's witness statement on oath. These withdrawals began on 12 June 2012. When this total sum is added to the deduction made on the auto loan, the sum would run over and above the auto loan granted the claimant.
36. The claimant continued that placing the contents of Exhibit CW26 side by side with Exhibit D1, this Court will have no choice but reach a conclusion that the claimant is not indebted to the defendant. Exhibit CW26 is a document from the defendant to the claimant dated 12 May 2014 wherein the defendant gave a net financial position of the claimant as at 12 May 2013. The exhibit stated the claimant’s balance on auto loan to be: N358,701:87 (Three Hundred and Fifty Eight Thousand, Seven Hundred and One Naira, Eighty Seven Kobo) only and N169,031:91 (One Hundred and Sixty Nine Thousand, and Thirty One Naira, Ninety One Kobo) only. An addition of both will give a total sum of N527,733:78 (Five Hundred and Twenty Seven Thousand, Seven Hundred and Thirty Three Naira, Seventy Eight Kobo) only.
37. That when the content of Table iv as verified in Exhibit D1, is placed on the one hand and the total balance of the auto loan is placed on the other, the Court would reach a conclusion that the claimant is not indebted to the defendant. This is because when the total sum of the claimant’s auto loan in Exhibit CW26, being N527,733:78 (Five Hundred and Twenty Seven Thousand, Seven Hundred and Thirty Three Naira, Seventy Eight Kobo) only, is removed from the deduction made by the defendant from the claimant’s salary account from 12 June 2012 to 12 February 2013 being in the sum of N998,587:35 (Nine Hundred and Ninety Eight Thousand, Five Hundred and Eighty Seven Naira, Thirty Five Kobo) only, N470,853:57 (Four Hundred and Seventy Thousand, Eight Hundred and Fifty Three Naira, Fifty Seven Kobo) only would be left in favour of the claimant. That is to say, the wrongly deducted sum from the claimant’s account would be partly taken in fulfillment of the auto loan. Exhibit CW26 was properly placed before the Court. That from the pieces of evidence placed before this Court, DW admitted under cross-examination that the defendant deducted the sum of N1,900,000:00 (One Million and Nine Hundred Thousand Naira) only from the claimant’s account in respect of the term loan the defendant granted the claimant. That this is a clear case of admission, citing HNB Ltd v. Gifts Unique Nig. Ltd [2004] 36 WRN 136 and Owosho v. Dada [1984] 7 SC 14 163 - 164.
38. To the claimant, the burden of proof of non-indebtedness of the claimant to the defendant lies squarely on claimant, citing BON Ltd v. Oniyo [2002] 20 WRN 83 CA. That the claimant discharged the onus of proving repayment of the auto loan granted to him. That the High Court of Anambra State held in Co-operative Bank of Eastern (Nig) Ltd v. Eke (1976 - 1984) 3 NBLR
521 that a party who is alleged to be indebted to a bank is not to merely deny the allegation in the pleading. But he must go further and dispute its validity in law or setup an affirmative case of his own in answer to the allegation. That, this the claimant has done in this case. For emphasis, the claimant urged the Court to place Exhibit CW26 on the sum the defendant admitted therein to be owed by the claimant on the auto loan side by side with the deductions wrongly made on the claimant’s account to reach a decision, one way or the other.
39. Issue (3) is is basically on defamation. The claimant start with the definition of defamation, citing Sketch Publishing Co. Ltd & anor v. Ajagbemokeferi [1989] 2 SCNJ l5l at 160, Edem & anor v. Orpheo (Nig) Ltd & anor [2003] FWLR (Pt. 176) 585 at 595, Olaniyi v. Elero [2008] AFWLR (Pt. 411) 975 at 983 and NEPA v. Inameti [2002] FWLR (Pt. 130) 1695. To the claimant, from the tenor and details of these judicial authorities and writings of eminent scholars, defamation means the publication, without lawful justification or excuse of a statement which amounts to a disparagement of the reputation of the person of whom it is published and which tends to lower him in the estimation of right-thinking members of the public generally or to cause him to be shunned, avoided or to expose him to hatred, contempt or ridicule or to disparage or injure him in his office, profession, calling, trade or business or to injure his financial credit.
40. That the onus at all times firmly lies on the plaintiff to prove to the satisfaction of the court that the tort of defamation has been committed against him. That there are no restrictive measures or straitjacket ways of deciding when a statement amounts to a defamation or a disparagement of reputation. In the final analysis, whether or not a statement amounts to a disparagement of reputation will surely depend upon all the probabilities of each particular case and upon the natural tendency of the publication having regard to the surrounding circumstances, citing Egbe v. Adefarasin [1987] I SC 1 at 45.
41. That in the case of defamation of character, be it libel or slander, there are certain basic facts, which a plaintiff must prove for his case to take off. The claimant then referred to Nsirim v. Nsirim [1990] 3 NWLR (Pt. 138) 285 SC, Ojeme v. Momodu [1994] 1 NWLR (Pt. 323) 685 CA at 699, Okpozo v. Bendel Newspaper Corp. [1990] 5 NWLR (Pt. 153) 652 CA, Giwa v. Ajayi [1993] 5 NWLR (Pt. 294) 423 at 431 CA and Anete v. Sanusi [2002] FWLR (Pt. 93) 1902 CA. That in Alawiye v. Ogunsanya [2003] FWLR (Pt. l82) 1873 at 1900, it was held that the plaintiff in an action for defamation must prove:
(l) The publication of the offending words.
(2) That the words complained of refer to the plaintiff.
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(3) That the words are defamatory of the plaintiff.
(4) Publication to third parties.
(5) Falsity or lack of accuracy of the words.
(6) That there are no justifiable legal grounds for the publication of the words.
42. The claimant went on that there are two arms of defamation: slander and libel. That from the above, it can be gleaned that the defendant defamed the claimant in view of the claimant’s pieces of evidence before this Court. That this is especially so of Exhibit CW38. That in the claimant’s witness statement on oath and the witness statements on oath of CW2 and CW3, the claimant established that he was defamed by the defendant to wit: paragraphs 28, 29, 48, 50, 51(Q), (S) and (T). Exhibit CW38 is a publication made by CR Services Credit Bureau with information supplied to the Bureau by the defendant. The defendant contended that the Central Bank of Nigeria instructed it to send the name for publication. But that nothing was placed before the Court showing the alleged instruction. That the most appropriate thing the defendant would have done was for it to produce a written instruction from Central Bank of Nigeria.
43. That two other witnesses gave evidence for the claimant. The first was Chris Nwosu (CW2), who saw the publication, read it and heard people discuss the matter, especially the claimant’s schoolmates and friends. He narrated the effect the publication had on the claimant in very clear terms. That it should be noted that witness CW2 was the claimant’s course mate in the claimant’s undergraduate days. Witness CW3 was the claimant’s cousin who lived with the claimant, through whom Exhibit CW38 was tendered. He gave evidence and narrated the effect the publication had on the claimant in very clear words. The claimant, in his oral evidence placed before the Court, established his training, standing, reputation, character, and integrity in the society in his witness statement on oath in paragraphs 3, 4, 5, 6, 7, 8, 36, 37, 38, 39 and 49. That CW2 in his witness statement on oath clearly narrated at paragraphs 4, 5, 6,7 and 8 the claimant's qualities. CW3 in paragraph 3 of his witness statement on oath gave evidence touching on the claimant’s integrity, standing and character.
44. The claimant also tendered several documents to show his training, standing, character, integrity or achievement in the society and the banking sector particularly. These documents are to wit: Exhibits CW1 - CW23. Exhibits CW1 - 8 showed the eight banks he worked with throughout his banking career without a single blemish. Exhibits C9 – C11 are documents confirming some of his appointments. Exhibits C12, C12A and C12B are promotion letters. Exhibit CW13 is a commendation letter. Exhibits CW 14 - 23 are credentials from institutions and certificates for training undertaken by the claimant. That from the above, the claimant successfully placed his good character, integrity, reputation and standing before the Court. That all these qualities of his were injured by the defendant’s conduct of publishing his name as a debtor for the whole world to see. This became worse as the publication was known to be instigated by his employer. That annoyingly, the defendant is raising a justification for its conduct by relying on extant Central Bank of Nigeria regulations to submit the name of the claimant as its debtor to a credit bureau. Also, that the claimant was truly indebted to it. The duty imposed on the defendant here is to prove that the claimant is a debtor. The defendant herein must justify that the claimant was truly indebted to it, citing Dumbo v. Idugboe [1983] ANLR 37 and ACB Ltd v. Apugo [200l] FWLR (Pt. 42) 38.
45. The claimant continued that it is important to note that the defendant admitted supplying the information to the publisher. That the defendant by that conduct participated in the publication, citing Anita v. Sanusi [2002] FWLR (Pt. 93) 1902 at 1925 and Offoboche v. Ogoja LG [2001] FWLR (Pt. 68) 1051. Publication is the making known of the defamatory matter to a third party. This third party is the credit bureau which the defendant admitted to have sent the information to. Generally, publication is key, referring to Nsirim v. Nsirim [1990] S SCNJ 174. That in this present case, the defendant admitted it sent the pieces of information to a credit bureau. Therefore, it is not necessary for the claimant to prove publication where the defendant makes a direct and positive admission of it in pleadings, citing Economides v. Thomopulos & Co. Ltd [1956] SCNLR 40, “Ofoegbu v. Onwuka [2008] AFWLR (Pt. 412) 114, at 1148 - 1149”, Salawu v. Yusuf [2007] 12 NWLR (Pt. 1049) 707 and Ndukwe v. LPDC [2007] 5 NWLR (Pt. 1026) 1. That the defendant in paragraph 20 of its statement of defence admitted supplying the information to a third party, the credit bureau. The claimant having repaid the auto loan granted him, there was no basis for publishing the claimant’s name to a third party, citing Wema Bank Ltd v. Kanunwi [1975] I SC 5.
46. On the issue of jurisdiction raised by the defendant on whether this Court is conferred with jurisdiction to determine the claim bordering on tort of defamation, the claimant submitted that this Court has the jurisdiction to sit over this matter to the extent of determining the tortious liability of the defendant in defaming the claimant. That it is pertinent to note that this Court is a creation of the Constitution with its powers clearly spelt out in section 254C(1) and (2) of the 1999 Constitution. This section of the Constitution created a specialized court in this Court where section 254C(1)(a), (f) and (k) opened with these words: “related to or connected with”. That these words gave wide powers to this Court to deal with matters related or connected to all matters listed in section 254C(1) (a), (f) and (k). This is particularly so where the matter arose out of the claimant’s employment with the defendant. That this Court has the exclusive jurisdiction to hear this matter, citing Skye Bank Plc v. Iwu [2017] LPELR-42595(SC), which held that the provisions of the Constitution must be construed together rather than disjointedly in their interpretation. That by a combined reading of the above provisions, this Court has exclusive jurisdiction to entertain this claim on defamation.
47. That for this Court to decide whether it has jurisdiction, the necessary materials for determining jurisdiction are: the claimant’s statement of facts, citing Ikine v. Edjerode [2001] 18 NWLR (Pt. 745) 446 at 499; the claimant’s complaint, citing AG, Kwara State v. Olawole [1993] NWLR (Pt. 272) 645 at 674 - 675; and evidence adduced before the Court as in this present case where parties have given evidence and closed their respective cases, citing Barclays Bank of Nigeria Ltd v. CBN [1976] ANLR 409 at 424. That the claimant pleaded in paragraphs 28, 29, 48, 50(C) and (D) of his statement of facts of the defamatory matter which showed that it arose in the course of employment with the defendant. The claimant also claimed in his complaint, particularly reliefs (f) and (i), prayers touching on the imposed loans and auto loan as per the matter of defamation. Finally, the claimant in the course of trial gave evidence that the entire defamatory acts arose in the course of his employment with the defendant. The claimant then urged the Court to hold that it has jurisdiction to entertain this action. On the whole, that the conduct of the defendant was defamatory, derogatory, negatively affected the reputation, character, good name, personality, lowered his estimation of right thinking members of the society, exposed him to ridicule, contempt, hatred, caused people to shun and avoid him, and discredited his profession.
48. Issue (4) relates to work reference. That claimant complained of the defendant’s refusal to issue a reference in his favour as required by his future employers, particularly Enterprise Bank Ltd and Union Bank Nig. Plc. That this was as demanded by his employers which the defendant refused to issue on the ground that the claimant was indebted to it. The claimant thus claims against the defendant inter alia a right to work reference. In paragraphs 26 and 27 of the claimant’s witness statement oath, the claimant gave evidence to the effect of the defendant’s refusal to issue him a work reference. This was clearly stated in Exhibit CW27. The defendant admitted this in paragraph 13 of its statement of defence. The effect being that the claimant couldn’t keep both jobs. For example, Exhibit CW24 terminated the claimant’s employment with Union Bank Nig. Ltd.
49. To the claimant, generally, there is an implied term in contracts of employment imposing a duty on the employer to provide work reference in respect of its employee, whether former or existing. That the defendant in the instant case is a Bank and thus, a financial institution. This means that the defendant has an obligation to give a work reference to, or in respect of, the claimant, which work reference must be true, accurate, fair and not misleading to a future employer as the defendant did in this case. That this is common in the financial services industry like this of the defendant where the claimant has been trying to build a career. The claimant pointed out that under the common law, there was no absolute obligation on employers to provide reference to an employee. But case law in the United Kingdom (UK) has developed a number of exceptions to the common law position. That it appears that the current position, in certain circumstances, is that an employee can require an employer to give a reference. That UK case law suggests that it may be appropriate in some cases to imply a term into a contract of employment that the employer will provide the employee with a reference at the request of a prospective employer. The basis for this implied term was aptly stated in the case of Malik v. Bank of Credit and Commerce International SA (BCCI) [1997] UKHL 23 where the House of Lords held that employers must take care not to damage their employees’ future employment prospects, by harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standards set by the implied trust and confidence term.
50. The claimant went on that there are a number of cases from courts in the UK on this issue, which cases he is relying on to drive his point that the defendant acted wrongly. For example, in Spring v. Guardian Assurance [1995] 2 AC 296, the plaintiff was dismissed from office by the defendant (an insurance company and hence a financial institution). He got another job which required a work reference from the defendant. The work reference given by the defendant was not favourable, described by the trial judge, Judge Lever QC, as the “kiss of death”. In consequence, the plaintiff lost the new job and so brought an action against his former employer on several grounds including negligent misstatement, malicious falsehood and breach of contract. The House of Lords held that an employer who gives a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him in negligence if he failed to do so and the employee thereby suffered economic damage. The House of Lords also held that an implied term of the contract existed between the plaintiff and the defendant to ensure that reasonable care was taken in the compiling and giving of the work reference; and that the defendant was in breach of that implied term. Lord Slynn in the House of Lords commented that even if there is no universal duty on an employer to give a reference, it would seem that contracts may exist when it is necessary to imply such a duty. Lord Woolf (as he then was) then attempted to specify the circumstances which would enable such a term to be implied. Those circumstances are:
(1) The existence of the contract of employment or of services;
(2) The fact that the contract relates to an engagement of a class where it is normal practice to require a reference from a previous employer before employment is offered; and
(3) The fact that the employee cannot be expected to enter into a class of employment, except on the basis that the employer will on the request of another employer, made not less than a reasonable time after the termination of the previous employment, provide a full and frank reference to the employer.
51. In another case, Bartholomew v. Hackney London Borough [1999] IRLR 246, the Court of Appeal held that in giving a reference to a former employee, a former employer owes a duty of care to the former employee to provide a reference which is true, accurate and fair; fairness determined by having regard to the whole of the reference and the surrounding context, as a number of discrete statements, though factually accurate in themselves, could nevertheless read as a whole give an unfair or potentially unfair impression to a recipient of the reference. In TSB Bank Plc v. Harris [2000] IRLR 157, a reference provided to a potential employer for an existing employee which disclosed customer complaints unknown to the employee, was found to be a breach of the employer's duty and was held to be a breach of trust and confidence to disclose complaints to others, if the employee was not given an opportunity to answer them. In “Cox & Amp; Cross v. Sun Alliance Life Ltd [2001] IRLR 448”, the Court of Appeal made it clear that the question of whether an employer who provides a reference for a former employee is in breach of the duty to take reasonable care to ensure that the reference is accurate and fair will usually involve making reasonable inquiry into the factual basis of the statements in the reference. That the take away from this case is that it is advisable for employers to confine unfavourable statements on employees to those matters into which they have made reasonable investigation and have reasonable grounds to believe are true; and where an investigation is discontinued, unfavourable comments should be confined to matters that were investigated before the employee's departure.
52. The claimant then submitted that from the above decisions, this Court should take a cue from other jurisdictions such as the courts in the UK. It is with this mindset that the claimant prayed the Court to hold that an employer is indeed obligated in law to provide an employee with a reference. An employer owes a duty of care against negligent misstatement i.e. not to mislead or misrepresent to a potential or future employer to whom the reference is provided. That this approach accords more with best practice in labour and employment law. Consequently, the Court should grant his reliefs on this ground.
53. Issue (5) relates to the special damages claimed by the claimant. To the claimant, he made a number of reliefs bordering on damages from this Court. These are compensatory, special and general damages. But that he would briefly deal with special damages as to the extent that he is entitled to the reliefs. That the courts have taken a position that the onus of proof of special damages is on the plaintiff and this must be strictly proved, citing Obasuyi v. BVL [2000] 112 WRN - the page is not supplied. To discharge this burden, the plaintiff must show by credible evidence that he is indeed entitled to the award of special damages, citing Oladehin v. CTML [1978] 2 SC 23. That is, the evidence adduced by the plaintiff must show the same particularity as is necessary to its pleading, referring to Imana v. Robinson [1979] 3 - 4 SC 1 at 23, Oshinjinrin and ors v. Elias and ors [1970] l All NLR 153 at 156, Odulaja v. Haddad [1973] 1 All NLR 191 at 196. Accordingly, where the precise amount of a particular item of damage is known or has become manifest before the trial, wither because it has already occurred and has thus become crystallized or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damages and strictly proved.
54. The claimant then pointed that he dealt with the matter of proof having placed sufficient pieces of evidence before the Court. On the part of the defendant, that it did not cross-examine on the claims and did not challenge the pieces placed before the Court as to these reliefs. In Calabar v. Ikot [2000] 23 WRN 142, the Court of Appeal addressed the effect of a counsel declining to cross-examine a claimant’s items of particularized heads of special damages, which is by declining to cross-examine on the items of particularized heads of special damages, the inescapable inference was irresistible: to wit, that the defendants conceded the items of special damages. The claimant also referred to Lead Bank Plc v. Omni- B (Nig) Ltd [2007] 33 WRN 78, which held that unchallenged evidence, without more can constitute sufficient proof of special damages.
55. In conclusion, the claimant prayed the Court to grant all his prayers.
THE DEFENDANT’S REPLY ON POINTS OF LAW
56. In replying on points of law, the defendant first submitted that the address of counsel should not and cannot take the place of evidence; and no matter well written an address is, it cannot take the place of evidence, referring to Adua v. Essien [2010] NWLR (Pt. 1213) 141 at 167.
57. That the claimant’s counsel cited the case of Animashaun v. UCH [1996] 1 NWLR (Pt. 476)
65 in an attempt to establish the principle that an employee cannot be surcharged by an employer without first being given fair hearing on the issue. To the defendant, this case is not apposite in the circumstances given that the ratio of the case dealt with issue of retirement without fair hearing. Furthermore, that it also establishes the issue of debt without notice. Whether there is issue of proof in civil matters without evidence which the Supreme Court holds that same is speculative, it is the defendant’s submission that the case of the claimant is distinguishable from Animashaun v. UCH (supra), urging the Court to discountenance same.
58. That the claimant's counsel made heavy weather on issue of deductions from the claimant and referred to section 5 of the Labour Act 2004. To the defendant, the claimant’s counsel is trying to make a case different for the claimant at address stage. That there is no evidence before the Court to support this and, urging the Court to discountenance same as the address of counsel cannot take the place of evidence, citing Adua v. Essien (supra).
59. The defendant continued that the claimant in his written address on issue of reference relied on foreign cases to drive home his point. That the law is settled that foreign cases are of persuasive authority and can only be relied upon when there is absence of Nigerian authority on the issue, citing Abdulkareem v. Lagos State Government [2016] 15 NWLR (Pt. 1535) 177.
60. That the claimant argued extensively on the issue of special damages and wherein cited a number of authorities to buttress his point. The defendants adopted its submission in its final address that the issue does not relate to an issue of which the court can sit over, urging the Court to discountenance this argument.
61. Without conceding that this Court has jurisdiction to deal with issue of special damages which is tortious, the defendant submitted in response to claimant’s argument on issue (3) that the law on special damages has long been settled. That the claimant stated on this issue that when evidence led is unchallenged, special damages are deemed proved. To the defendant, this submission is misleading. That he Supreme Court in Oyiorah v. Onyiorah [2016] NWLR (Pt.
1695) - the page is not supplied stated thus:
Unchallenged evidence can constitute sufficient proof of special damages. That will be case where special damages are pleaded with particular and evidence is led in support but the Defendant fails to challenge the evidence.
That this is not the case here, urging the Court to discountenance the arguments herein.
62. In conclusion, the defendant urged the Court to discountenance the submissions of the claimant and to dismiss to the case in its entirety as lacking in merit.
COURT’S DECISION
63. I carefully considered the processes, evidence and submissions of the parties. I must first remark on the written addresses of the parties. Aside from the numerous typographical and grammatical errors noticeable in all the written addresses, the long paragraphing by the claimant of his written address calls for special condemnation. For instance, paragraphs 4.5, 4.7 and 4.9 run into two pages each, while paragraphs 4.8, 4.11, 4.18 and 4.20 all run into three pages each. This is not good legal writing at all. I have had course to denounce this and indeed advised counsel to take advantage of Chinua Asuzu’s Masterclasses. In Lucia Balonwu v. Voluntary Service Overseas (VSO) International unreported Suit No. NICN/ABJ/280/2018, the judgment of which was delivered on 22 July 2020, for instance, this is what I said at paragraph 76:
In Mr. Joseph Abang Bisong v.Union Bank of Nigeria Plc unreported Suit No. NICN/LA/ 318/2014, the judgment of which delivered on 9th July 2019, I denounced amongst others the long and windy sentences used by the writer of the claimant’s final written address in that case and recommended Chinua Asuzu’s recently released Learned Writing (Partridge), 2019 to him. I will do the same to the writer of the defendant’s final written address in the instant case; and I do so with the following additional texts by same author: The Uncommon Law of Learned Writing (Partridge), 2015 and Brief Writing Masterclass (Partridge), 2017. It is disheartening that in this era of simple and user-friendly English, where the mantra, as Chinua Asuzu puts it in his texts, is “write to be read”, we see paragraphing of the sort used in the defendant’s final written address in the instant case. As another mantra goes: a word is enough for the wise.
I repeat the same admonition here to the claimant’s counsel. A word, it is said, is enough for the wise.
64. The claimant is claiming 18 reliefs. Reliefs (n) and (o) are further subdivided into sub-reliefs. In these claims, are claims for defamation. The defendant argues that this Court has no jurisdiction over the said claims in defamation. The claimant thinks this Court has jurisdiction. The question whether this Court has jurisdiction over defamation in particular, and tort in general, has been a vexed one. The earlier decisions of this Court held that this Court does not have jurisdiction over defamation even if it arises from the workplace. Naturally, the Court of Appeal has been approached to make a determination in that regard. Unfortunately, the decisions of the Court of Appeal has oscillated in that regard.
65. Akpan v. Unical [2016] LPELR-41242(CA) and Bisong v. Unical [2016] LPELR-41246(CA), for instance, respectively affirmed the decision of Obaseki-Osaghae J of the National Industrial Court of Nigeria (NICN) that the NICN does not have jurisdiction over the tort of defamation. And in MHWUN v. Dr Alfred Ehigiegba unreported Appeal No. CA/B/401/2013, the judgment of which was delivered on 4 May 2016, the Court of Appeal Benin Division per His Lordship Oniyangi, JCA affirmed the decision of the Edo State High Court sitting in Benin City, which held that jurisdiction over defamation lies with the State High Court, not the NICN. The thing to note here is that the Court of Appeal in same case (same Appeal Number) but different panel of Justices came to the very opposite conclusion in Medical and Health Workers Union of Nigeria v. Dr Alfred Ehigiegba [2018] LPELR-44972(CA), where the same Benin Division of the Court of Appeal held that the NICN has jurisdiction over defamation arising from the workplace given the “matters incidental thereto or connected therewith” phrase used in section 254C(1) of the 1999 Constitution. Earlier decisions of the NICN, where it was held that the NICN does not have jurisdiction over defamation, were held by the Court of Appeal in [2018] LPELR-44972(CA) to have been wrongly decided.
66. Because of this 2018 Court of Appeal decision, and the rule that in the event of conflict, the most recent of the conflicting decisions of an appellate court is to be preferred, this Court had to hold in succeeding cases that it has jurisdiction over defamation. This was the case in two cases: Mr Olu Fasan v. FBN Capital Limited unreported Suit No. NICN/LA/87/2014, the judgment of which was delivered on 18 June 2019 and Lucia Balonwu v. Voluntary Service Overseas (VSO) International (supra).
67. However, the Court of Appeal appears to have retreated; and so in Ecobank Nig Ltd & ors v. Idris [2021] LPELR-52806(CA), it held that the NICN does not have jurisdiction over defamation. In the words of His Lordship Saidu Tanko Hussaini, JCA:
…It is clear from the list of items specified at Section 254C(1) of the Constitution and indeed Section 254C(2) (3), over which the NIC had jurisdiction to entertain, cases or matters which border on defamation of character is not one of those items and it should not be so construed to confer jurisdiction on the National Industrial Court (NIC) merely because those defamatory remarks were made in the course of Respondents employment with the 1st Appellant and thus, the defamatory remarks and claims for damages thereto should be entertained by the NIC…hence the National Industrial Court cannot assume jurisdiction under Section 254C(1)(a) over cases or matters founded on a claim for damages for defamation of character…
68. Adeniyi Olushola & anor v. Adolphus Yakubu [2021] LPELR-56015(CA) held that the NICN does not have jurisdiction over malicious prosecution. This position was also reached by the Court of Appeal in Adeniyi Olushola & anor v. Billa Saliu [2021] LPELR-56027(CA) and Adeniyi Olushola & anor v. Giwa Friday [2021] LPELR-56019(CA) UBA & ors v. Oladejo [2021] LPELR-55320(CA) on its part held that the jurisdiction of the NICN does not extend to “criminal matters or tort” or “to malicious prosecution, assault, detinue or any liability in tort”. In respect of “criminal matters”, this decision was given despite that section 254C(5) of the 1999 Constitution donates jurisdiction over criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the NICN by section 254C or any other Act or law.
69. All these Court of Appeal decisions are later in time than the 2018 decision in MHWUN v. Dr Alfred Ehigiegba (supra). And so by law I am compelled to follow them. This means that I cannot exercise jurisdiction over the claims of the claimant in defamation in the instant suit. This being so, reliefs (g), (h) and (p) cannot be litigated in this Court. I so rule.
70. This leaves out the remaining reliefs of the claimant, which reliefs relate to claims as to the loan he said he took from the defendant (and hence the defendant’s detention, seizure, retention or withholding of his original particulars, documents, receipts or papers and the spare key to his car is oppressive, unjust and a breach of contract), the defendant having to attribute to him loans it gave to third parties i.e. conversion of temporary overdrafts (TODs) as loan to the claimant, the defendant refusing to give succeeding employers in his regard work references and monetary sums claimed as special damages.
71. From the exhibits supplied by the claimant, he was quite a mobile, almost an itinerant, banker. On 25 May 2001, he was offered employment by Savannah Bank of Nigeria Plc (Exhibit CW1). On 23 December 2002, he was offered temporary employment by by Oceanic Bank International (Nigeria) Limited (Exhibit CW2). On 21 October 2003, he was offered an appointment by Equity Bank of Nigeria Limited (Exhibit CW3). He was confirmed by Equity Bank of Nigeria Limited (Exhibit CW9). By 11 August 2004, he was offered employment by Platinum Bank Limited (Exhibit CW4). Given the merger of Platinum Bank Plc and Habib Bank Plc, which merger gave birth to PlatinumHabib Bank Plc (Bank PHB), the claimant was transferred to the new bank (Exhibit CW5 of 15 February 2006). Bank PHB confirmed him vide Exhibit CW10 of 26 June 2006; and promoted him vide Exhibit CW12 of 27 November 2006. On 6 December 2007, the claimant offered employment by Skye Bank Plc (Exhibit CW6), the subject bank that he sued in this suit before substituting it with Polaris Bank Ltd, the present defendant. Skye Bank Plc confirmed him vide Exhibit CW11 of 11 December 2008; and promoted him twice vide Exhibits CW36 of 20 August 2009 and CW37 of 26 June 2012. On 12 February 2013, he was offered employment by Enterprise Bank Limited (Exhibit CW7). Enterprise Bank gave him commendation vide Exhibit CW13. And on 8 September 2014, he was offered employment by Union Bank of Nigeria Plc (Exhibit CW8). The letters of employment are referred to in paragraphs 4 and 5 of the claimant’s deposition; while the confirmation, promotion and commendation letters are referred to in paragraph 36 of his deposition. His certificates are referred to in paragraph 5 of his deposition.
72. The defendant’s simple argument is that the claimant did not prove any of his claims to warrant being given all the reliefs he claims. The claimant’s deposition is littered with unsubstantiated averments. For instance, in paragraph 44 of his deposition, the claimant averred that he suffered severe health challenges for which he conducted a medical test at Limi Hospital Abuja, which revealed that he had high blood pressure. There is no documentary evidence before the Court as to any of these assertions. Next, and for what it is worth, the claimant averred in paragraph 7 of his deposition that he resigned from the employment of the defendant in March 2013. There is no documentary evidence of this resignation, though the defendant in paragraph 4 of DW’s deposition admitted to this resignation. Lastly, in paragraph 23 of his deposition, the claimant averred that he recommended the facilities to be granted the companies and same was approved by a superior officer of the defendant. There is no documentary evidence of this recommendation and it is unknown who this superior officer is.
73. Also, in paragraph 45 of his deposition, the claimant says that at the time of his resignation from the defendant he was entitled to the sum of “N9,932,43K”. He then reeled out a table showing the refunds dues to him and entitlements payable to him. Relief (m) is for an order compelling the defendant to release to the claimant the sum of N9,932:43 being a net entitlement payable to claimant. I note that the sum in paragraph 45 of the deposition is “N9,932,43K”, while the sum in relief (m) is “N9,932:43”. This sum was not stated in words, and so it is unclear how to read “N9,932,43K” or “N9,932:43”. Be that as it may, I must state that this Court was not referred to any document showing his entitlement to this said sum. The twin requirements of proof of special damages i.e. proof of entitlement and where the quantum came from have not been met here by the claimant.
74. In Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/ 18/2013, the judgment of which was delivered on 4th June 2018, this Court stated the law thus:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
75. In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.
76. What this means is that the claim in relief (m) for “N9,932:43” has not been proved and so cannot be granted by this Court. It fails and is hereby dismissed.
77. In paragraphs 46 and 47 of his deposition, the claimant reeled out sums of money that he says represent loss of legitimate earnings including future earnings. No document was put forward to the Court to show his entitlement to any of the listed lost earnings. I shall address more on this when considering the claimant’s claims for special damages in reliefs (n) and (o).
78. Reliefs (a), (b) and (c) and the consequential orders claimed in their regard as per reliefs (i),
(k) and (l) bear some relationship. In relief (a), the claimant is praying for a declaration that the defendant was wrong to have booked TODs and advance payment guarantee (APG), being outstanding balances owed the defendant by some defendant’s customers, in the name of the claimant. In relief (b), the claimant prays for a declaration that he has paid the defendant the auto loan of N2,723,800.00 advanced to him by the defendant. And in relief (c), the claimant prays for a declaration that he is not indebted to the defendant at all. The story line is that the claimant actually took a loan of N2,723,800.00 from the defendant to buy a car, for which the defendant retained the spare car key and original documents/particulars of the car as some sort of guarantee for the repayment of the loan. The claimant in paragraph 9 of his deposition averred that he took a car loan from the defendant in March 2010 in the sum of N2,723,800.00. There is no documentary evidence of this loan and the terms and conditions under which the loan was granted. Neither is there evidence of the conditions of service indicating that the loan inured to him as a staff loan to warrant this Court assuming jurisdiction over it. However, in paragraphs 20, 38 and 39 of the deposition of DW, the defendant acknowledged the auto loan taken by the claimant, though said nothing of the value of the loan except that the claimant has not fully paid it.
79. Meanwhile, in the course of his duties as an employee of the defendant, the claimant recommended the advancement of loan facilities to some companies in the nature of TODs and APG. These companies defaulted in the repayment of the loans; and so the defendant converted them as loans to the claimant and so started making deductions in their regard from the claimant’s bank account with the defendant. The evidence of DW under cross-examination is thus:
The deductions from the claimant’s account was monthly. From Exh. D1, I can see 3 deductions from 12 July 2012.
Yes, I can see 10 Aug. 2012, 12 Sep 2012, 12 Oct 2012, 12 Nov 2012, 11 Jan 2013, 12 Feb 2013, 12 March 2013, all on Exh. D1. There is also 12 April 2013, 12 May 2013 and 12 June 2013.
Yes, all these dates show deductions from the claimant’s account in respect of the loan.
As per the TODs, each deduction was N110,954.
There was also a deduction on 12 July 2013 and 12 Aug. 2013.
The deductions were more than 13 in all. They were for about 16 months in all.
………………………………
Yes, Exh. D1 shows various deductions for car loan. There are two separate deductions – one for principal, and the other for interest.
80. This evidence of DW under cross-examination shows unequivocally that the defendant made deductions of N110,954 monthly from the claimant’s account to service the TODs and APG it converted as personal loans of the claimant. DW even referred to Exhibit D1 as evidencing this.
81. To the defendant, having to convert the TODs and APG to personal loans on the claimant accord’s with the bank’s policy. The defendant referred to Exhibit D2 as evidencing the bank’s policy. As part of Exhibit D2 is an internal memo from Loan Review and Monitoring to Dotun Adeniyi - ED (ERM) through Charles Ono - AGM (ERM) dated 20 December 2010. It is a review of past due TODs. In it updates on past and current TODs were given with a recommendation 2 saying that: “At the expiration of the grace period any outstanding TOD should be converted to a 12month term loan for each staff involved”. No where in Exhibit D2 did the name of the claimant feature. And no where in it was it indicated that the recommendation was even accepted. So, the internal memo of 20 December 2010 of Exhibit D2 cannot be evidence of the existence of the bank’s policy that TODs not paid for are converted as loans to staff who facilitated them.
82. As further part of Exhibit D2, there is another internal memo of 5 May 2008 from Credit Risk management Group Group to Managing Director/CEO with the subject, “Temporary Overdraft (TOD) Policy”. This internal memo in its first paragraph referred to “the approved policy on Temporary Overdraft dated January 25, 2008”. This approved policy is not before the Court. And the internal memo of 5 May 2008 seeks the approval of the Managing Director/CEO for a number of issues including the request that “Each Regional Manager that will operate the TOD policy shall execute a letter of undertaking accepting personal responsibility for all the exposures…” There is nothing before the Court to show that the Managing Director/CEO approved this request; nor is there anything before the Court to show that the claimant executed any letter of undertaking accepting personal responsibility.
83. Even the evidence of DW under cross-examination cannot be said to authenticate the claim of the existence of the said bank policy. This is what DW said:
At the 14th sheet of Exh. D2 would be found the guarantee of the claimant of the TODs. At the 14 sheet was signed by the Group Head. It says Eric to guarantee the TOD before disbursement. Eric’s guarantee is implied as per the 14th sheet. There is no exact document to show the guarantee.
84. From this evidence, it can be seen that DW acknowledged that there is no exact document to show the guarantee said to be given by the claimant. DW’s evidence is that the guarantee is to be implied from the 14th sheet of Exhibit D2. A guarantee is not a matter for implication as the defendant seems to think given that a guarantee is “a written undertaking made by one person to another to be responsible to that other if a third person fails to perform a certain duty e.g. payment of debt”. See Chami v. UBA Plc [2010] LPELR-841(SC). As it is, therefore, there is no evidence before the Court of the existence of this said bank’s policy as the defendant variously referred to in the deposition of DW. I so rule.
85. Is the defendant then right in relying on an unproved (or even if proved) policy to covert TODs and APG to personal loans? In converting TODs and APG to personal loans and charging same on the claimant, what the defendant did approximates to surcharging the claimant. This Court in several decisions has held that surcharge to be valid requires its own independent hearing. It is not something that the employer can do unilaterally. Even if the employer’s conditions of service stipulate it as a policy, which is not even the case in the instant case, the employer must still give the employee a hearing. See Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013, the judgment of which was delivered on 23 February 2016, Shefiu Adejare v. MDS Logistics Plc unreported Suit No. NICN/LA/20/2013, the judgment of which was delivered on 28 June 2016 and Mrs Omolola Shafqat Ogungbuaro v. Access Bank Plc unreported Suit No. NICN/LA/289/2014, the judgment of which was delivered on 30 October 2018, all of which applied Alhaji A. R. Animashaun v. UCH [1996] LPELR-492(SC); [1996] 10 NWLR (Pt. 476) 65. Since this was not the case in the instant case, it means that the conversion of the TODs and APG to personal loans and charging same on the claimant was unlawful and hence null and void. I so rule. Relief (a) is accordingly grantable, and so is hereby granted.
86. This leaves out reliefs (b) and (c). The argument of the claimant is that what the defendant deducted from his account as payment for the TODs and APG ought to feed the repayment of his car loan. In paragraph 10 of his deposition, DW would aver that he is “not claiming that the claimant was indebted to the defendant but that the claimant knew that the debts of the companies he gave TOD were booked as loan for him as far back as 4th June 2012 before he left the employment of the defendant”. Having held that that the conversion of the TODs and APG to personal loans and charging same on the claimant was unlawful, I agree with the claimant that the said deductions ought to have been used to service the repayment of his auto loan he took from the defendant. If this had been done, the claimant would not be indebted to the defendant. In this sense, reliefs (b) and (c) are grantable, and so are hereby granted.
87. In granting reliefs (a), (b) and (c), reliefs (i), (k) and (l) automatically become grantable. They are according and hereby granted.
88. I now turn to the claims as to work reference. The case of the claimant is that the defendant did not give him the work reference required of it when he retired from the defendant in 2013. In paragraphs 16 of his deposition, the claimant averred that Enterprise Bank Ltd wrote an email to him informing him that his former employer was not willing to write an employer’s reference. In paragraph 26 of his deposition, the claimant further averred that the defendant refused to issue references to his various employers i.e. Enterprise Bank Ltd and Union Bank Nig. Plc. And in paragraph 27, the claimant stated that the request for work reference was actually made by Enterprise Bank Ltd, but the defendant turned it down, asking that the claimant be told to contact the defendant. To the claimant, even when the defendant chose to react to request for the work reference, the defendant gave wrong information about the claimant. In all this. the claimant asserted that the defendant breached its duty of care owed to him by giving misleading/false and erroneous pieces of information by way of reference to his new employers.
89. What then was the reaction of the defendant? In paragraph 17 of his deposition, DW averred thus:
…the defendant maintained its position that the claimant should settle its indebtedness with the defendant before any referral can be made on behalf of the claimant as the claimant is aware of its obligations to the defendant. The keys and papers are kept with the defendant in tandem with the auto loan policy which is to the effect that the custody of the spare keys and original papers shall remain with the defendant till the loan is repaid.
And in paragraph 18 of his deposition, DW continued that the defendant did not refuse to issue the reference letters to the new employers of the claimant but that the defendant informed them that it was unable to issue a reference letter because the claimant is still indebted to the defendant owing to the inability of the claimant to recover TODs which were booked against the claimant. DW then admitted in paragraphs 19 and 40 of his deposition that the defendant decided not to give a referral to Enterprise Bank when it requested a reference on behalf of the claimant since the defendant had an unresolved issue with the claimant, telling Enterprise Bank to ask the claimant to get in touch with the defendant. This story line is repeated all through DW’s deposition.
90. It is thus not in doubt that the defendant refused to issue work reference in favour of the claimant; and when it chose to react, it stated categorically that it is not giving the work reference because the claimant is indebted to it vide TODs and APG. I already held this position of the defendant to be unlawful. This being so, the defendant must be held to have unlawfully refused to issue a work reference in favour of the claimant. I find the reason it gave for this refusal itself to be false and misleading.
91. The law, as established by case law authorities of this Court, is that there is now an implied term in contracts of employment imposing a duty on the employer to provide work/employment reference in respect of employees; and the work/employment reference must be true, accurate, fair and not misleading. Anything short of this could result in the employer being liable either in contract or in tort. Mr Ifechukwude Adigwe v. FBN Mortgages Limited unreported Suit No. NICN/LA/526/2016, the judgment of which was delivered on 9 July 2019, provides a useful summary of the issues and the law as treated by this Court. In the words of this Court:
[47] What then is the law relating to work references? This Court had in previous cases shown some signposts in this regard. In Ogunbayo Oluwole Michael v. Fidelity Bank Plc & anor unreported Suit No. NICN/LA/350/2013, the judgment of which was delivered on 13th December 2017, the claim for work reference which was unsupported by any pleading was rejected by this Court. In the instant case, the claimant has the necessary pleadings. In Kefre Ekpo Inyang v. Alphabeta Consulting LLP unreported Suit No. NICN/LA/550/2016, the judgment of which was delivered on 4th June 2018, a duty imposed by the employer’s handbook to issue to the employee a certificate of service was upheld as binding on the employer by this Court; and that its breach was remediable by an award for damages.
[48]It was actually in Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/ 85/2014, the judgment of which was delivered on 24th January 2016, that more insight in this area of the law was given. The claimant had prayed for an order directing the defendant to give reference of career records on demand to him. The following UK cases were first reviewed and then followed: Spring v. Guardian Assurance [1995] 2 AC 296, Kidd v. Axa Equity & Life Assurance Society Plc & anor [2000] IRLR 301 HC (QBD), TSB Bank Plc v. Harris [2000] IRLR 157, Cox & Cross v. Sun Alliance Life Ltd [2001] IRLR 448 and Bartholomew v. Hackney London Borough and anor [1999] IRLR 246. At paragraphs 42 to 46 of Kelvin Nwaigwe v. Fidelity Bank Plc, I reviewed these foreign cases and other literature and held thus:
I am persuaded by the force of these UK case law authorities that in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing. The defendant in the instant case is a Bank and hence a financial institution. This means that the defendant has an obligation to give a work reference to, or in respect of, the claimant, which work reference must be true, accurate, fair and not misleading to a future employer…
In this holding, I acknowledged an implied term in contracts of employment imposing a duty on the employer to provide work/employment reference in respect of employees; and the work/employment reference must be true, accurate, fair and not misleading. Anything short of this would result in the employer being liable either in contract or in tort. Thus where the employer does give a reference or issue a testimonial, he must give a true account of the employee’s character; for a careless or false statement may render him liable.
[49]Three of the UK cases referred to earlier deserve special elaboration here. In Spring v. Guardian Assurance, the plaintiff was dismissed from office by the defendant (an insurance company and hence a financial institution). He got another job which required a work reference from the defendant. The work reference given by the defendant was not favourable. In consequence, the plaintiff lost the new job and so brought an action against his former employer on several grounds including negligent misstatement, malicious falsehood and breach of contract. The House of Lords held that an employer who gives a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him if he failed to do so and the employee thereby suffered economic damage. In Bartholomew v. Hackney London Borough and anor (supra), the Court of Appeal held that in giving a reference to a former employee, a former employer owes a duty of care to the former employee to provide a reference which is true, accurate and fair; fairness determined by having regard to the whole of the reference and the surrounding context, as a number of discrete statements, though factually accurate in themselves, could nevertheless read as a whole give an unfair or potentially unfair impression to a recipient of the reference.
[50] And in Cox & Cross v. Sun Alliance Life Ltd (supra), the Court of Appeal made it clear that the question of whether an employer who provides a reference for a former employee is in breach of the duty to take reasonable care to ensure that the reference is accurate and fair will usually involve making reasonable inquiry into the factual basis of the statements in the reference. Accordingly, a verbal reference by Sun Alliance suggesting that Mr Cox had been suspended pending an investigation into allegations of dishonesty and that he would have been dismissed had he not resigned thus suggesting that his honesty had been in question, despite an agreement between the parties to the effect that a question as to the reason for the termination of Mr Cox’s employment would be answered by saying that Mr Cox had resigned, and that any request for “your impression of the applicant as an employee together with any additional information which you feel may be helpful to us”, would be answered in accordance with an agreed resume of Mr Cox’s career, which agreed resume was favourable and interestingly made no reference to the dispute, was held to be negligence on the part of Sun Alliance and that this negligence had caused Mr Cox’s subsequent employment difficulties.
[51] Coming to the case at hand, Exhibit C36 stated that the claimant’s employment was terminated from the Bank. I have declared this to be a nullity. In the eyes of the law it never existed. So the defendant writing that it terminated the employment of the claimant is false in the eyes of the law. This Court has long recognized that the banking sector is sensitive, for which termination with immediate effect (which is what Exhibit D11 purported to do) suggests some wrongdoing and which the employer must justify. See Andrew Monye v. Ecobank Nigeria Plc unreported Suit No. NIC/LA/06/2010, the judgment of which was delivered on 6th October 2011. There is no justification before the Court as to the act of the defendant. In Exhibit C36, the defendant was not ready “to complete the previous employer’s reference questionnaire sent to us” but gleefully wrote Exhibit C36 and urged that the new employer assists it in getting the claimant settled his indebtedness to it. If it is noted that in Exhibits C28, C29 and C30 the claimant was practically begging the defendant to intimate him of his indebtedness to the defendant, then the conclusion must be that the manner Exhibit C36 was couched was nothing but one done in bad faith. I, therefore, agree with the claimant that Exhibit C36 was issued in bad faith. It certainly does not meet the test of being “true, accurate, fair and not misleading to a future employer”; and I so find and hold. Relief (d) accordingly succeeds and so is granted. The claimant is accordingly entitled to damages on this score.
[52] The claimant claims N10 Million as damages for general and consequential damages. In Kefre Ekpo Inyang v. Alphabeta Consulting LLP, the claimant had a fixed term employment, and so damages was awarded by this Court by reference to the salary of the fixed term lost. In the instant case, the employment of the claimant is not for a fixed term. At least Exhibit C35 did not state so. Since British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276 gave the bench mark of two years’ salary as damages where the act of the employer stigmatizes the employee, I shall use the same benchmark in awarding damages to the claimant. Exhibit C35 puts the salary of the claimant as N1,920,000 per annum. This sum multiplied by two years gives us N3,840,000. I award this sum against the defendant as damages for the injurious Exhibit C36 it wrote. I so order.
92. In the instant case, I acknowledge that the defendant is a bank, and hence a financial institution. I reiterate that the banking sector is sensitive and so extreme care must be taken how its employees are treated by employers. I found earlier that the reason given by the defendant for refusing to give the work reference is false and misleading, just like it was the case in Mr Ifechukwude Adigwe v. FBN Mortgages Limited (supra). This being so, I am satisfied that the claimant in this regard has proved his case. I so hold. Reliefs (d), (e) and (j) are grantable, and so are hereby granted. I already granted relief (k).
93. Is the claimant entitled to damages from the defendant in refusing to give, and when it did, by giving false and misleading, work reference in favour of the claimant? The authorities answer in the affirmative. The claimant argues that he lost his last jobs with Enterprise Bank Ltd and Union Bank of Nigeria Plc because of the absence of a work reference by the defendant to Union Bank of Nigeria Plc. The termination of the claimant’s employment by Enterprise Bank Ltd is not evidenced by any document tendered before the Court. As it is, it is not clear if the claimant’s employment in Enterprise Bank was terminated by the bank or he just left. So the claim as per relief (n) for special damages in the sum of N21,539,059:36 for loss of legitimate earnings from June 2016 to June 2018 has no basis on four grounds: there is no evidence of his employment being terminated by Enterprise Bank Ltd; he voluntarily left the defendant bank; his claim for lost earnings in terms of Union Bank of Nigeria Ltd is also reflected in relief (o); and more importantly, his claim for lost earnings is better treated in terms of his claim for the defendant giving him false and misleading work reference. All of this means that the claimant’s claim in relief (n)(vi) for “the modest claim of N10,769,529:68 per annum for two years…based on Claimant’s earnings with Enterprise Bank Ltd”, which is the claimant for “N21,539,059:36 for loss of legitimate earnings from June 2016 to June 2018” cannot be granted given that by Exhibit CW8 dated 8 September 2014, the claimant was already working with Union Bank of Nigeria Plc. And so the question of lost earnings with Enterprise Bank Ltd does not even arise. Relief (n) accordingly fails and so is dismissed.
94. It is to be noted that claims for special damages are governed by special rules. UTC Nig. Plc v. Samuel Peters [2022] LPELR-57289(SC), for instance, held that special damages must not only be specifically pleaded, they must be strictly proved by credible evidence of particular losses. See also Luke N. Onyiorah v. Benedict C. Onyiorah & anor [2019] LPELR-49096(SC), Okafor & ors v. Obiwo & anor [1978] LPELR-2413(SC), NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). Claims for gratuity, pension, housing fund, salary, etc are all special damages and so caught up by the special rules made in that regard. See 7UP Bottling Company Plc v. Augustus (supra).
95. Exhibit CW24 is the termination letter from Union Bank to the claimant. It is dated 23 June 2016; and terminates the claimant’s appointment with effect from 24 June 2016 “as your services are no longer required”. The sensitivity of the banking sector is such that this Court has held in countless cases that a termination such as this intuits that the employee did something wrong. In any event, Exhibit CW8, the letter of employment of the claimant by Union Bank Plc states that the “offer [of employment] is subject to receipt of satisfactory responses on any background checks or other inquiries on the employee from relevant authorities as well as three (3) character references and a satisfactory medical report”.
96. I accordingly believe the claimant when he said that this termination vide Exhibit CW24 was because the defendant refused to give the work reference. But I also acknowledge that the banking history of the claimant the history of an itinerant banker. All of these factors will bear a bearing in determining the award of damages to the claimant. The claimant complained of lost future earnings from Enterprise Bank Ltd and Union Bank of Nigeria Plc, which loss is “for five years in the total sum of N79,901,150:00 based on his last earning from his last employment” — relief (o)(i). In paragraph 47 of his amended statement of facts (as supported by paragraph 47 of his deposition), the claimant stated that the “Defendant caused [Claimant/my] loss of future earnings in the total sum of N79,901,150:00 from July, 2018 to July, 2023 which can be described as earnings to be earned under legitimate expectation of future earnings…” The claimant then went on to give the particulars.
97. For an itinerant banker, how did the claimant know that he would work for five years with Union Bank of Nigeria Plc? Exhibit CW24 terminated the claimant’s appointment with effect from 24 June 2016, where did the claimant get July 2018 as the start date for his loss of future earnings? The claimant says that his last salary at Union Bank was N15,980,230:00, and that this sum when multiplied by 5 gives us N79,901,150.00. Exhibit CW8 actually puts the claimant’s annual gross compensation at N15,980,230.00. The problem like I just indicated is how the claimant came by five years as the basis for his claim? Given the itinerant nature of the banking work of the claimant, on average, given his work straddle from Savannah Bank of Nigeria Plc to Union Bank of Nigeria Plc, the claimant can be said to have worked for a only little over 2 years in each bank. On average, he can be said to have worked for 1 year at Savannah Bank, 1 year at Oceanic Bank, 1 year Equity Bank, 3 years at Bank PHB, 6 years at the defendant’s bank, 1 year at Enterprise Bank and 2 years at Union Bank. Add up these years and what we get is 15 years. Divide it by the seven banks he worked and what we get is an average of 2.14 years in any one bank. I will accordingly take 2 years as the benchmark.
98. I indicated earlier that in Kefre Ekpo Inyang v. Alphabeta Consulting LLP (supra), the claimant had a fixed term employment, and so damages was awarded by this Court for failure to issue a certificate of service by reference to the salary of the fixed term lost. In the instant case, I take the 2 years benchmark as the basis for the award of damages for refusing to give, and when it did give, for giving false and misleading work reference. The yearly salary of the claimant at Union Bank of Nigeria Plc was N15,980,230.00. If this sum is multiplied by 2, what we get is N31,960,460.00. This is the sum I hereby award as lost earnings as well as damages for refusing to give, and when it did give, for giving false and misleading work reference in terms of relief
(o). I so rule.
99. In all, the claimant’s case succeeds only in the terms already indicated. Accordingly, and for the avoidance of doubt, I make the following declarations and orders:
(1) This Court has no jurisdiction over the claims for defamation. Accordingly, reliefs (g),
(h) and (p) cannot be litigated in this Court.
(2) The claim in relief (m) for “N9,932:43” has not been proved and so cannot be granted by this Court. It fails and is hereby dismissed.
(3) It is declared that the action of the defendant in booking expired temporary overdraft facilities (TODs) and advance payment guarantee (APG) (being outstanding balances owed the defendant by some the defendant’s customers) in the name of the claimant is wrong, void, invalid, illegal and oppressive.
(4) It is declared that the claimant has fully paid down to the defendant the auto loan advanced the claimant in March 2010 in the sum of N2,723,800.00.
(5) It is declared that the claimant is not indebted to the defendant in the course of his employment relationship with the defendant.
(6) It is declared that the clamant is entitled to reference letters, proper and accurate evaluation or recommendation by the defendant to a third (3rd) party in a future employment.
(7) It is declared that the defendant breached its duty of care owed to the claimant by giving misleading/false and erroneous pieces of information by way of reference to the claimant's new employers.
(8) It is ordered that the defendant shall forthwith hand over, release and deliver the original particulars, documents, receipts or papers and spare key of the car, being the basis of the auto loan, to the claimant.
(9) It is ordered that the defendant shall remove the claimant’s name from its list of debtors with CR Services (Credit Bureau) PLC or any other credit bureau forthwith.
(10) It is ordered that the defendant shall release forthwith to the claimant the sum of N151,354:00 being the sum standing to the credit of the claimant’s staff current account number 1780020692 in the defendant’s custody after the full and final payment of the auto loan granted claimant.
(11) It is ordered that the defendant shall always issue a proper and accurate evaluation concerning the claimant upon a recommendation or reference being requested by a third (3rd) party from the defendant.
(12) Relief (n) fails and so is dismissed.
(13) It is hereby ordered that the defendant shall within 30 days of this judgment pay to the claimant the sum of Thirty-One Million, Nine Hundred and Sixty Thousand, Four Hundred and Sixty Maira (N31,960,460.00) only being damages for lost earnings as well as damages for refusing to give, and when it did give, for giving false and misleading work reference in terms of relief (o). Failure to pay this sum as ordered means that it shall attract 10% simple interest per annum until fully paid.
100. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD