➥ CASE SUMMARY OF:
Mr. Agafie Paul v. Fidelity Bank Plc (November 16, 2022, NICN/AWK/32/2018)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Labour / Employment.
➥ CASE FACT/HISTORY
The claimant commenced this suit on 19 October 2018 vide a complaint, statement of facts and accompanying processes.
By amended statement of facts filed on 28 October 2019, the claimant is praying for the following, inter alia: ‘A declaration that the claimant is entitled to his gratuity having been eased out of his employment by the defendant either by way of credit or debit in his own account evidencing payment of gratuity to the claimant. A declaration that the continuous debit of the claimant’s current account by the defendant without paying his gratuity is null and void and of no effect.’
➥ ISSUE(S)
I. Whether the claimant has placed before this Honourable Court sufficient material establishing his case by preponderance of evidence/balance of probabilities?
➥ RESOLUTION(S) OF ISSUES
[CLAIM SUCCEEDS]
↪️ ISSUE 1: IN CLAIMANT’S FAVOUR.
[THE DEFENDANT ASKED THE CLAIMANT TO RESIGN
‘No doubt, an employer reserves the right to call whoever it wants as a witness. However, an employer who simply calls anyone to testify stands the risk that if the claimant’s testimony is more believable, that defence witness who was not involved in the facts leading to the case but is called as a witness, would end up an unbelievable witness. This is exactly the scenario playing out in the instant case. The impression of the defendant about the claimant as stated in paragraphs 8 and 9 of its statement of defence dated 21 May 2019 is that the claimant was not new to marketing as shown by his curriculum vitae and claimant had previously operated or worked in marketing Unit in his former bank, UBA between 2004-2006 prior to his joining defendant Bank. I believe the testimony of the claimant that it was actually because of claimant’s inability to meet the marketing target of N680 million that the defendant through the then Head of HR Department advised claimant to resign. The evidence of CW is made qualitative and believable than that of DW who was not even a staff of the defendant when all of this transpired between the claimant and the defendant. I find and hold that the evidence of the claimant that he was asked by the named officer of the defendant to resign has not been controverted by the defendant given that the former Team Head of HR Department was not called as a witness to controvert the claimant’s evidence. The claimant’s evidence outweighs that of the defendant in this regard and I accordingly find and hold for the claimant in that regard.’
‘The claimant did not leave anyone in doubt that he resigned involuntarily. In the form attached to Exhibit CW9 the claimant was asked in question 11 what organizational improvement claimant could suggest that would result in greater job satisfaction for all employees, the claimant suggested given (sic) consideration to relationship officers especially those that were redeployed from operation background to marketing and organizing credit training and relevant job functions for staff. This entry is pretty clear that the reason for leaving stems from management decision. I am satisfied and convinced with the evidence of the claimant that he was forced to resign because his redeployment from operation background to marketing did not yield the result expected of claimant by the defendant and I so find and hold.’
THE CLAIMANT IS ENTITLED TO HIS SEVERANCE PACKAGE AND GRATUITY
‘In paragraph 21 of claimant’s amended statement of facts, he stated that having terminated claimant’s appointment in February 2015, he was expecting his gratuity with the defendant to be credited to his account and other severance packages due to him, but years after his termination of work, the defendant sat on both his severance packages and his gratuity. In reaction, the defendant pleaded in paragraph 7 of its reply to the claimant’s amended statement of facts that it was due to the claimant’s blantant refusal to accept the end of service statement sent to him that made it impossible for the defendant to act further on any indebtedness or entitlements due to claimant. The defendant went on to put the claimant to the strictest proof of the allegation thereof. I think the burden is on the defendant to prove by the terms and conditions of the service of defendant bank that the claimant must accept the end of service statement before he will be paid his severance packages and gratuity. Where that is not shown by the defendant, the claimant should be given what is due to him by the defendant. I so hold.’
THE DEFENDANT CANNOT HACK INTO A CUSTOMER’S BANK ACCOUNT ON THE GROUND OF INDEBTEDNESS
‘The point is that with Exhibit DW5 expressly instructing the defendant to place a lien on claimant’s gratuity till the expiration of claimant’s loan of ₦962, 000, it was absolutely wrong for the defendant to debit the claimant’s account as that was not instructed or permitted by the claimant. In Polaris Bank Ltd v. Yayamu Global Services Ltd & anor (2022) LPELR-57376 (CA), the Court of Appeal held per Adah, JCA that: “The law is settled and sacrosanct that for a bank to freeze, place a caution or any form of restraint on its customer’s account, there must be a Court order… See GTB v. Adedamola & ors (2019) LPELR-47310 (CA).” And by Kwajaffa & ors v. Bank of the North Ltd (1998) LPELR-6371 (CA) “… the bank has no right to transfer money be it assets or liabilities from one account to the other without prior notice and accent of the customer.” The law of contract requires that both parties to a contract must fulfill their contractual obligations. See Wema Bank Plc v. Osilaru (2008) 10 NWLR pg. 170. Hacking into a client or staff’s account on grounds of indebtedness or for whatever reason, particularly where express instructions have been issued and subsisting tantamounts to an illegality for which the customer or employee is entitled to damages. I am satisfied that the claimant has made out a case here in terms of relief (3). I so hold.’
CLAIMANT IS ENTITLED TO HIS GRATUITY
‘Relief (6) is for an order compelling the defendant to credit the account of the claimant with N64, 017.67 as his legitimate balance from the gratuity less the loan and its cumulative interest granted him. In paragraphs 18 and 19 of his pleadings, the claimant averred that by loan payment schedule given to the claimant, the 36 months cumulative interest on the loan is N221, 639.67k add both loan to ₦962, 000 and interest will amount to N1, 183, 639.67. See the loan amortization payment schedule – Exhibit CW4. That when the sum of N1,183,639.67k is taken away from the claimant’s gratuity of N1,247,656.00k it will be to the credit of N64, 017.67 which the claimant seeks in relief (6). Paragraph 19 and 20 of claimant’s further written deposition validated the claimant’s pleadings. Accordingly, I hold that the claimant is entitled to relief (6). I so grant.’]
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.
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✓ DECISION:
‘On the whole, and for the reasons given, the claimant’s case succeeds.’
➥ FURTHER DICTA:
⦿ THE NICN ADMITS COMPUTER GENERATED DOCUMENTS AND RESERVING IT FOR PROBATIVE VALUE
As a policy, minded by section 12 of the National Industrial Court Act 2006, this Court relaxes the evidential requirement of section 84 of the Evidence Act 2011 when computer generated documents are in issue; admitting such a document but reserving the probative value for consideration in terms of the merit of the case. See Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4 June 2018. See also Mr. Dandson O. Obi v. Access Bank Plc unreported Suit No. NICN/LA/406/2013 the judgment of which was delivered on July 16, 2018. — Justice J.I. Targema.
⦿ PROVING ENTITLEMENTS IN LABOUR MATTERS
An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. This Court also cautioned that it may be fatal if, in proving an entitlement and even if the instrument is referred to, the employee does not indicate the clause, section, article or paragraph that grants the entitlement claimed given that the employee should not expect that it is the Court that will shop for the relevant article that substantiates the claim prayed for. This is the context within which the claimant can succeed in the present case. — Justice J.I. Targema.
⦿ PRE-JUDGEMENT INTEREST MUST BE PROVED
Relief (11) is a claim for pre-judgment interest. The principle is that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by statute or contract/agreement between the parties or principle of equity such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. See A.G Ferrero & Co. Ltd v. Henkel Chemicals Nigeria Ltd (2011) LPELR-12 (SC); Polaris Bank Ltd v. Centre Point Travel Agency Ltd (2022) LPELR-57359 (CA) and Skymit Motors Ltd v. UBA Plc (2020) LPELR-52457 (SC). This Court does not grant pre-judgment interest. See Kurt Severinsen v. Emerging Markets Telecommunication Service Limited (2012) 27 NLLR 374 at 464 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. Relief (11) accordingly fails and is hereby dismissed. — Justice J.I. Targema.
➥ LEAD JUDGEMENT DELIVERED BY:
Justice J.I. Targema
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
O.O. Ofiaeli.
⦿ FOR THE RESPONDENT(S)
John Onyeakpa.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FREEZING CUSTOMER ACCOUNT / TRANSFERRING FUNDS FROM ONE ACCOUNT TO ANOTHER
In Polaris Bank Ltd v. Yayamu Global Services Ltd & anor (2022) LPELR-57376 (CA), the Court of Appeal held per Adah, JCA that: “The law is settled and sacrosanct that for a bank to freeze, place a caution or any form of restraint on its customer’s account, there must be a Court order… See GTB v. Adedamola & ors (2019) LPELR-47310 (CA).” And by Kwajaffa & ors v. Bank of the North Ltd (1998) LPELR-6371 (CA) “… the bank has no right to transfer money be it assets or liabilities from one account to the other without prior notice and accent of the customer.”
➥ REFERENCED (OTHERS)