Mrs. Victoria Lisk -VS- Fidelity Bank Plc & Or.

IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE P. A. BASSI

DATE: MONDAY 8^th MAY 2018

SUIT NO: NICN/LA/347/2017

BETWEEN:

MRS. VICTORIA LISK ………………………… CLAIMANT

AND

FIDELITY BANK PLC. ……………………. 1^st DEFENDANT
FIDELITY UNION SECURITIES LTD. ..2^nd DEFENDANT

REPRESENTATION

Ademola Abayomi……….For the Claimant

Olumide Aju …………..For the Defendants

JUDGMENT

The claimant commenced this suit by way of a complaint filed on the 24^th of July 2017 together with the accompanying originating processes. The claims as endorsed on the general form of complaint and statement of facts dated the same day are for the following reliefs jointly and severally against the Defendants:

A DECLARATION that the Claimant is entitled to her disengagement benefits, having served the Defendants for 13 years.

A DECLARATION that the refusal of the Defendants in paying disengagement benefits to the Claimant for her Thirteen (13) years of meritorious service is unlawful, arbitrary, discriminatory, unconstitutional and anti-labour practice.

iii. AN ORDER of this Honourable Court for the immediate payment of the sum of N6, 000,000.00 (Six million Naira) to the Claimant being her disengagement benefits within her terms of engagement.

AN ORDER of this Honourable Court for payment of interest at the rate of 20% per annum on any such sum awarded in paragraph 3 above from October 2015 till date of judgment and thereafter at the rate of 10% per annum till final liquidation.

Upon being served with the originating processes of the claimant, the defendant filed a statement of defense dated 27/11/2017. There was no reply to the Statement of Defense and pleadings were deemed closed

At the trial, the claimant testified on her own behalf as Claimant’ s witness (CW) and adopted her Witness Statements on Oath dated 24^th of July 2017. She tendered Exhibits C1 TO C7 into evidence as exhibits without objection and also without prejudice to the right of the defendant to raise any objections as to the admissibility of the said exhibits and/or their evidential value in its final address.

Ms. Patience Ogbonnaya, Team Lead, staff engagement of the 1^st defendant testified on behalf of 1^st defendant. She tendered 2 exhibits into evidence. Ms Ogbonnaya was categorical that she was only testifying for and behalf of the 1^st defendant and not on behalf of the 2^nd defendant.

At the close of evidence, the Court ordered the filing of final written addresses. The final written address of the Defendant was filed on the 27^th of December 2017, while the claimant’s was filed on the 16^th of January 2018. The defendant’s reply on points of law was dated and filed on 13^th of February 2018. On the 14^th of February 2018, parties adopted their respective Final Addresses and the matter was adjourned for judgment.

DEFENDANT’S FINAL ADDRESS

The learned counsel for Defendants formulated 2 issues that in his opinion, arise for determination in this suit. They are:

(1) “Whether the Claimant is vested with the locus standi to commence this suit against the 1^st Defendant for retirement/disengagement benefits, having regards to the absence of privity of contract between the Claimant and the 1^st Defendant?”

(2) “Whether the Claimant has proven her entitlement to the reliefs claimed in this suit, having regards to the pleadings and evidence before this Honourable Court?”

On Issue 1, Mr Aju submitted on behalf of the 1^st & 2^nd Defendants that the Claimant lacks the locus standi to commence this suit against the 1^st Defendant, having regard to the fact that there is no privity of contract between the Claimant, on the one hand, and the 1^st Defendant, on the other. That this was borne out of the Claimant’s letter of employment dated 30 October 2006 and the terms of her employment with the 2^nd Defendant. He submitted that upon a review of the Claimant’s letter of employment dated 30 October 2006 as well as the Contract of employment/conditions of the offer attached thereto- Exhibit C 1 (also tendered by the Defendants as exhibit D 1), it is apparent that it was the 2nd Defendant (not the 1^st Defendant) that employed the Claimant. And accordingly, the parties to that contract of employment i.e. the Claimant and the 2^nd Defendant had expressly reduced the terms of their agreement into writing in exhibit C 1- the letter of employment. He therefore submitted that these terms are subject to the general principles of contract and are binding on these parties exclusively. He relied on the case of the cases of Ezekiel v W.M.D.N.L (2000) 9 NWLR (Pt. 672) and Olaniyan v University of Lag (1985) 2 NWLR (Pt. 9) p. 599.

To The defendant’s counsel, it follows a fortiori that the benefits, rights and responsibilities, which inure or result from the existence of the contract of employment between the Claimant and the 2^nd Defendant can only be attributed to these parties and none other- including the 1^st Defendant. That this is the often cited principle of privity of contract which provides that only parties to a contract may take the benefits or liabilities thereof; only such contractual parties can sue of be sued on the basis of the undertakings represented by the said contract. He relied on the case of Alfotrin Limited (The Owners Of Mv Fotini) v. The Attorney-General Of The Federation & 1 Other (1996) 9 NWLR (Pt.475) 634 and Makwe v Nwukor (carrying on business under the name and style of Prince Uba Industrial Advertising and Publishing Company or Uba Industrial Advertising & Publishing Company Limited) & 1 other (2001) 14 NWLR (Pt.733) 356 at 372,

He therefore submitted that the 1^st Defendant is a total stranger to that contract of employment between the Claimant and the 2^nd Defendant and it cannot sue or be sued on that contract by the Claimant- even if that contract was made for its benefit e.g. the fact that the Claimant was seconded by her employer to work with the 1^st Defendant. To Defendant counsel, the fact that a staff is seconded by her employer to work with another organization or the fact that the other organization pays her salary does not translate to employment by the former. On this point, he relied upon Udegbunam v F.C.D.A (1996) 5 NWLR (Pt. 449) p. 474 at page 486,

He concluded on this point by submitting that the absence of privity of contract between the Claimant and the 1^st Defendant and her lack of locus standi in this case also deprives her of any alleged cause of action in respect of the 1^st Defendant. That this is because, as was aptly stated by the Supreme Court per Ogundare J.S.C. in the case of Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) p. 315 at page 339:

“The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract.”

On the issue of locus standi, Counsel submitted that it is a threshold issue of jurisdiction relying on the case of Bewaji v. Obasanjo (2008) 9 NWLR (Pt. 1093) p. 540). He then submitted that this Honourable Court lacked the jurisdiction to proceed with this matter ab initio, because the Claimant lacks the requisite locus standi to pursue any claim at all against the 1^st Defendant in relation to her contract of employment with the 2^nd Defendant. That the issue of jurisdiction is fundamental and can be raised at any time- even on appeal. Counsel cited the case of Bewaji v. Obasanjo (supra). he then prayed the court to strike out the suit on the authority of Adelekan v C.B.N (2017) 11 NWLR (Pt. 1575) p. 1

On ISSUE 2 Counsel submitted this Honourable Court should dismiss the totality of the Claimant’s case because the Claimant has failed to prove her entitlement to any part of the claim, having regards to the pleadings and the evidence led by the parties in this case.

That First, the claim presented by the Claimant in her complaint dated 24 July 2017 and Particulars of claim of the same date constitute a special damage claim and the law requires that this type of claim must be specifically pleaded and the particulars of each component or head of claim clearly set out. That the Claimant seeks an award of the sum of N6,000,000.00 (Six Million Naira only), a sum said to be her disengagement benefit, as well as interest on the amount. That it is therefore a sum capable of mathematical calculation and falls within the category of special damage claims. He relied upon Layinka v. Makinde (2002) 10 NWLR (Pt. 775) p. 355.

That all other claims by the Claimant are predicated on this primary relief, contained in relief 3 of the Particulars of claim which is as follows:

‘An order of this Honourable Court for the immediate payment of the sum of N6,000,000.00 (Six Million Naira) to the Claimant being her disengagement benefits within her terms of engagement.’

He then submitted that the Claimant has failed/refused to specifically plead the parameters, rates or yardsticks on the basis of which she arrived at the total sum of N6,000,000.00, said to be her disengagement benefits. That in paragraph 14 of her Particulars of claim, the Claimant averred that her monthly salary as at the time of her disengagement was the sum of N102,699.64. Counsel argued that the Defendants were not informed or notified by the Claimant in her pleadings whether this last received monthly salary was applied in the computation of this total sum alleged as disengagement benefits. Furthermore, that the Defendants are also not directed to any document or specific section of the Claimant’s alleged ‘terms of engagement’ (as per her relief 3 above) or exhibit C 1 to ascertain this figure and understand its basis or origin. In sum, that there is nothing in terms of pleadings or particulars to notify the Defendants of the nature of the claim which they must meet at the trial of this suit.

Counsel referred the court to the case of Audu v. Okeke (1998) 3 NWLR (Pt. 542) p. 373 at page 382, Edozie J.C.A restated the law as follows:

‘On the question of special damages, the requirement of the law is that special damages shall be specifically pleaded in a manner clear enough to enable the defendant know the nature of the special damages being claimed against him. This is to enable him to prepare his defence and to challenge the claim if he chooses’

He also relied on the Supreme Court in the case of B.E.O.O. Ind. (Nig) Ltd v. Maduakoh (1975) 12 SC 91 and therefore submitted that due to the Claimant’s failure to specifically plead the facts regarding her claim for disengagement benefits, the entire claims in this suit, particularly the claim for disengagement benefits in the sum of N6,000,000.00 are bad and ought to be dismissed. He submitted further on this that all evidence led in purported proof of the said claim in the sum of N6,000,000.00 are at best evidence given in respect of an unpleaded fact, which goes to no issue and ought to be disregarded by this Honourable Court. and referred the court to the case of Petrojessica Enterprises Ltd v. Leventis Technical Ltd (1992) 5 NWLR (Pt. 244) p. 675 and Nzeribe v. Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 361) p. 124,

Counsel also submitted that it is trite law that the Claimant bears the burden to show her entitlement to the sums claimed in this suit- whether as disengagement benefits or interests. He referred to sections 131 – 134 of the Evidence Act 2011 and the case of Ikwuje v. Alenu (2001) 13 W.R.N 43 at page 50, Onyemelukwe v. W.A.C.C (1995) 4 NWLR (PT. 387) p. 44, Union Bank of Nigeria Plc. v. Mr. N. M. Okpara Chimaeze (2014) LPELR-22699 and Neka B.B.B. Manufacturing Co. Ltd v. ACB Ltd (2004) 2 NWLR (Pt 858) 521 at 540).

Regarding the issue of interest, Counsel submitted that the Claimant in her pleadings did not show how she became entitled, whether by the terms of the contract with the 2^nd Defendant or trade usage, to charge varying rates of default interest on the sum claimed as disengagement benefits. That the rate of interest can either arise from contract, mercantile customs or usage, or under the equitable jurisdiction of the court and a Claimant must show the basis of his entitlement to claim interest under any of the afore-listed heads to have an award made in its favour. He argued that there is no pleading nor evidence before this court to justify the rate or the amount which is claimed by the Claimant as interest in this suit. He relied on the case of Saeby Jernstoberi M.F. A/S v. Olaogun Enterprises Ltd. (1994) 14 NWLR (Pt. 637) Page 128 and Ekwunife v. Wayne (West Africa) Limited [1989] 5 NWLR (Pt. 122) page 422

In summation, Counsel submitted that the Defendants have pleaded uncontradicted facts and led uncontradicted credible evidence in their defence of the claim before the court to show that the Claimant was not entitled to claims in this suit. That the defendants showed that the Claimant was not a staff of the said 1^st Defendant bank and, thus, could not establish any contractual basis regarding the claim for disengagement benefits; and even in the unlikely event where it is found that she could make such claim, that she was not qualified to make such a claim having regard to the provisions of exhibit D 2- (the Personnel Policies and Procedure Guide) because she was not a permanent or core staff of the 1^st Defendant who has been in continuous service of the 1^st Defendant for a period of 15 years prior to 15 December 2016 when the 1^st Defendant’s retirement benefits scheme was terminated. The 1^stDefendant relied on exhibit D 2 in this regard. Furthermore, concerning the 2^nd Defendant, the Defendants also pleaded facts and led evidence that to show that the Claimant did not have any contractual basis for the claim for disengagement benefits; and the Claimant was paid all her entitlements and benefits for the period she was in the employment of the 2^nd Defendant on secondment to the 1^st Defendant- with nothing outstanding.

Counsel then urged this Honourable Court to dismiss the claims by the Claimant with substantial costs.

CLAIMANT’S FINAL ADDRESS

The Claimant formulated the following issues for the consideration of this Honourable Court in the determination of this suit.

Whether the Defendants’ pleading before the Court as relates to the 2^nd Defendant was proved with credible evidence by the testimony of the Defendants’ sole witness.

Whether the Claimant has proved her case to be entitled to her reliefs jointly and severally against the Defendants.

Claimant counsel submitted that the law is fairly well settled that pleading cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiffs is deemed to have accepted and rested his case on the facts adduced by the Plaintiff notwithstanding his general traverse. That therefore, a party who does not give evidence in support of his pleadings is deemed to have accepted the facts adduced by the adversary notwithstanding the general traverse.

He referred to SARAKI V. SOCIETE GENERAL BANK (1995) 1 NWLR (Part 371) 325 at 339 paras F-H and argued that the sole witness of the Defendants did not testify on behalf of the 2^nd Defendant. Also that the Defendants’ pleadings that relates to the 2^nd Defendant did not have any material evidence in support and they are to that extent deemed abandoned.

Counsel further submitted the ipse dixit of the 1^st Defendant’s Witness are admissible against the Defendants. He relied on the case of ACB V. NBISIKE (1995) 8 NWLR (Pt. 416) 725 at 748 when the Court held:

“The word ipse dixit literally means he himself said it. It is a bare assertion resting on the authority of an individual. There can be no question that a mere “ipse dixit is admissible evidence, but it is evidence resting on the assertion of the one who made it. Although, depending on the circumstances, a fact can be established by a mere ipse dixit of a party, where there is need for further prof a mere ipse dixit may not be enough”

Claimant counsel also cited the case of Ogunyade V. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218 and 246, the Supreme Court stated the position of the law as follows:

“The law presumes, and correctly for that matter, that a person who comes into a litigation should have a case to state, a case that will give him judgment. The case is made at the stage of the pleadings, be he a plaintiff or a defendant. While a plaintiff states his case in the statement of claim, a defendant states his case by a way of defence in a statement of defence. If, at the hearing, the defendant decides not to give evidence to vindicate the statement of defence, the court is entitled to hold that the evidence of the plaintiff is unchallenged. Although at the stage of pleadings, the parties have joined issues, this was not the position at the hearing of the case. It is merely saying the obvious that pleadings do not have brain and the mouth to talk and so they need the human being with the automation of the brain, mind and mouth to express the contents of the pleadings in open court. Where the human being…fails to talk for the statement of defence that seems to be the end of the road for the defendant.”

Counsel also invited the court to find and hold in the interest of fairness and justice, that even though the law allows freedom of contract between consenting parties, the 1^st and 2^nd Defendants’ practice of making the 2^nd Defendant recruit staff and immediately second/transfer them to the 1^st Defendant is unfair and amounts to a sharp and anti-labour practice. That it is a scheme calculated to rigmarole and dribbles the employees out of their entitlements since there is no parity of bargaining powers.

To the claimant’s counsel, the doctrine of privity of contract is not in absolute terms as it admits of exceptions that permit a beneficiary of a contract to sue and be sued on it having received benefit from the contract. That this is position in the instant case.

On the issue of the staff handbook of the defendant, Counsel referred to the case of SMART VS. STATE NWLR (PT. 826) 548 SC where the Supreme Court restated that where a party deliberately withheld a document relevant to proceedings the content of that document would be resolved against that party. Counsel argued that the policy of the 2^nd Defendant of not making staff hand book available to all employees and thereby prevent them from ascertaining their entitlement benefits upon disengagement is anti-labour practice and the content of the staff hand book should resolved against the 2^nd Defendant.

He then urged and invited to reject the Defendants’ submission on locus standi and privity of contract as baseless and inapplicable, and to resolve this issue 1 in favour of the Claimant in the interest of justice.

On issue 2, Counsel submitted that the Claimant’s claim is a joint and several claim against both Defendants and the reliefs are as captured in the introduction, paragraph 1.01 of this address. That a joint and several claim is a claim against more than one Defendant and once the Claimant’s claim succeeds it is valid, subsists and enforceable against all or any of the Defendants.

To the claimant’s counsel, the following facts were uncontradicted.

i)That the Claimant was a legacy staff of the 1^st Defendant;
ii)That the Claimant was employed by the 2^nd Defendant in October 2006 and immediately seconded to the 1^st Defendant;

iii) That throughout the entire period of her employment, the claimant worked for the 1^st Defendant, reported to the 1^st Defendant for work, her account was maintained with the 1^st Defendant, and her salary was paid by the 1^st Defendant.

iv)That the 2^nd Defendant recruited only for the purpose of secondment to the 1^st
v)That the 2^nd Defendant is a subsidiary of the 1^st Defendant
vi)That the Claimant worked with Fidelity Bank/ 1^st Defendant as a legacy staff and later with the 1^st Defendant on secondment from the 2^nd Defendant for a period of 4 years and 9 years respectively making a cumulative period of 13 years.

vii) That the Claimant was only paid one month salary by the 1^st Defendant for the last month worked.

viii) That it was not stated in the Claimant’s letter of employment (Exhibit C1 & D1) that she was a contract staff.

ix)That the 1^st & 2^nd Defendants have denied liability for the Claimant’s end of service/disengagement benefit.
x)The condition for payment of staff benefits contained in paragraph 9(1)-(c) of the Defendants witness Statement on Oath as well as Exhibit D2 were not communicated to the Claimant before she resigned in November 2015.
xi)The Defendants contrary to standard and acceptable labour practice, did not make copies of the 1^st and 2^nd Defendants Staff Handbook to the staff, and did not make reference to same in their letter of offer of employment.

He therefore urged the court to find and hold as follows:

i)To condemn the practice where the 1^st Defendant refer to some staff as core staff and some as contract staff as same is discriminatory and unconstitutional.

ii)To condemn the practice where a recruitment agency will recruit for the 1^st Defendant with a view to rigmarole and dribble staff of the 1^st Defendant out of their entitlement benefits.

iii) To condemn the requirement that staff of 1^st Defendant will only be entitled for Benefits upon a condition of working for 15 unbroken years, while the benefits of other staff like the Claimant who worked for 13 years will not be prorated for the purpose of getting disengagement/end of service benefit.

iv) To condemn the practice of not incorporating the Defendants handbook in the Letter of offer of employment and not making same available to them in other to prevent same from being part of the terms of employment.

It is respectfully submitted on behalf of the Claimant that the Defendants practices enumerated above offends against extant labour laws, are unfair and also unconstitutional, and this Honourable Court is invited to condemn such in the strongest terms possible.

Counsel also prayed the court to do substantial justice and avoid technicalities and relied upon the case of IKECHUKWU V. NWOYE (2014) ALL FWLR (PART 724) 101 and Okoya v. Nwanko (2014) ALLFWLR (Part 756) 471

Finally, on the basis of the totality of the Claimant’s case, Counsel prayed the court to allow the Claimant’s claim.

DEFENDANTS’ REPLY ON POINTS OF LAW

the 1st and 2nd Defendants in response to new issues of law which in the opinion of counsel arose in the Claimant’s Final Written Address dated 15 January 2018 submitted that these issues of law are:

That the principle in the cases of Saraki v. Societe General Bank (1995) 1 NWLR (Pt. 371) p. 325 at page 339 paras. F-H, Ogunyade v Oshunkeye (2007) 15 NWLR (Pt. 1057) p. 218 at p. 246, Ofomaja v. Commissioner for Education (1995) 8 NWLR (Pt. 411) p. 69 and Attanonu v. Chukwumezie (2016) All FWLR (Pt. 829) p. 1087 at 1032 applies to the pleadings submitted on behalf of the 2nd Defendant because they were not supported by evidence; and therefore the said pleadings are: (i) deemed abandoned and (ii) the 2nd Defendant has accepted the facts adduced by the Claimant (paragraphs 4.02 – 4.07, 4.13 – 4.17 of the Claimant’s Final Written Address dated 15 January 2018). Counsel submitted that the principles enunciated in the cases referred to above by counsel are inapplicable to the facts of this case and that the submissions by the Claimant in this regard are misconceived. Furthermore, that that the entire contention by the Claimant’s counsel alleging that there is no evidence in support of the 2^nd Defendant’s pleadings are based exclusively on counsel’s trial notes i.e. his own records of the proceeding of 5 December 2017, the contents of which have been reproduced in the Claimant’s final written address at paragraph 4.05 to the effect that the Defendants’ witness denied testifying on behalf of the 2^nd Defendant. Mr Aju for the defendants submitted that the only relevant, true and binding record of proceedings which legitimately represents all that transpired in this suit on 5 December 2017, are the records of proceedings of this Honourable Court- not the trial notes of counsel. He referred to the case of Oguntayo v. Adelaja & Ors (2009) 15 (Pt. 1163) p. 150 SC and Sommer v. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548,

Counsel submitted that from the records of this Honourable Court, that the Defendants’ witness- Ms. Ogbonnaya never said ‘I am not standing for the 2^nd Defendant’ (as alleged by counsel at paragraph 4.05 of the Claimant’s final address) and that her statement that she had no relationship with the 2^nd Defendant was based on the fact that she was an employee of the 1^st Defendant, not the 2^nd Defendant.

Therefore, to the claimant counsel, it is apparent that the 1^st and 2^nd Defendants’ witness (Ms. Ogbonnaya) did not deny giving evidence for the 2^nd Defendant as alleged by counsel. That given that the entire arguments of the Claimant’s counsel on the legal effects of abandonment of pleadings for failure to lead evidence as well as the deemed acceptance of facts pleaded by the adverse party, placing reliance on the principles in the cases of Saraki v. Societe General Bank (1995) 1 NWLR (Pt. 371) p. 325 at page 339 paras. F-H, Ogunyade v Oshunkeye (2007) 15 NWLR (Pt. 1057) p. 218 at p. 246, Ofomaja v. Commissioner for Education (1995) 8 NWLR (Pt. 411) p. 69 and Attanonu v. Chukwumezie (2016) All FWLR (Pt. 829) p. 1087 at 1032, are predicated on this unfounded allegation that the 1^st and 2^nd Defendants’ witness said ‘I am not standing for the 2^nd Defendant’ (which from the records is not true), Mr Aju urged this Court to reject all the arguments by the Claimant and find that the above cases have been cited out of context because the records of the court do not support such allegation.

That Claimant counsel is not permitted under the law to lead any other evidence of the records of this Honourable Court and neither is he at liberty to contradict, alter, add to or vary the records of this Honourable Court by his written address. He relied on Section 128 of the Evidence Act 2011 and the case of Agagaraga v FRN (2007) 2 NWLR (Pt. 1019) p. 586 at page 599,

In addition to the foregoing, Defendant counsel submitted that the Claimant’s counsel cannot supply evidence through his final address. That Addresses of counsel are mainly to assist the Court, not to add or amend its records. He cited the case of Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) p. 787,

Finally on this point, Counsel urged the court to disregard the entire submissions by the Claimant on the above issues and enter judgment in favour of the 1^st and 2^nd Defendants in this suit.

On the Second legal point which is that the process of secondment of some of the 2^nd Defendant’s staff to the 1^st Defendant is ‘unfair and amounts to sharp and anti labour practise.’, Claimant counsel submits that this new submission suggests breaches of extant labour laws and fraud i.e. ‘sharp and anti-labour practice’ by the Defendants but that no pleading or particulars or evidence exist to found or substantiate these allegations and he urge the court to discountenance these submissions as baseless in law and as speculative. He relied on the case of ONAFOWOKAN vs. IDOWU & BROS. & ANOR (1969) 1 NWLR 77.

In conclusion, the Defendants prayed this Honourable Court to strike out/dismiss the Plaintiff’s suit and enter judgment in favour of the Defendants.

COURTS DECISION

I have read all the submissions of counsel and the processes filed in this matter. I have evaluated the oral and documentary evidence as presented by both sides. In determining the rights of the parties in this suit, the court would adopt the issues for determination as formulated by the 1^st defendant.

As a preliminary point, the Claimant on the 14/2/18, raised the issue of the Defendant’s final address being filed out of time and hence it should be disregarded by the court. Mr. Aju for the defendant had replied that the Rules of this court must be read subject to the interpretation Act. That where an act is required to be done falls on a public holiday, it should be done on the next working day following the weekend or the public holiday. He further argued that the 25^th and 27^th of December 2017 were public holidays and the defendant had filed its Final Address on the day following the public holiday and was so within time.

In resolving this preliminary point, this court takes judicial notice of the 2017 Christmas holidays that fell on the 25^th and 26^th of December 2017 and those dates were declared public holidays by the Federal Government of Nigeria. The defendant should hav

The first issue raised is ”Whether the Claimant is vested with the locus standi to commence this suit against the 1^st Defendant for retirement/ disengagement benefits, having regards to the absence of privity of contract between the Claimant and the 1^st Defendant?”

The Claimant had contended that she was a legacy staff of the 1^st defendant but that she was employed by 2^nd Defendant in October 2006 and immediately seconded to the 1^st defendant had worked for a total of 13 years for the 1^st defendant. That her salaries were paid by the 1^st Defendant. She further contended that the 2^nd Defendant is a subsidiary of the 1^st Defendant and that the condition for payment of staff benefits contained in paragraph 9(1) -(c) of the Defendants witness Statement on Oath as well as Exhibit D2 were not communicated to the Claimant before she resigned in November 2015.

The 1^st defendant on its own part argued that the 1^st and 2^nd defendants were separate legal entities and that it was the 2^nd defendant who employed the Claimant vide Exhibit C1 which is the same as Exhibit D1. And that the terms of her employment with the 2^nd defendant were clearly spelt out in the said exhibit D1. Defendant contends that further that there is no privity of contract between the Claimant and the 1^st defendant and consequently the Claimant lacks the locus standi to sue the 1^st defendant who is a stranger to the contract of employment even if the contract was made for its benefit. That the fact that it paid salaries to the claimant did not create a contract of employment between the parties.

The 1^st Defendant in paragraphs 6 and 7 of the sworn statement of its witness Ms Patience Ogbonna stated that the 1^st defendant was unaware of the claimant’s employment in 2002 with FSB Ltd or any of the Legacy Banks banks acquired by the 1^st defendant. That the employees of the Legacy Banks acquired by the 1^st defendant were specifically re-issued with employment/acceptance letters into the 1^st defendant’s employment. Particularly in paragraph 9 of the statement on Oath of DW, the 1^st defendant claims that the claimant was never a member of its staff but rather a member of staff of the 2^nd defendant and consequently, it was not obliged to pay the claimant any retirement benefits at all. Accordingly, the 1^st defendant prayed the court to strike out the claims against it.

Now, the question to ask would be what evidence has the claimant adduced in support of its contentions that she was a legacy staff of the 1^st defendant? Or that the 2^nd defendant is a subsidiary of the 1^st defendant. What evidence has been presented before this court to show the fact that the terms and conditions of any relationship between the claimant and the 1^st defendant? I have carefully gone through all the processes filed in this matter and could not find evidence in support of the above contentions of the claimant. That is not to say I don’t believe the claimant that she could have been employed by one of the legacy banks that made up the 1^st defendant or that the 2^nd defendant is a subsidiary of the 1^st defendant. But WHERE IS THE EVIDENCE? It is the law that once a party asserts, he/she must prove the assertion. See Section 131 (1) &( 2) of the Evidence Act 2011 and the cases of Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348. The need for proof by evidence is however dispensed with where there is an unequivocal admission of material facts. Perhaps, I may as well add that once cogent evidence is led by he who asserts, the burden of proof is shifted to the one against whom claims are being made.

In the instant case, the 1^st defendant has denied being the employer of the claimant. The duty and burden is on the claimant therefore to show by cogent and compelling evidence that the first defendant indeed was her employer.. It is the party that would fail if no evidence is adduced that must adduce the convincing evidence of that fact that needs proving. In the case of MADAM SARAH OSCAR & ANOR VS MALLAM MANSUR ALIYU ISAH (2014) LPELR 23620 (CA) the Court of Appeal held that “it is elementary that in civil cases, the person that asserts bears the burden of proving that which he asserts”. See also AMECHI VS INEC (2008) ALL FWLR (PT 407) 1, DAODU VS NNPC (1998) 2 NWLR (PT 538) 355, FASHANU VS ADEKOYA (1974) 6 SC 83.

Claimant has placed reliance on Exhibit C1 (also D1). Exhibit C1 I is titled LETTER OF EMPLOYMENT AND was signed by a GODWIN UMEH for Fidelity Union Securities Ltd. Exhibit C1 clearly spelt out in paragraph 2 that “You would be employed as Teller 2 on secondment to Fidelity bank PLC”. Attached to the letter of offer is a CONTRACT OF EMPLOYMENT/CONDITIONS OF THE OFFER. In the said Contract of Employment/Conditions of the Offer, the column for employer reads “FIDELITY UNION SECURITIES LTD”. The column for employee read “LISK, MAURA O.S. This contract of employment had an acceptance portion which was signed by MAURA O.S. LISK. Under cross examination Mr Aju for the Defendants, the claimant stated “Exhibit C1 was issued to me by the 2^nd defendant.”

So what evidence has been adduced to show privity of contract between the claimant and the 1^st defendant? On the record, I find none. I refer to MOBIL OIL NIGERIA LIMITED & ANOR V. NATIONAL OIL & CHEMICAL MARKETING COMPANY LIMITED & ANOR 2000) 9 NWLR (Pt. 671); Per ADEREMI, J.C.A.

It is an axiomatic principle of the law that a contract, as a general rule does not confer rights or obligations on persons who are not parties to it” (P. 15, paras. E-F). And also THOMAS CHUKWUMA MAKWE V. CHIEF OBANUA NWUKOR & ANOR Makwe v. Nwukor (2001) 14 NWLR (Pt.733) 356 per Iguh JSC that;

“It is trite law that as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and, generally, a stranger to a contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See Malone v. Laskey (1907) 2 K.B. 141 C.A., Cameron v. Young (1908) A.C. 176 H.L., Beswick v. Beswick (1967) 2 All E.R. 1197, Frederick Oboye Negbenebor v. Eudora Omowunmi Negbenebor (1971) 1 All N.L.R. 210. See too Ikpeazu v. African Continental Bank Ltd. (1965) 1 N.M.L.R. 374 at 379 where this court per Ademola, C.J.N., put the matter as follows:- “What advantages, if any, can the bank gain from the deed, Exhibit D? Can the bank sue on it as a guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it” See too Tweddle v. Atkinson 30 L.J.Q.B. 265 and the decision of the House of Lords in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd (1915) A.C. 847.” (Pp. 16-17, paras. E-F)”

Accordingly, in the absence of any privity of contract shown between the claimant and the 1^st defendant, I find that the claims against the 1^st defendant are incompetent and are hereby struck out.

Coming to the claims as they are against the 2^nd defendant, the claimant had a duty to establish a right to these reliefs. He who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both the case law and the statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA). Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. However, even if a Defendant does not enter an appearance or does not call witnesses and/or lead evidence at trial does not confer on the Claimant an automatic entitlement to Judgment. The law remains the same that he who asserts has the burden of proving the assertion.

Here the said contract of employment of 30^th October 2009 is the bedrock and the foundation of the relationship between the 2^nd defendant and the Claimant in the employment relationship. See Adams v. LSDPC (2000)5 NWLR (Pt. 656) 291. The terms and conditions of the employment are before the Court as Exhibit C1 to enable the Court determine the rights of the parties thereunder. The law is trite that parties to a contract are bound by the express terms and conditions as clearly stated in voluntarily entered agreement unless there is established evidence that a party was led into an agreement fraudulently or deceitfully. See Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC); (2013) 5 NWLR (Pt. 1346) 144. In event of disputes and controversies, the duty of the Court is to give meaning to the terms and conditions of such agreement. It is not the duty of the Court to make agreement for the parties. See Prince Oil Limited v. GT Bank Plc (2016) LPELR(CA) &Union Bank Plc v. Innoson (Nig.) Limited (2017) LPELR (CA). It is also trite that the content of written document or agreement can only be varied by another written document rather than a parole evidence. See Nekpenekpen v. Egbemhonkhaye (2014) LPELR-22335(CA).

Now there is before this court exhibit C1 which is the Letter of employment of the claimant with the 2^nd defendant. Also attached to that exhibit are the Conditions and terms of employment as well as the financial terms of the contract i.e. the emoluments and entitlement of the Claimant under the contract. These documents are completely silent as to the issue of gratuity and when and if a member of staff becomes qualified. It follows therefore that the quantum of the gratuity was not provided for under exhibit C1. What the claimant should have adduced evidence of is the Handbook of the 2^nd defendant where one exists. Now the court cannot speculate as to the existence or the contents of a handbook for the 2^nd defendant or indeed if disengagement benefits is provided for its staff. Reference here to CHIEF IFEDAYO IWAYEMI & ANOR V. SNR. AP. AKINYOOYE AKINBO 2016) LPELR-40136(CA) Per OWOADE, J.C.A;

“The reason for this is that law is not a game of wizardry. It is not and has never been the function of a Court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence to work out the mathematics of arriving at an answer in a case which only evidence tested under cross examination can supply.See: Okoya & 2 Ors. V. Santilli & 2 Ors. (1993 – 1994) ALL NLR 404, Agip (Nigeria) Ltd. & 8 Ors. V. Chief C. Ezendu & 9 Ors. (2010) 1 SC (Pt.11) 98, Olalomi Industries Ltd. V. Nigerian Industrial Development Bank Ltd. (2009) 7 SC 94, Rapheal Eiezie & Anr. V. Christopher Anuwu & 3 Ors. (2008) 4 SCNJ 113, Yakeen Alabi Odonigi V. Aileru Oyeleke (2001) 4 SCM 127, Kraus Thomson Organization Limited V. University of Calabar (2004) 4 SCM 83 and Messrs MISR (Nig.) Ltd. V. Mallam Yesufu Ibrahim (1974) 5 SC 47.?Moreover, “a trial is not an investigation and investigation is not the function of a Court————-“??See: Duruminiya V. Commissioner of Police (1962) N.N.L.R. 70 at 73 – 74.”. (Pp. 22-23, Paras. B-A)

See also FIRST BANK (NIG) PLC V. CHIEF CHARLES ORAKWUE AZIFUAKU (2016) LPELR-40173(CA) Per BOLAJI-YUSUFF, J.C.A.

“The Court does not act on speculations. The Court is entitled to act only on cogent, credible and legally admissible evidence.” (P. 21, Paras. D-E)

The specific Order sought in this suit is;

“AN ORDER of this Honourable Court for the immediate payment of the sum of N6, 000,000.00 (Six million Naira) to the Claimant being her disengagement benefits within her terms of engagement”

However, the claimant had failed to adduce evidence as to the right conferring entitlement of the N6 million on her. What documents shows the entitlement? Exhibit C1 (D1) did not provide an idea of how this entitlement and figure came about. Cases are won on evidence and not sentiments or emotions. The failure of the claimant to show entitlement has tied the hands of this court. I must find that the head of claim fails and it is hereby dismissed.

The declaratory orders sought by the claimant here are tied to the claims dismissed earlier. The claimant has failed to adduce evidence of spending 13 years with either defendant and that even if so, she has failed to adduce cogent evidence that the defendants were bound to pay her the specified sum of N6 million or any other sum on the basis of the number of years spent with the defendants.

The evidence before this court show the claimant was employed in 2009 and left the services of the defendant in 2017. That is a total of 8 years. Assuming for the sake of argument here that the claimant was indeed an employee of the 1^st defendant (which she wasn’t), the staff handbook made employees eligible for gratuity after serving for 15 unbroken years. Not 8 years that she worked for the 2^nd defendant.

Nothing was placed before this court to show the claimant’s alleged employment with FSB Ltd or any other Legacy Bank that made up the 1^st defendant and if the claimant was absorbed by the 1^st defendant. How then can this court declare that the claimant was entitled to the disengagement benefits and the refusal to pay same was unlawful. I decline to make any such pronouncements in the absence of cogent evidence of entitlement and the declarations are hereby refused.

The claim for interest is also refused for the reasons given above.

For the sake of clarity, all the claims hereby fail and are dismissed.

Judgment is entered accordingly.

I make no order as to costs.

Hon. Justice Paul Ahmed Bassi

Judge