➥ CASE SUMMARY OF:
Ejiro Peter Amratefa v. Access Bank (NICN/ABJ/106/2022, November 2, 2023)
by Branham Chima.
➥ SUBJECT MATTER
Reason for dismissal;
Blacklisting by CBN.
➥ CASE FACT/HISTORY
The case of the Claimant on the pleadings is that he was an employee of the Defendant who rose through the ranks from Executive Trainee to Assistant Banking Officer. The Claimant averred that the Defendant entered into a contract of employment with him by an offer letter dated February 1, 2012, which contained the terms of employment. He averred that the employment contract expressly incorporated the terms and conditions contained in the Defendant’s staff handbook with all future amendments thereto, as an instrument that would also govern the claimant’s employment. The Claimant asserts that following his meritorious contribution to the growth of the Defendant, he was promoted from the position of an Executive Trainee to an Assistant Banking Officer by a letter dated April 6, 2018. The Claimant stated that on 19th November 2018, the Defendant bank received a letter from the Economic and Financial Crimes Commission (EFCC) Kano Zone, dated 16th November 2018, directing the bank to place a Post No Debit (PND) on the account of Tropic Finance Investment. The Claimant stated that it was his responsibility to act on correspondences from the EFCC and other anti-graft agencies. In compliance with laid down banking procedures he stated that he sought approval from his superiors via email and calls to act on the letter, but received no response whatsoever. The Claimant further stated that the bank received another letter from the EFCC dated 27th November 2018 referencing the earlier letter and requesting the bank to lift the restriction from the account of Tropic Finance Investment in view of the progress made in the investigation. The Claimant averred that in compliance with the bank’s laid down procedures, he forwarded a scanned copy of the letter to the Group Managing Director’s Office through Efoli Ekot as well as to the Regulatory and Compliance Unit at the Head Office via email and sought approval to act, but his superiors did not respond to his emails. He further placed calls to Olukemi Taiwo and Chukwudi Chukwuemeka, who are both Supervisors in the Regulatory Enquiry and Response Unit Team, via their IP Phones and the Office Communicator, but also got no response. When he got no response, a man who identified himself as an officer of the EFCC started mounting pressure on the bank to comply with the directive urgently as he claimed to have been so instructed by the EFCC Kano Zonal Head, who had executed the directive and started disrupting the bank’s activities all of which were clearly captured in the bank’s CCTV recording of 30th November 2018 which is in the custody of the defendant. The Claimant stated that in the absence of any response from his superiors and in compliance with the Bank’s instructions that members of staff should always cooperate with law enforcement agents, as well as knowing that the account for which the restriction was sought to be lifted was a dormant corporate account that would require reactivation before any fund could be transferred therefrom, he complied with the directive to lift the PND. On 19th December 2018 he received queries from his superiors for lifting the PND on the account and in response explained the situation which led to him lifting the PND stating the lack of any response from his superiors as well as the disruptions of the banking business occasioned on the said date. Sequel to his response, he appeared before a disciplinary panel for lifting the PND without authorization and he was subsequently suspended for a period of 2 weeks in January 2019. The Claimant stated that before the expiration of his suspension, the Disciplinary Committee summoned him again and after appearing before the Committee on the 24th of January 2019, he was verbally instructed to resume his duties by the Chuks Igboerika. The Claimant averred that he resumed his duties and worked through 25th January 2019 to March 11, 2019. He received half salary for the month of January when he was suspended and his full salary for the month of February, 2019 after he was recalled to resume work. On 11th March 2019, the Claimant stated that he was served with a letter of immediate termination of employment dated 1st March 2019, with no reason stated; and that he would be paid one month’s salary in lieu of notice, contrary to the terms of the employment contract which stipulates three month’s salary in lieu of notice. The Claimant averred that the Defendant did not pay him in lieu of notice; and all attempts made by him to the Defendant as to the reason his employment was terminated proved futile. The Claimant stated that he continued to receive emails from the head office as though his employment was subsisting all through March to April, 2019, but was not paid any salary whatsoever for the said period. On the 5th May 2019, the Claimant averred that the Defendant paid the sum of N1,120,212.46 (One Million, One Hundred and Twenty Thousand, Two Hundred and Twelve Naira, Forty-six Kobo) comprising three months’ salary at the rate of N373,404.15 (Three Hundred and Seventy-three Thousand, Four Hundred and Four Naira, Fifteen Kobo), but did not state any reason for this payment. The Claimant further averred that after the termination of his employment, he applied for employment in several banks including Guaranty Trust Bank, First Bank, Titan Trust Bank, Union Bank, Globus Bank, FinaTrust Microfinance Bank, First City Monument Bank, having worked in the Banking industry for over 11 years. The banks informed him that they would get back to him after contacting his previous employer, but they did not get back to him. He stated that one of the banks informed him in confidence that the Defendant had blacklisted him. The Claimant averred that a blacklisted person cannot be employed by any bank.
The Claimant averred that the Defendant did not comply with the CBN guidelines; and did not terminate his employment on account of fraud. He further averred that the disciplinary committee did not establish that he committed an act of fraud or dishonesty, and that the Defendant did not communicate the decision of its disciplinary committee indicting him for committing fraud. He stated that the disciplinary committee instructed him to resume his employment after being suspended. That an employee indicted for committing fraud is summarily dismissed and not instructed to resume his employment. He further stated that the Defendant did not notify him in writing or orally that it had filed a complaint against him with the CBN for blacklisting.
The Claimant filed this Complaint against the Defendant on March 28, 2022. By and order of Court made on 7th November 2022, the Claimant filed amended originating processes on 10th November 2022 and he is seeking the following reliefs: ‘A Declaration that the termination of the Claimant’s employment by the Defendant as conveyed in the letter of termination dated 1st March, 2019, is wrongful, unlawful, unfair, and, therefore null and void. A Declaration that the termination of the Claimant’s employment by the Defendant is wrongful due to non-contemporaneous payment of salary in lieu of notice by the Defendant. An order directing the Defendant to pay to the Claimant, the sum of N746,808.31, being the salaries and entitlements due the Claimant for the months of March and April, 2019, and, 10% monthly interest thereon from the date of judgment until same is fully liquidated. The sum of N10,000,000.00 as damages against the Defendant for unfair and wrongful dismissal of the Claimant. A Declaration that the Defendant’s blacklisting of the Claimant with the Central Bank of Nigeria (CBN), without giving the Claimant fair hearing as stipulated in the CBN’s Review of Operational Guidelines for Blacklisting dated June 28, 2016, is unfair, wrongful and unlawful. An Order directing the Central Bank of Nigeria to delist the Claimant from its Blacklist/Black book forthwith. The sum of N10,000,000.00 as damages against the Defendant for denial of fair hearing and wrongful blacklisting of the Claimant.’
➥ ISSUE(S) & RESOLUTION(S)
I. Was the termination of Claimant’s employment by Defendant wrongful, unlawful, unfair, and therefore void?
RESOLUTION: IN CLAIMANT’S FAVOUR. (The Claimant’s dismissal was wrongful and unfair).
[THE CLAIMANT WAS EXONERATED ALREADY BY THE BANK
‘The evidence of DW corroborates the Claimant’s evidence. The disciplinary committee orally conveyed its decision to the Claimant on the same day of the hearing through Chuks Igboerika. The uncontroverted evidence is that the decision of the committee was that the Claimant should resume his duties. Now, it is common knowledge, and common sense that a bank staff found liable for dishonesty or fraud will not be asked to resume his duties due to the sensitivity of the banking industry. The only proper conclusion that can be drawn is that the disciplinary committee exonerated the Claimant. This is more so as Chuks Igboerika was not made a witness to refute the Claimant’s evidence. The letter of termination is dated March 1, 2019 and was received by the Claimant on March 11, 2019. There is therefore no contemporaneity regarding the time and dates of the oral decision of the disciplinary committee conveyed to the Claimant in January, and the letter of termination received by him in March. The two decisions are different.’
THE DEFENDANT OUGHT TO GIVE REASON FOR THE TERMINATION OF THE CLAIMANT’S EMPLOYMENT
‘The letter has not given the Claimant a reason for the termination of his employment. The Claimant has complained that this is unfair and unlawful placing reliance on Article 4 of the Termination of Employment Convention No. 158 of 1982 and recommendation 166 of the International Labour Organization (ILO). Learned defence counsel has argued that an international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly; and that on this premise ILO Convention on Termination of Employment No 158 and recommendation 166 is not applicable as it has not been ratified by Nigeria and has no force of law. He submitted that Section 254C of the 1999 Constitution as amended has not empowered this Court to determine whether the Claimant was terminated for a valid reason or not’
‘By these combined provisions the National Industrial Court is empowered to apply International Conventions relating to labour and employment ratified by Nigeria without domestication; apply International Labour Standards (ILS), and International Best Practices in the resolution of labour disputes. The International Labour Organisation (ILO) Conventions, the recommendations of its Committee of Experts, the application of ‘International Labour Standards’ (ILS) which has a range of instruments and decisions of varying degrees that include the conventions, declarations and resolutions of the ILO Conference; customs, protocols, and treaties are point of universal reference in relation to international best practices and its ascertainment. This is the current labour and employment jurisprudence in Nigeria pursuant to the Third Alteration Act, 2010 and particularly Sections 254C (1) (a), (d), (f), (g), (h). The Court of Appeal in Sahara Energy Resources Ltd v Oyebola (unreported) CA/L/1091/2016 judgement delivered 3 December 2020 has held that the the Court has a duty and an obligation to apply international best practices in the resolution of labour and employment disputes having been so empowered by the Constitution.’
‘A reason enables the employee to make decisions concerning his future working life. The cases cited by learned counsel to the Defendant on this issue of stating a reason pre-date the Third Alteration Act 2010. They were all decided before the Third Alteration Act 2010 to the 1999 Constitution, see Nasarawa State Specialist Hospital Management Board v. Mohammed (2018) LPELR (44551) 1 at 20-21 on the imperative of treating or applying older case law authorities that pre-date the Third Alteration Act with extreme circumspection. The Defendant was therefore wrong in failing to state the reason for the termination of the Claimant’s employment and this amounted to an unfair termination; I so hold.’
THREE MONTHS NOTICE WAS NOT GIVEN TO THE CLAIMANT NEITHER WAS THREE MONTHS SALARY IN LIEU
‘The Claimant has complained that the termination of his employment is wrongful because the Defendant did not pay him three months salary in lieu of notice on the day the letter of termination was served on him March 11, 2019. The Claimant’s letter of employment (exhibit C1) provides that either party may give the other three months notice to terminate the employment or payment of three months salary in lieu of notice. This binds both parties, see Ninaj Holdings Limited v. Assets Management Corporation of Nigeria (2015) LPELR-24650 (CA), Sharu v Federal Polytechnic Kaura Namoda & Anor (2016) 67 NLLR (PT.238) 143 at 165, D.A. Alep (Nig) Ltd v Oluwadare  7 NWLR (Pt 1033) 336. The termination letter states one month’s salary in lieu of notice contrary to the contract of employment that stipulates three months. The letter of termination states that the Claimant’s account will be credited by close of business on March 5, 2019. This was not done either on that day or on 11th March 2019 when the Claimant received the letter of termination.’
‘The Defendant ought to have paid the Claimant his three months salary in lieu of notice at the time of termination on March 5, 2019.’
‘The payment made by the Defendant on 5th May 2019 two months after the Claimant’s employment had been terminated cannot be in fulfilment of the Defendant’s obligation under the contract of employment. This is in breach of the employment contract. For this reason, I hold that the termination of the Claimant’s employment on March 5, 2019 is wrongful. The Defendant is ordered to pay to the Claimant, the sum of N3,360,637.35 (Three Million, Three Hundred and Sixty Thousand, Six Hundred and Thirty Seven Naira, Thirty Five Kobo) the equivalent of nine months’ salary as damages for unfair and wrongful termination of employment.’
‘The Claimant has also made a claim for his salaries and entitlement for the months of March and April 2019. The Claimant’s employment was terminated in March. He was not an employee of the Defendant in April. In this regard therefore the Claimant is only entitled to his salary for the month of March 2019 being earned income. The Defendant is ordered to pay the Claimant his salary for the month of March 2019 in the sum of N373,404.15 (Three Hundred and Seventy-three Thousand, Four Hundred and Four Naira, Fifteen Kobo).’
THE CLAIMANT SHOULD ALSO HAVE BEEN HEARD BEFORE BEING BLACKLISTED BY THE CBN
‘The intendment of paragraph 6.0 of the CBN guidelines is that when the civil rights and obligations of the employee and in this instance the Claimant are to be determined, the determination of his civil rights and obligations will necessitate determination of the allegations, either to find him guilty or liable to a fault that will result in blacklisting, see Alhaji Baba v Nigerian Civil Aviation Training Center  5 NWLR (Pt 192) 388,  2 NSCC 145. The Claimant (or any employee) must therefore be given a fair hearing through the instrumentality of a formal disciplinary hearing as provided in paragraph 5.0 and 6.0 of the CBN guidelines before the returns are forwarded to the CBN. This is because his right to employment in the banking and financial industry is about to be taken away by the complaint for blacklisting. This is also the intendment of Section 36 (1) of the 1999 Constitution.’
‘I find that the Defendant failed to follow the due process laid down by the CBN in its guidelines before arriving at its decision to blacklist the Claimant. This is also contrary to the provisions of Section 36 (1) of the 1999 Constitution (as amended). It is unfair and unlawful. I hold that the Defendant denied the Claimant his right to a fair hearing in the determination of his civil rights and obligations.’
‘The Defendant did not refute this at the hearing of the CBN application for an order striking out its name from this suit. The Preamble in the guidelines is purposeful and explicit; to prevent a situation as this. The Defendant ought to have known that its failure to follow the CBN guidelines will result in it bearing full responsibility and liability for the consequences of the blacklisting of the Claimant. I find that the unlawful actions of the Defendant in sending the Claimant’s name to the CBN for blacklisting has resulted in perpetual foreclosure of job prospects for him in the banking and finance industry. The Defendant is hereby ordered to immediately in writing request the Central Bank of Nigeria for a reversal/removal/delisting of the name of the Claimant from its Blackbook Register consequent on this Judgment; and the Claimant is to be duly informed.’
‘The Claimant is entitled to an award of general damages for the unlawful actions of the Defendant. This is pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006. The Claimant is a young man. He had an unblemished career in the Defendant bank for eleven years. Blacklisting carries a stigma that the Claimant will have to live with all his life. It has already resulted in disadvantage to the Claimant in the labour/employment market as his unchallenged evidence is that he has not been able to secure a job in the last three years. This no doubt has affected his career progression.’]
‘For all the reasons given above, I hereby declare and make the following orders:
- I declare that the termination of the Claimant’s employment by the Defendant as conveyed in the letter of termination dated 1st March 2019, is unfair and wrongful.
- I declare that the termination of the Claimant’s employment by the Defendant is wrongful due to non-contemporaneous payment of salary in lieu of notice by the Defendant.
- I declare that the Defendant’s blacklisting of the Claimant with the Central Bank of Nigeria (CBN), without giving the Claimant fair hearing as stipulated in the CBN’s Review of Operational Guidelines for Blacklisting dated June 28, 2016 is unfair, and unlawful.
- The Defendant is ordered to immediately and in writing request the Central Bank of Nigeria (CBN) for a reversal/removal/delisting of the name of the Claimant from its Blackbook Register; and duly inform the Claimant.
- The Defendant is ordered to pay to the Claimant the sum of N3, 360,637.35 (Three Million, Three Hundred and Sixty Thousand, Six Hundred and Thirty Seven Naira, Thirty Five Kobo), the equivalent of nine months’ salary as damages for unfair and wrongful termination of employment.
- The Defendant is ordered to pay the Claimant the sum of N373, 404.15 (Three Hundred and Seventy-three Thousand, Four Hundred and Four Naira, Fifteen Kobo) being salary for the month of March 2019.
- The Defendant is ordered to pay the Claimant the sum of N8, 961,699.60 (Eight Million, Nine Hundred and Sixty one Thousand, Six Hundred and Ninety Nine Naira, Sixty Kobo) the equivalent of two (2) years salary as general damages to the Claimant for denial of fair hearing and unlawful blacklisting.
- Costs in the sum of N750, 000.00 (Seven Hundred and Fifty Thousand Naira) awarded the Claimant.
All sums are to be paid within 30 days. Thereafter, any sum outstanding will attract compound interest at the rate of 10% per annum.
Judgment is entered accordingly.’
➥ FURTHER DICTA:
⦿ THE EMPLOYEE HAS BURDEN TO PLACE TERMS AND CONDITIONS THAT WAS BREACHED BY EMPLOYER
The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provide for his rights and obligations, see Okoebor v Police Council  12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien  6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC  2 NWLR (Pt. 805) 589 at 630. In furtherance of this the Claimant has placed before the Court his offer of employment (exhibit C1), staff handbook (exhibit C2), letter of promotion (exhibit C3), suspension letter (exhibit C7) letter of invitation to disciplinary committee (exhibit C8), letter of termination (exhibit C9), statement of account (exhibit C10), CBN operational guidelines for delisting (exhibit C11), and other service documents. — O.A. Obaseki-Osaghae, J.
⦿ AN EMPLOYEE IS ENTITLED TO KNOW THE REASON FOR HIS DISMISSAL
The ILO Termination of Employment Convention 1982 (No 158) is yet to be ratified by Nigeria. It is however evidence of international labour standards, and international best practice in termination of employment which this Court is obligated to apply; and its recommendations that an employee is entitled to be informed of the reason for the termination of his employment. Section 7 (6) of the National Industrial Court Act 2006 empowers the Court to have due regard to good or international best practices in labour or industrial relations, and what amounts to good or international best practices in labour is a question of fact. Section 254C of the 1999 Constitution (as amended) has empowered this Court to determine whether the Claimant was terminated for a valid reason or for no reason. It is not globally acceptable in industrial relations and practice to terminate the employee’s employment without adducing any reason for doing so, see Petroleum and Natural Gas Senior Staff Association of Nigeria v Schlumberger Anadrill Nig Ltd  11 NLLR (Pt 29) 164, Aloysius v Diamond Bank Plc  58 NLLR 52, Uzo Ejekwumadu v Blue Arrow TSW Ltd (unreported) Suit No: NICN/LA/242/2016 judgement delivered March 18, 2021. It is contrary to international labour standards and international best practices for an employer to terminate the employment of its employee without any reason or justifiable reason that is connected with the performance of the employee’s work. This is also contrary to the International Labour Organisation (ILO) decent work agenda with the four strategic objectives of the promotion of rights at work, employment, social protection, and social dialogue. — O.A. Obaseki-Osaghae, J.
Ejiro Peter Amratefa
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice O.A. Obaseki-Osaghae
⦿ FOR THE CLAIMANT
⦿ FOR THE RESPONDENT
Afam Osigwe SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)