Benjamin Ukelere V. First Bank Of Nig. Plc (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment)

This is an appeal against part of the decision of the High court of Benue state, holden at Makurdi, delivered by Hon. justice E.N. kpojime on 10:1:2003, The appeal is in respect of appellant’s alternative reliefs for special and general damages and on the counter claim. The appellant dissatisfied with the part of the decision complained of filed a notice of appeal with four grounds on 3:4:2003.

By the evidence at the lower court, the appellant employed by the respondent on 20:5:1980 worked at her Makurdi branch until 19:11:1996 when he was served with Exhibit C a letter of retirement. Aggrieved, the appellant filed a suit against the respondent claiming reinstatement, special and general damages against the respondent for unlawful retirement. The appellant’s amended statement of claim dated 18:11:1999 is at pages 26-28 of the record.

The appellant was the sole witness for himself. In the course of oral examination he tendered Exhibit t, a certificate of long-service; Exhibit 2, a booklet titled “Employee Code of Conduct and Ethical standard Guidelines”; Exhibit 3, letter titled “RETIREMENT”. The appellant admitted receiving letter of employment which contains terms of employment. He also admitted knowledge of Collective Agreement between him and the respondent. He stated that after he was served with Exhibit 3, he wrote to the defendant demanding his retirement benefits but he was informed that his gratuity has been used to reduce his indebtedness to the bank while his pension would commence from 31:10:2004 when he would have reached the age of 45years. The appellant testified that the original of his letter of employment was destroyed by fire but that he had the photocopy of same.

In their further amended statement of defence dated 30:5:2001 the defendant at paragraph 11 counter claimed as follows:

(a) “A declaration that the plaintiff was indebted to the Defendant to the tune of N1286, 007.76 and that the Defendant was right and entitled to deduct the plaintiff’s indebtedness from his entitlements to reduce the plaintiff’s outstanding debts to the defendant to N152,77.06 to be paid by the plaintiff to the defendant. The Defendant pleads all relevant documents and records of the loans taken and the positions of the plaintiff’s financial involvements with the Defendant.

(b) The Defendant/counter claimant shall rely on all the facts (averred in defence of the suit) in support of his counter claim”

Mr. Adie Solomon Terngu, a staff of the defendant was the sole witness for the defence. Exhibits D1 – D23 comprising of series of queries issued to the appellant for dereliction of duty, inefficiency, insubordination, indiscipline etc. were tendered through Mr. Terngu (DW1). According to Dw1 the terms of service guiding the plaintiff’s employment with the defendant are contained in the plaintiff’s letter of employment and in the collective agreement between the defendant and its employees and not in Exhibit 2. He enumerated the various loans given to the plaintiff by the defendant and stated further that even after the plaintiff’s gratuity was used to off-set the loans, he is still indebted to the defendant to the tune of N152,577.00 which they are claiming in their counter-claim. He tendered Exhibits F1, F2, F3, G1 and G2 to show the various loans the plaintiff took from the defendant. The Exhibits are as follows:

Exhibit F1 – Application for Car loan N48,000.00.

Exhibit F2 Re: Building loan – N49,000.00.

Exhibit F3 – Application for rent advance – N21,600.00 –

Two years advance rent.

Exhibit G1 – Approval of the car loan

Exhibit G2 – Acknowledgement of receipt of the car loan approval.