Onyebezie Ruth -VS- Ecobank Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATED: 7^THOCTOBER, 2019 SUIT NO.: NICN/BEN/22/2017

BETWEEN

ONYEBEZIE RUTH ………… CLAIMANT

AND

ECOBANK NIGERIA LIMITED ………… DEFENDANT

REPRESENTATION:

P.Y. MUSA APPEARS FOR THE CLAIMANT

ABAYOMI IDOWU APPEARS FOR THE DEFENDANT

JUDGMENT

The claimant by a Complaint before this court on the 27^th October, 2017 claims against the Defendant as follows:

The sum of N2,533,711.92 (Two Million, Five Hundred And Thirty Three Thousand, Seven Hundred And Eleven Naira, Ninety Two Kobo) being the terminal benefits due and payable to the Claimant by the Defendant upon determination of the Claimant�s appointment with the Defendant on 7^th June, 2017.

PARTICULARS OF CLAIMANT�S CLAIM

1. One month salary in lieu of notice – N101,478.84

2. Gratuity – N1,014,788.40

3. Severance – N1,350,000.00

4. 13^th Month – N67,444.68

Total – N2,533,711.92

Further to the above, the Claimant claims interest on the above sum of N2,533,711.92 (Two Million, Five Hundred And Thirty Three Thousand, Seven Hundred And Eleven Naira, Ninety Two Kobo) at the rate of 21% per annum from the 8^th of June, 2017 till date of judgment in this suit and thereafter at 20% per annum until the entire debt is paid.

The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon.

The claimant�s case is that she was employment as a Teller/Cashier, Band F in the defendant bank vide a letter of appointment dated on 13^th July, 2007 and later confirmed as a staff of the defendant.The claimant was in the employment of the defendant until the 7^th of June, 2017 when the defendant suddenly determined her appointment without any notice.

The Claimant averred that her appointment was subject to the terms and conditions of service set out in the defendant�s handbook/manual titled � ENG Customized Group HR Policies & Procedures, April 2016. In line with the letter of termination appointment, the claimantsubmitted herself for exit clearance and completed the same with the defendant.On the 9^th June, 2017 the defendant wrote to inform herof her total terminal benefits of N67,418.09 (Sixty Seven Thousand, Four Hundred and Eighteen Naira, Nine Kobo). The claimant protestedto the defendant without any response. The claimant pleaded that the action of the defendant in denying her entitlements is wrong and in breach of the extant conditions of service between the parties and the Bank�s usual practise. The claimant in addition pleaded that the action of the defendant amounts to discrimination in breach of Articles 15 and 28 of the African Charter on Human and People�s Rights Cap. A9, Laws of the Federation of Nigeria, 2004.

WHEREOF, she claims against the defendant as aforestated.

On the 3^rd day of January, 2018, the defendant filed a Memorandum of Conditional Appearance, Statement of Defence and other accompanying processes.

The defendant later amended the statement of defenceby order of court, which was filed on 8^th November, 2018. The defendant denied paragraphs 1, 3, 4, 5, 8, 9, 10, 11, 12, 16, 17, 18, 19 and 20 of the statement of facts, and admitted that the claimant was in their employment, whose appointment was determinedin line with the contract of employment between the parties. The defendant contended that the claimant is not entitled/qualified for gratuity as she did not work with the defendant for the prescribed 10 years prior to the termination of her employment.

The defendant further averred that the Claimant�s employment was terminated specifically for violating the conditions of her employment with the defendant, in that the funds in her account is not commensurate with her earnings as a staffof the defendant and there was no information or disclosure, as required of all staffor otherwise that the claimant had other sources of income while in the defendant�s employment.

The Defendant finally averred that the claimant acted in violation of paragraph ix of her terms of service dated 13^th July, 2007 as well as Article 6.4 of the Ecobank Human Resources Policies and Procedure of December 2016,consequent upon which her appointment was determinedon the ground thather service was no longer required and all her due benefits were paid.

The defendant therefore urged the court to dismiss the claimant�s claim in its entiretyas same is frivolous, vexatious and gold-digging.

COUNTER CLAIM

The defendant counter-claimed against the claimant on the ground that this suit is actuated by malice as the claims are deliberately misrepresented, untrue and meant to embarrass and humiliate the defendant and present it as an irresponsible organization. The Counter-claimant averred that it had been subjected to ridicule, embarrassment and undue legal cost and expenses by reason of this suit. Whereof the defendant counter claimed as follows;

Particulars of Damages

i. Solicitors professional fees. – N750,000.00

ii. Damages for maliciously instituting this suit. – N3,000,000.00

totaling the sum of N3,750,000.00(Three Million, Seven Hundred and Fifty Thousand Naira Only), as special and general damages for malicious prosecution against the Claimant.

The claimant responded thereafter by way of an Amended Reply to the above process of the defendant, filed 26^th November, 2018, wherein she denied paragraphs 5 � 24 of the statement of defence andparagraphs 1, 2, 3, 4, 6 and 7 of the counter-claim and stated that the facts averred therein are incorrect and misleading. The claimant denied using her salary account for any irregular financial transaction other than receipt of her salary, and stated that her husband was the one sending money into her savings account, for disbursement to various contractors working on his Event Hall project and upkeep of the family.

She further averred that her ordeal with the defendant started when she reported a case of sexual harassment against one Peter Imhoedemhe, the branch auditor which was never investigated and that this amountedto discrimination in breach of Articles 15 and 28 of the African Charter on Human and Peoples� Rights Cap. A9, Laws of the Federation of Nigeria, 2004.

The Claimanturged the court to dismiss the counter-claim of the defendant with substantial costs.

The trial in this case commenced on 15^th May, 2018. The Claimant called two witnesses �Airunukhoen Friday Ikpehia and Mr. Eboigbe Ighodale as CW1 and CW3 respectively while the claimant testified as CW2. They all adopted their sworn statements on oath and tendered several documents which were admitted in evidence and marked Exhibits F1 � F15(i-xxiii) they were duly cross examined.

The defendant on the other hand opened its defence on the 11^th April, 2019 by calling one Dehinbo Francis � Human Resources Manager of the defendant as DW1. He adopted his witness statements on oath and tendered several Exhibits which were also marked as Exhibits CK1 � CK6. DW1 was duly cross-examinedand the defence thereafter closed its case. The parties adopted their final written addresses on the 10^th of July, 2019 and the case was thereafter adjourned for judgment.

The Defendant�s Final Written Address dated 11^th June, 2019 was adopted by Oluyemisi Abimbola, Esq on 10^th July, 2019, in which the defendant formulated three issues for determination to wit:

Whether the claimant�s evidence before the court establishes any liability or breach of contract on the part of the defendant to warrant the granting of the reliefs sought against the defendant?

Whether by the claimant�s pleadings and evidence before the court, the defendant is liable to pay the sum claimed?

Whether the defendant is entitled to the reliefs sought in its Counter Claim?

On the first and second issue, counsel submitted that in a written or documented contract of service, it is the duty of the court to confine itself to the clear and unequivocal terms of the contract of service between the parties. The court is therefore enjoined not to look outside the terms of contract stipulated in deciding the rights and obligations of the parties. He referred the court to OSUMAH v. EDO BROADCASTING SERVICE & ANOR (2004) 17 NWLR part 902 p.332 at 351 paragraph B-E amongst others.

Learned counsel further submitted that it is an elementary principle of law governing private employment contract, i.e. an employment withoutstatutory flavor, that an employer is not under any form of obligation to issue a query nor reason for termination of an employment. He contended that in a pure case of master and servant, a servant�s appointment can lawfully be terminated without any explanation.

Learned defence counsel argued that there is no oral or documentary evidence before the court to ascertain that the defendant breached the condition of service between the parties, thus there is nothing disclosing that the claimant is entitled to the reliefs sought. In his submission,he maintained that it is trite law that trial courts decide on evidence led and placed before it, and referred the court to the Supreme Court�s decision in STATE VS. AIBANGBEE (1988) 3 NWLR (Pt. 84) 584 pp. 577 para B � C, arguing that an employee who complains that her employment has been wrongfully terminated, has the onus to place before the court the terms and conditions of the contract of employment; and prove in what manner the said terms were breached by the employer, citingOSIYEMI VS. SOCIETE GENERALE BANK LTD (2001) 11 NWLR (PART 725) AT PAGE 563.The defence counsel referred the court to Exhibit F3 which is the claimant�s appointment letter and argued that the said letter clearly defined how the claimant�s employment with the defendant can be determined, on this he cited Abalogu V. S.P.D.C. (2003) 13 NWLR pt 837 pg 308 pp 333 paras B-G, and referred the court to clause IV of Exhibit F3, wherein it was stated thatthe appointment can be terminated by either party with one month written notice or payment of one month�s salary in lieu of notice.

He pointed out that the evidence is uncontroverted that the claimant was paid one month�s salary in lieu of notice by the defendantin compliance with the Terms and Conditions of employment between the parties. In response to the claimant�s contention that her entitlement is N101,478.84 for one month salary in lieu of notice and N67,444.68 as her 13^th month salary, he posited that what is in contention is that the alleged sum paid was not up to the amount the claimant is �purportedly� entitled to. The defencecounsel argued that he who asserts a fact must prove same. He maintained that claimant has failed to discharge this burden and cited the cases of Ademola v. Seven Up Bottle Co. Plc (2004) 8 NWLR pt 874 pg 134 pp 147-48, paras C � C, MOGAJI V. Odofin (1978) 4 SC9.

On the claim for gratuity and severance, counsel referred the court to Exhibits CK1 � CK13 and contendedthat the claimant was not entitled to the payment of any sum as gratuity having spent less than ten years in the employment of the defendant as evidently required by the Bank�s Policy.Learned counsel submitted further that the claimant failed woefully to substantiate the purported claim for the sum of N1,350,000.00 as the severance package as the claimant faced a disciplinary panel who recommended the termination of her employment

On the claim for an interest of 21% per annum as the pre/post judgment sum of N2,533,711.92 from the 8^th of June, 2017 till the date of judgment and thereafter at 20% per annum until the entire debt is paid. He argued that except where parties have expressly agreed on payment of interest, it is not the law to award interest pre-dating the date of judgment.

On issue three, which is the counter-claim of the defendant, the defence counsel posited that the Defendant/Counter-Claimant has placed sufficient facts before this court to entitle it to the counter-claim. He submitted that had the claimant not misrepresented some of the facts raised by the counter-claimant to the court, the expended legal cost would have been avoided and that the said cost is a direct pecuniary loss and liability arising from the claimant�s frivolous case, more over the counter claim was not controverted in any way, he therefore urged the court to grant the reliefs as claimed.

The defendant�s counsel finally urged the court to dismiss this suit in its entirety for being frivolous and gold digging with substantial cost and award damages against the claimant in favour of the defendant with respect to its counter-claim.

The final written address of the claimant was filed on the 20^th of June, 2019 and adopted by P. Y. Musa Esq. wherein he formulated a lone issue for determination to wit:

�Whether the Claimant has proved her case on the preponderance of evidence as required by law and therefore entitled to reliefs contained in her statement of facts�.

Learned counsel to the claimant submitted by way of preliminaries, that Exhibit CK3 (1 – 196),ExhibitCK4 and Exhibit CK5 are inadmissible and liable to be discountenanced as these documents are photocopies and no proper foundation was laid for tendering them in line with the clear provisions of section 89(b) of the Evidence Act, 2011. Hecited Tamkeyar v Bussa & Ors (2017) LPELR � 42987 (CA) Pp 16-18 pages C-F, andargued that it is a settled principle of law that the court reserves the right to expunge or discountenance any document that was wrongly admitted during trial at the judgment stage.He consequentlyurged the Court to discountenance Exhibits CK3 (1 – 196), CK4 and CK5. He addedthat in the most unlikely event that the court overrules his submission, he urged the court not to attachany weight to these documents for the reasons stated above. He pointed out that DW1 admitted under cross-examination that Exhibit CK3 (1-196) is an incomplete document as pages 211-225 which deals with termination of employment from the table of content are missing.

Furthermore,DW1 admitted under cross examination, that ExhibitsCK4 and CK5 were never brought to the attention of the claimant while she was in the service of the Defendant, the cited Exhibits could therefore not have been the basis for the determination of the Claimant�s appointment, as Exhibit F5 (letter of termination) never made any reference to theseExhibits. He thereforeurged the Court not to attach any weight to Exhibits CK4 and CK5.

The Claimant�s counsel posited that in proof of her casethe claimant called two witnesses, CW1 and CW3 and also testified for herself and tendered several documents which were marked asExhibits. He pointed out that the claimant�s termination letter was tendered and admitted as Exhibit F5 whilst the Defendant�s customized Group HR Policies and Procedure April, 2016 regulating the employment relationship was admitted as Exhibit F6. The Claimant maintained under cross examination that she worked with the Defendant for 10 years as her annual leave was still intact when her appointment was terminated by the Defendant.

Learned Counsel further submitted that it is evident on the face of Exhibit F5 that the Claimant�s appointment was not terminated for any misconduct.In factExhibits F8 (1 – 5) particularly the Defendant�s email sent on 10^th October, 2017 wherein the Defendant specifically stated that the Claimant�s appointment was determined simply on the ground that her services were no longer required, is instructive. In addition, DW1 admitted under cross examination, when he was confronted with Exhibit CK1that the only reason the Defendant gave to the Claimant for not paying her gratuity was that she did not work with the Defendant for up to 10 years. It is a settled principle of law that parties are not permitted to read into a document that which is not clearly stated therein. The Defendant having failed to give any reason for the determination of the Claimant�s appointment vide Exhibit F5 cannot, at this stage, turn around to make such bare and unfounded claim as this will amount to an after thought. He relied on the following judicial authorityUBN Ltd & Anor v. Nwaokolo (1995) LPELR � 3385 (SC) p. 37 and others.

Learned counsel argued that the allegation against the claimant by the defendant only came about on 8^th November, 2018 vide the Defendant�s amended statement of defence after the Claimant had initially closed her case. More so Exhibit F6,expressly excluded the requirement of working for 10years when the employment is determined on the ground of services are no longer required.

The Claimant emphasized that notice to produce the original of Exhibit F6 was issued on the defendant before tendering a copy of the said Exhibit F6,after the Defendant failed to produce the original document. The defendant did not cross-examine the Claimant on the said Exhibit F6 neither did it deny the document as its applicable HR Policies and Procedures.

Learned counsel noted that the said Mr. Peter Imhoedemhe against whom the Claimant reported a case of sexual harassment, which was never investigated by the Defendant, was the principal witness that testified against the Claimant in the purported investigation contained in Exhibit CK4 while other witnesses, who are cleaners and drivers, actually made no adverse statement against the Claimant in the said Exhibit CK4.

Furthermore, CWI testified that he was employed on the same date as the Claimant and that his appointment was terminated by the Defendant on 1^st June, 2016 and he was paid his entitlements.

The claimant�s counsel submitted that only Exhibits F5 and F6 particularly paragraph 11.2.4(b)thereof should be considered by court in determining the case of the claimant. He pointed out that what the claimant is challenging is the refusal of the defendant to pay her entitlements and not the power of the defendants to terminate her appointment.Therefrom he argued that the claimant is entitled to all her claims and that the court should grant same.

On the counter-claim, Learned claimant�s counsel submitted that this is totally strange, spurious and contrary to public policy, it is therefore liable to be dismissed with substantial costs and he urged the court to so hold.

I have read all the processes filed by the parties in proof of their case, the evidence presented at trial and studied the Exhibits tendered in this case, and I have resolved that the following issues will best determine this case;

Whether or not the claimant has succeeded in proofing his claim.
Whether or not the claimant is entitled to the reliefs sought.
Whether or not the defendant is entitled to its counter-claim.

The issue raised on the admissibility of Exhibits CK3, CK4 and CK5 which were all admitted by the court in the course of trial in this casewill here be resolved first. The claimant�s counsel in his final address contested the admissibility of Exhibits CK3, CK4 and CK5 tendered by DW1 in defence of the claim before the court. On Exhibit CK3,learned counselsubmitted that the Exhibit is inadmissible as it is a photocopy andan incomplete document as Pages 212 to 225 which from the table of content deals with the termination of employment in the defendant Bank are missing, while he argued on Exhibits CK4 and CK5 that these documents although pleaded were photocopies, and no foundation was laid as to the whereabout of the original. A look at the record reveals that this issue was raised during the course of trial on the 11^th of April, 2019, when the claimant�s counsel raised an objection as to the admissibility of Exhibits CK2,CK4 and CK5 and not CK3, on the grounds that they were not pleaded and were photocopies. The parties joined issues on this and the court over-ruled the objection in a considered ruling. I find it unnecessary therefore to delve into this issue again, as the probative value to be attached to these Exhibits will be duly considered during the course of this Judgment.However, on the objection as to the admissibility of Exhibit CK3, since this came up during cross examination, and after its admission, I find it pertinent to resolve the issue raised about its admissibility. The position of the lawis that a wrongfully admitted document can be expunged even at the judgment stage. It is trite that relevancy governs admissibility, and in order for a document to be admissible in law, certain features must be present, which are;

It must be pleaded
It must be relevant
It must be admissible in law.

The relevant pages missingfrom the table of content are pages 197 � 225, and in particular 211 to 225, titled �Cessation of Employment�.This was confirmed by DW1 under cross-examination. It is not in doubt therefore that the missing pages are relevant to the subject matter in issue which relates to the entitlement of the claimant upon exiting the employment of the defendant. The court is therefore at a loss in evaluating the provisions thereunder, as the court is not expected to go and unearth the missing pages in construing the rights of both parties in this suit, the result of which I find that Exhibit CK3 is an incomplete document and therefore inadmissible in law. Consequently,Exhibit CK3 is herebyexpungedfrom the record of this court, and same is hereby marked �REJECTED�.

I will now go ahead to resolve the substantive issues for determination as identified by me above. It is pertinent to point out the various type of employment relationship recognized by our laws,can be classified into three, as identified inSalami v. Union Bank of Nigeria Plc [2010] LPELR-8975 (CA), a Court of Appeal case byLokulo-Sodipe, J.C.A, when he held as follows:

�The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavor. In this regard see the case of Central Bank of Nigeria v. Igwillo [2007] 14 NWLR (Pt.1054) 393�

In the instant case it is undisputed that the employment relationship between the parties in this case is that of Master/ servant and same can be determined at any time and without any reason given by the employer in accordancewith the case laws on this issue. in other words, ina master and servant relationship, the employer has an unfettered right to terminate or dismiss its employee, howeverin so doing, he must comply with the procedure stipulated in the contract of employment, seeLonge v.First of Nigeria Plc (2010) 6 NWLR Pt.1189, 1 @ 57, paras. E-G, S.C.

There are certain facts an aggrieved employee must proof for him to get a reprieve in an employment matter and in pursuance of his claim, these are as stated inAhmed v. Abu & Anor [2016] LPELR-40261 (CA)by Wambai, J.C.A.as follows:

He must prove the employment;
He must place before the court the terms of the contract of employment and;
He must prove in what way or manner the said terms were breached by the employer.

The fact that the claimant in this case was employed by the defendant is undisputed, and she tendered Exhibits F3 and F4 in proof of her employment. The claimant also relied on Exhibits F3, F4 and F6 as the terms and conditions of her employment. I must mention by way of an aside that the claimant sought to bring in the issue of discrimination and sexual harassment, however the position of law is that he who asserts must proof. The claimant in this instant case bears the burden of proofing these assertions by joining the relevant party against whom the allegation of sexual harassment was made, as this is a distinct subject matter on its own, that must be particularly proved againstthe appropriate parties and with the required elements present. this was not done in this case, and will therefore not be delved into.It is my finding therefore, in line with the facts adduced in this case, that the defendant merely exercised its discretion to terminate the claimant�s appointment in accordance with the terms of the employment, and there is nothing to support the assertion that the claimant�s appointment was terminated on the ground of misconduct as there is nothing in Exhibit F5 nor is there any other evidence suggesting otherwise.The issue in this case has therefore been narrowed down to a claim for entitlements.The claimant�s casehas established by evidence is not to contest her dismissal by the defendant, but a claim for her entitlements. I will therefore restrict myself thereto.

In resolving whether the contract of employment was breached in anyway by the parties, Exhibits F5 and F6 are instructive. Exhibit F5 is the letter of termination of employment of the claimant, and it was stated therein;

June 7, 2017.

Onyebezie Ruth � 3246

Ecobank Nigeria Limited

Uromi branch

Dear Ruth,

We write to advise you that in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its rights to determine the contract, effective June 8, 2017.

Accordingly, you are entitled to one month�s salary in lieu of noticeupon completion of exit clearance. In this regard the computation of this entitlements, together with any others which you may be entitled to, shall be prepared vis-a vis any indebtedness you may have to the Bank, and shall be communicated to you very shortly.

Please note that will not be accessible until you have completed the mandatory exit clearance in line with the policy of the Bank.

You are required to hand over all the Bank�s properties in your possession including your staff identity card to your Supervisor.

We thank you for your services to the Bank and wish you the best of luck in your future endeavours.

[Sgd]

Yves Mayllamene

Country Head, Human Resources

The terms of contract placed before this court by the claimant are Exhibit F3 and F6, i.e. the claimant�s letter of employment and the defendant�s customized groupHR policies respectively. Exhibit F6 clearly states that the claimant�s employment is terminable by a month notice or salary in lieu of notice. It is on record that Exhibit F6was pleaded by the claimant as the condition of service guiding her employment and was admitted without objection by the defendant. The referenced Exhibit F6 in clause 11.2.4 (b) states as follows:

�Ecobank may terminate the employment of an employee in its best interests and at its sole discretion without being required to disclose a reason unless specified otherwise by country regulation.

In this case, the affected employee shall be given one month notice in writing of such decision or be paid onemonth salary and benefits in lieu of notice together with the entitlements and benefits due to the employee under the gratuity scheme or separation scheme in place. These entitlements will be pro-rated for the number of years of service; the minimum period of service required under the scheme will not apply in this case. In the case of Group management and executives, the notice will be three months.�

In the instant case the claimant�s appointment was terminated by Exhibit F5, and no reason was given for the termination, except that it was��..in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its rights to determine the contract,�..�. It is the law that thecourt is not permitted to read into a document what is not therein stated, the defendant in this caseclaimed that the claimant�s employment was terminated for flouting the rules and policy of the Bank, however in the face of the documentary evidenceand testimony available before this court, there is no evidence to back up the claim of the defendant, and the denialof the claimant�s legitimate entitlements. A scrutiny of Exhibit F5, reveals nothing related to the termination of the appointment for violation of the rules of the Bank. It was clearly stated in Exhibit F5 that the claimant is entitled to a month salary in lieu of notice and��.the applicable computed exit benefits/entitlements (if any)��.In addition DW1 testifiedunder cross examination that the content of Exhibit CK5 which allegedly indicted the claimant was never brought to her attention, furthermorethe correspondences between the parties, particularly in Exhibit CK1 at page 4confirmed that the only reason adduced by the defendant for denying the claimant�s claim for gratuity was that she fell short of the 10 years of service required to claim any severance. The assertion by the defendant that theclaimant�s appointment was terminated for violation of the rules of the Bank is therefore untenable,unsupported andunreliable. I so hold.

On whether or not the claimant is entitled to the reliefs sought. The claims are as captured in the extant statement of facts. In proof of this leg, the claimant relied on Exhibit F6, particularly Clause 11.2 4.(b), and argued that the requirement of 10 years before a staff of the defendant is qualified for gratuity is waived by the provision that statesas follows�the minimum period of service required under the scheme will not apply in this case��. The golden rule of interpretation is that words shall be given its ordinary and plain meaning. The words captured above applied plainly, excludes the application of the minimum period required for a claim of gratuity and went further to provide that the gratuity should be pro-rated by the period spent in service. The claimant is therefore entitled to her gratuity pro-rata the number of years spent in the service of the defendant. The claimant was employed vide a letter of appointment dated 13^th of July, 2007 and her appointment was terminated vide a letter dated 7^th June, 2017 and effective 8^th of June 2017, when she received the letter from her evidence before this court. The claimant had therefore spent a total of 10 years less 32 working days in the defendant�semployment. Exhibit F6 Clause 10.8.3 (5) provides as follows:

�Gratuity Package will be paid to employees as follows:-

One month (1) Base salary for each year of service, the total which should not exceed twelve (12) months net salary or as may be determined from time to time by the management.

For the purpose of calculation, the salary of reference will be the employee�s salary at the time of departure.�

A combined reading of the above along with Clause 11.2.4(b) reveals that the entitlement of the claimant under a gratuity scheme or separation scheme is to be computed at onemonth salary for the number of years spent by the claimant with the defendant. The claimant in proof of her last paid salary tendered Exhibit F15 (1-23), and the last entry for salary received from the defendant is dated 24/05/2017 for the amount of N101,478.84K. Thus the claimant is entitled to a total of 10 months salary less 32 days under thegratuity or separation scheme of the defendant for the termination of her appointment, calculated as follows:

N101,478.84K X 9 (years) = N913,309.56K

N101, 478.84k / 365 (days) = N278.024K per day

N278.024K x 32 (days) = N8,896.77k

N101,478.84K – N8,896.77k = N92,582.07k

N913,309.56K + N92,582.07k = N1,005,891.63K

Total sum for 10 years less 32 days = N1,005,891.63K

I therefore hold that the claimant is entitled to a sum of N1,005,891.63K from the defendant as severance.

The double claim for severance and gratuity separately is however unsupported by Exhibit F6, as what was referred to in Exhibit F6 is gratuity or separation scheme in the alternative. Also, the claimant in this case did not lead any cogent evidence to support the double claim, as even CW1 called by the claimant in support of her entitlement only collected a �severance pay�. Consequently, what the claimant is entitled to is, Gratuity/severance allowance as already awarded in this judgment. I so hold.

On the claim forone month salary in lieu of notice, it is on record that what was paid to the claimant was N67,418.09calculated as follows:

13^th month salary N29,195.22k

1 month in lieu of notice N38,222.87k

TOTAL SUM = N67,418.09

It is also on record that what was paid to the claimant falls short of her last paid one month salaryof N101, 478 .84Kas seen from Exhibit F15 above.The defendant did not in anyway controvert this assertion, more so the yard stick used to calculate the one month salary in lieu of notice which was the basic salary as stated by DW1 under cross examination is unsupported by the evidence before this court, as Exhibit F6 didnot so specify. It is the law that documents speak for themselves and one cannot ascribe what is not so expressly stated to a word. The salary of the claimant is inclusive of her allowances, packaged and paid together as her entitlement for the month. The defendant ought to have qualified this if it was the intention that only basic salary will apply, having failed to do this, the golden rule of interpretation leans towards the interpretation that salaries encompasses the total monthly emolument of an employee. Thus, I find that the claimant was short paid and is entitled to the balance calculated as follows:

One month salary of claimant = N101,478.84K

Amount paid = N38,222.87k

Balance to be paid = N63,255.97K

The claimant is therefore entitled to the sum of N63,255.97K to be paid as balance for one month salary in lieu of notice by the defendant . I so hold.

On the claim for N67,444.68k as 13^th month salary of the claimant to be paid by the defendant, Exhibit F15 at page 17 reveals that the last paid 13^th month salary of the claimant is N67,444.68k, the claimant was however paid N29,195.22k as 13^th month salary, the claimant is therefore entitled to the balance calculated as follows:

N67,444.68K � N29,195.22K = N38,249.46K

The defendant is therefore to pay to the claimant the balance of N38,249.46k (Thirty eight thousand, two hundred and forty nine naira, forty six kobo).I so hold.

The claim for pre-judgment interest fails as the position of the law is that unless there was proof adduced by the claimant that such was agreed between the parties or established by custom or trade of the parties this cannot be awarded by the court. The relief fails. I so hold.

COUNTER CLAIM

The defendant/ counterclaimant claims against the claimant for the sum of N3,750,000.00k (Three million seven hundred and fifty thousand naira) itemized as follows:

Particulars of Damages

i. Solicitors professional fees. – N750,000.00

ii. Damages for maliciously instituting this suit. – N3,000,000.00

The defendant/counter-claimant claimed that the claimant maliciously instituted this suit and as a result of which it incurred unnecessary legal fees, hence the counter claim. The claimant on its own part contended that the counter claim of the defendant is strange spurious and contrary to public policy.

In support of the counter claim the defendant tendered Exhibit CK6 which is the receipt for solicitor�s fees paid by the defendant, and relied on the evidence of DW1. The claimant on her own part contested the counter claim and argued that if the court finds merit in the case of the claimant, the counter claim is bound to fail.

I have well considered the counter claim of the defendant in this case, and I find that the claimant in this case has established by the evidence adduced an infringement of her legal right which she is allowed to ventilate. Consequently, the claim before this court is in no way malicious as to warrant an award for damages as captured in the counter-claim. Moreover the defendant/counter-claimant failed to adduce any cogent evidence in proof of the malice of the claimant.It also follows that the claim for solicitor�s fees also fails, in view of the holding of the court above, as there is no basis upon which the defendant can be so awarded.

The counter claim of the defendant is therefore consequently dismissed for lacking of merit. I so hold.

Finally, I hereby hold and order as follows:

The defendant is hereby ordered to pay the claimant a sum of N1,005,891.63K (One million, five thousand, eight hundred and ninety one naira, sixty three kobo) as gratuity/severance allowance.

The defendant is hereby ordered to pay to the claimant a sum of N63,255.97K (Sixty three thousand, two hundred and fifty five naira, ninety seven kobo) as balance for onemonth salary in lieu of notice to the claimant.

The defendant is also to pay the balance of 13^th month salary in the sum of N38,249.46K (Thirty eight thousand, two hundred and forty nine naira, forty six kobo) to the claimant.