IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JANUARY 28, 2019
SUIT NO. NICN/LA/292/2016
BETWEEN
Mr Samson Iyanda– Claimant
AND
First Bank of Nigeria Ltd – Defendant
REPRESENTATION
Waheed Kasali, with Omowunmi Kareem and Miss Susan Oziegbe, for the claimant.
Chief Adewale Adeniji, with Messrs Ugochinyere Ekeugo, Dunsin Akinsola and Y. Bejide, for the defendant.
JUDGMENT
1. The claimant commenced this action by a complaint filed on 6th May 2016 and accompanied with the statement of facts, list of witnesses, witness statement, list of documents to be relied upon at trial and copies of the documents. By the complaint and statement of facts, the claimant is claiming against the defendant the following reliefs:
(a) A declaration that the refusal of the claimant early retirement by the defendant amounts to a breach of the contract of employment between both parties.
(b) A declaration that the action of the defendant in forcing and/or compelling the claimant to write an early retirement letter dated 16th October 2015 which the defendant refused to honour amounts to unfair labour practice and it is therefore unfair, illegal and unconstitutional.
(c) A declaration that the action of the defendant in forcing and/or compelling the claimant to write early retirement letter dated 16th October, 2015 has frustrated the welfare loan between the claimant and the defendant herein.
(d) A declaration that the action of the defendant in forcing and or compelling the claimant to write an early retirement letter dated 16th October 2015 which the defendant refused to honour amounts to unfair labour practice and it is therefore unfair, illegal and unconstitutional.
(e) A declaration that the defendant cannot convert the claimant’s welfare loan to a commercial loan and run at the prevailing commercial interest while the claimant is still challenging the wrongful rejection of his early retirement.
(f) An order directing the defendant to approve and honour the claimant early retirement letter dated 16th of October 2015 as compelled by the defendant.
(g) An order directing the defendant to pay the sum of N23,229,007.00 (Twenty-Three Million, Two Hundred and Twenty-Nine Thousand, Seven Naira) beingtheoutstanding amount due and payable to the claimant by the defendant upon the claimant’s early retirement age which amount the defendant has refused and/or neglected to pay despite repeated demands.
(h) An order of perpetual injunction restraining the defendant, its agents, privies, or anybody claiming through it from selling, disposing or however interfering with the claimant’s possession and quiet enjoyment of the claimant property situate, lying and being at Plot 7, Block I-J, Voera Estate off Lagos Ibadan Expressway, Arepo, Ogun State.
(i) The sum of N500,000,000.00 (Five Hundred Million Naira) for the impairment of the claimant’s health as damages suffered as a result of the claimant’s employment with the defendant, which further aggravated as a result of forcing the claimant to write his letter of retirement when he had no intention of doing so.
(j) The sum of N50,000,000.00 (Fifty Million Naira) as cost of Solicitor’s fees.
2. The defendant entered formal appearance and then filed itsstatement of defence and counterclaim dated 25th October 2016 (together with the list of witnesses, witness statement on oath, list of documents and copies of the documents). In its counterclaim, the defendant counterclaimed against the claimant for the following reliefs:
(a) Judgment in the sum of N10,725,750.23 (Ten Million, Seven Hundred and Twenty-Five Thousand, Seven Hundred and Fifty Naira and Twenty-Three Kobo) owed to the Claimant by the Defendant with respect to the loan facility extended to him.
(b) Interest at the rate of 23% per annum from the date of this counterclaim till judgment, and thereafter at 6% per annum until final liquidation.
(c) Cost of the action.
3. In response, the claimant filed a reply and defence to counterclaim and additional written statement on oath of the claimant, both dated 20th March 2017.
4. At the trial, the claimant testified on his own behalf as CW, while Mrs Ademidun Coker, the Employee Corrective Officer of the defendant, testified for the defendant as DW. The claimant’s frontloaded documents were marked Appendix 1 to Appendix 11 with the Court noting that Appendix 10 has no source. The defendant’s frontloaded documents were marked as Exhibits D1 to D4. The two witnesses adopted their respective fronloaded documents. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 15th March 2018, while the claimant’s was filed on 1st June 2018. The defendant’s reply on points of law was filed on 12th June 2018.
THE CASE OF THE CLAIMANT
5. The claimant was an employee of the defendant and was a staff of the MBC International Bank Limited from February 2003 till December 2005 when the Bank merged with the First Bank Ltd and the claimant’s services were transferred to the defendant (FBN Ltd) as a Manager.The defendant confirmed the transfer of employment of the claimant to the defendant and issued a letter dated 15th December 2005 stating that the employment of the claimant with the defendant takes immediate effect.Upon resumption at the defendant’s office, he was posted to Budget and Performance Department where he performed creditably well and based on his exemplary performance, he was posted to Banque International De Credit (BIC) DRC in Congo as the Head of Finance via the defendant’s letter dated November 27, 2012.While the claimant was in Congo, he was recalled back to Nigeria by Human Capital Management Development (HCMD) effective July 17, 2015 and he reported to HCMD on Monday July 20, 2015 where he was informed verbally by Mrs Barbara Harper that the Management had directed that he should go on early retirement.Thereafter, he reported to his direct supervisor who in turn informed him to source for another department to absorb him or take the option of early retirement.Based on this, the claimant sourced for and got another offer at the North Directorate of the defendant and the Director instructed the HCMD to process the claimants’ transfer, which the HCMD refused.While the claimant was expecting his letter of transfer to the New Department, he got an unexpected call from one Mrs Oyinade Kuku(a staff of the defendant at the HCMD Department) on 15th October 2015 asking him to report on 16th October 2015 at the HCMD. On getting to the office on 16th October 2015, the claimant was compelled under duress by Ms Harper Barbara through Oyinade Kuku and Ohiomoba Ikhide to tender an early retirement letter immediately.
6. The claimant went on that despite the letter mentioned earlier, the defendant acted in bad faith by threatening the claimant to pay the welfare loan and that it will be converted to a commercial loan at the prevailing commercial interest contrary to the letters of offer and acceptance of Exhibits D2, D3 and D3A – D3B respectively. That he is jobless and over 50 years and has no prospect of getting another job.As a result of his forceful written letter of early retirement, he has suffered psychological and unimaginable trauma, hardship and mystery. That when the defendant did not pay him his early retirement benefits, the claimant has approached this Court for justice.However, the defendant joined issues and pleaded that payment of retirement benefit is at the management discretion which is not contained in the contract of employment between the parties.That the defendant who refused to pay his early retirement benefitsand who also frustrated the repayment plan of the loan advanced to the claimant is now counterclaiming and demanded for the staff welfare loan advanced to the claimant at the prevailing commercial rate of interest which was not part of the agreement between the parties in terms of letters of offer and acceptance.
THE CASE OF THE DEFENDANT
7. The defendant’s case is that the claimant was never compelled under duress to tender an early retirement letter, because of its well laid down policy for this, that any member of its staff can exit its services regardless of age or years of service, at any time provided it is in line with approved policy; that promotion was at the defendant’s discretion and vacancy at a higher level also depends on the defendant’s policy. That accepting an application for voluntary early retirement is strictly on the management discretion of the Bank. That any employee leaving the services of the bank must settle all indebtedness or make acceptablearrangements for their settlement. That where an employee exits its service, balances on outstanding loan balances are charged interest at commercial rate. That Appendix 9 (tendered by the claimant) communicated the bank’s exit process in line with its policy to the claimant contrary to claimant’s denial. That nothing surrounding the resignation of the claimant could be regarded as unfair trade practice or non-standard work arrangement; that the claimant’s employment carried with it benefits such as pension, ability to engage in collective bargaining and provisions to go on leave, among others. That during his employment with the bank, the claimant was handsomely remunerated through regular and timely payment of salaries, wages, allowances, bonuses, profit sharing, pay-for-performance and other perquisites commensurate with best industry standards; and that at the point of his resignation, the claimant was paid all his due benefits and entitlements. That this current suit is a calculated attempt by the claimant to avoid the performance of his obligation to the defendant i.e. repaying the welfare loan he owes the bank, as he contracted to repay.
8. In proof of the defendant’s counterclaim, the defendant’s case is that the relationship between it and the claimant was one of a contract of employment in the nature of a master/servant relationship. That there is no doubt that the claimant was indebted to the Bank via a loan contract that is separate and distinct from the contract of employment. That upon the claimant’s application for a staff housing loan of N9,400,000.00 (Nine Million, Four Hundred Thousand Naira) only, the sum of N8,500,000.00 (Eight Million, Five Hundred Thousand Naira) only was approved, which was disbursed in three tranches (Exhibits D1, D2, D3 – D3B). To secure the loan Exhibit D4 was created. That the claimant has defaulted in the repayment of his loan to the defendant and the said claimant has been notified of his indebtedness, and the fact that the same would be converted to a commercial loan running at the prevailing commercial interest rate. That as at 9th November 2015, the claimant owed the sum of N10,725,750.23 (Ten Million and Fifty Naira and Twenty-Three Kobo, sic) on the loan.
THE SUBMISSIONS OF THE DEFENDANT
9. The defendant submitted two issues for determination, namely:
(1) Whether the claimant has proved his claims in this action, based on the evidence before the court.
(2) Whether the defendant/counterclaimant is not entitled to the claim sought by its counterclaim.
10. On issue (1), the defendant submitted that the facts are not in major dispute. That it not in doubt that the claimant was in the employment of the defendant; neither is it in doubt that he is no longer an employee of the defendant. That what the parties joined issued on and, therefore, in dispute are whether:
(a) Given the facts of this case, the conduct of the defendant amounts to unfair labour practice within the ambit of settled law.
(b) The defendant frustrated the claimant’s repayment of the claimant’s welfare loan.
(c) Despite having left the Bank’s employment, the claimant is not contracted to repay the outstanding on his loan, given the fact that same is covered by a mortgage deed.
(d) The claimant is entitled to the injunctive relief restraining the defendant from using its rights under Exhibit D4.
(e) The claimant is entitled to the pecuniary sums claimed -N23,229,007.00 (Twenty-Three Million, Two Hundred and Twenty-Nine Thousand, Seven Naira) as the outstanding amount due and payable to him by the defendant, and N50,000,000:00 (Fifty Million Naira) only as cost of solicitor’s fees.
11. To the defendant, the claimant’s case is that he was compelled “under duress” to tender an early retirement letter on 16th October 2015. In support of this claim, he tendered Appendix 5. The defendant then invitedthe Court to consider the following things on Appendix 5.
First, if indeed the claimant was pressured to write that exhibit “that day” as claimed, how come the “all-important document” was only received by the defendant a whole six (6) days later, on 21st October 2015, as seen by the receipt endorsement on the letter? There is another endorsement on the letter which confirms date of receipt, that at the bottom of the exhibit. The Court will also see that the letter was auctioned for treatment on “21/10/15”, the day of receipt.
Second, asked under cross-examination how he was compelled to resign by Ms Harper “under duress”, (paragraph 14 of CW’s witness statement on oath), CW answered, “she said management has decided that I should resign”. Pressed further, he insisted that was how Ms Harper compelled him. He also admitted that the 2 people he testified (in his said paragraph 14) interacted with him – Oyinade Kuku and Ohiomba Ikhide – were his juniors in hierarchy, even though he could not remember their grades. “Duress” was defined in CCC Thrift & Credit Society & 6 orsv. Bassey Ekpo [2001] 17 NWLR (Pt. 743) 649 as “… an unlawful threat or coercion used by person to induce another to act (or to refrain from acting) in a manner he or she otherwise could (or would); subjecting a person to improper pressure, which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as a free agent”.
The claimant has not shown in real terms how he was coerced. He had 6 days to think through the request of the bank to retire, and he had a choice to accept or reject. According to his testimony the two individuals through whom he was allegedly compelled were junior to him in rank in the bank. He neither pleaded nor placed evidence before the Court the kind of threat he was under that made it inevitable for him to author Appendix 5.
Third, the Court is invited to consider paragraphs 4 – 6 of Appendix 5. It says, “4. The above notwithstanding, I hereby use this last opportunity to express my gratitude to the management for the opportunity afforded me to serve the bank and to the staff, for their support during my stay here. 5. I wish you all the best of luck going forward. 6. Many thanks and kind regards”.
The tone of Appendix 5 is not that of someone who was compelled to resign. There is nothing in this exhibit that backs up the claimant’s oral evidence that he was compelled under duress to resign. And as no oral evidence can re-write the contents of a document, theclaimant has not proved his averment, to wit: he was compelled under duress to apply for early retirement.
The claimant sought on the premise of “compulsion”.
12. To the defendant, on the basis of compulsion and duress, and the rejection of Appendix 5 by Appendix 9, the claimant seeks declaratory reliefs that the refusal of early retirement amounts to breach of contract of employment between the parties; unfair labour practice which is therefore unfair, illegal and unconstitutional – claims (a), (b) and (d); and a mandatory relief directing thedefendant “to approve and honour the Claimant early retirement letter dated 16th of October 2015 as compelled by the Defendant” – claim (f). The defendant then proceeded to make submissions regarding the respective claims of the claimant.
13. On reliefs (a), (b), (d) and (f), the defendant submitted that the claimant’s claim that rejection of Appendix 5 amounts to breach of contract of employment presupposes that there would be proof of the terms of employment allegedly breached placed before the Court. That none was pleaded or provided. That the commencement of the claimant’s employment has to be his letter of employment asthat is where the terms of his contract of employment would be. Rather than plead and tender his letter of employment to show the terms of his contract, the claimant rather tendered Appendix 6. That the relationship between the claimant and defendant was one of master/servant, governed by the contract of employment not the Employee Handbook (Appendix 6). To the defendant, Appendix 6 is a collective agreement that applies to all members of staff of the defendant, of different grades of employment as obvious from its contents; and is not specific as to any single employee’s terms of engagement. The defendant relied on “the decision of this Honourable Court” in Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares[2012] 29 NILR (Pt. 84) 329 at 351, para. D, wherethe Court held that the document which regulates the relationship between an employer and employee is the service agreement or contract of service; not a collective agreement. That having failed, therefore, to place any evidence of the terms unique to his employment before this Court, there is no information that this Court can go by to ascertain whether the terms of that contract have been breached. However, that there is evidence before this Court, admitted by CW under cross-examination, to the effect that prior to when he authored Appendix 5 the defendant never withheld any of his emoluments. That this admission by CW puts the lie to his claim for breach of contract because under the master/servant relationship he was never denied any emolument that was his due. The defendant then urged the Court to hold that there could not have been a breach of that contract, until it was determined by Appendix 5. That what happens pursuant to Appendix 5 cannot be called a breach of the terms of that master/servant relationship because the exit was at the behest of the claimant. All that could be contested post-Appendix 5would be what entitlements, if any, the claimant would get, urging the Court to so hold and deny claimant’s claim (a).
14. The defendant went on that claims (b) and (d) allege unfair labour practice;both claims are in fact the same, word for word. What is unfair labour practice? That although it is yet an undeveloped aspect of labour jurisprudence in Nigeria, labour jurists believe that it would mean labour practices regarded as unfair. They accept that it is equity-based labour jurisprudence, “equity” in this context meaning going beyond merely asking whether an employer had acted lawfully, to an enquiry into the “fairness” of the action.A “fair” practice meaning one that was not capricious, arbitrary or inconsistent. “Practice” interpreted as including habitual action and a single act or omission, and “labour” as widely encompassing as mental and physical labour.Related to the case at hand, the defendant submitted that theclaimant has not shown by proof how the action of the defendant in not accepting Appendix 5 amounts to an unfair practice. That the claimant has not proved how he was coerced into authoring Appendix 5; that in fact the tone of that exhibit suggests otherwise. That CW had testified under cross-examination that the defendant did not withhold from him any of his emoluments before he authored Appendix 5. Now, on this exhibit, the claimant would rather the Court believe that vide clause 8:21:1 of Appendix 6, the defendant has no discretion just because he had authored Appendix 6.It is the defendant’s submission that a correct interpretation of that clause would show that the election of any member of staff to take advantage of the early retirement clause is not automatic but depends on the discretion of management. That since an employee must apply for early retirement this presumes that it is not meant to be automatic, the defendant retaining the right to grant it -a point reiterated by DW before this Court during cross-examination.
15. The defendant then asked: if the Court accepts the defendant’s interpretation, what, therefore, would be the unfair practice thedefendant can be accused of that would warrant a grant of either claims (b) or (d)? To the defendant, applying for early retirement, to which sundry benefits would attach, cannot be a given. That it is inconceivable that once a staff elects to retire early, his employer should not have a say in whether or not that staff could leave early. That it should be notedthat where a member of staff elects to leave his employment, he would be expected to give adequate notice, or pay in lieu of that notice. That that is trite; and it would not be fair, where a staff elects to retire early and not expect an input, yes or nay, from an employer who would be expected to pay him certain incentives. That a decision otherwise would not be equitable; falling short of the general principles of unfair labour practice. That labour relations is not only about the employee, but also about the employer; otherwise a time would come where such interpretation would create a situation of “us” against “them”, defeating as it were, the major purport of this new labour jurisprudence – harmony in the work place. That this position is apposite, citing Mix & Bake Flour Mills Industries Ltd v. National Union of Food, Beverage and Tobacco Employees (NUFBTE)[2004] 1 NLLR (Pt. 2) 247 where this Court defined what constitutes unfair labour practice thus: “An unfair labour practice is usually due to the employer’s dislike of trade unions and his opposition to the presence of a trade union in his plant. To be unfair, it must be established that the practice does not conform with best practice in labour circles, as may be enjoined by local and international experience”.
16. Coming back to the facts of this case, the defendant submitted that nothing pleaded or proved by this claimant can be construed to constitute unfair labour practice on the part of the defendant, urging the Court to so hold. That it surely cannot be enough that just invoking that phrase “unfair labour practice” without more by way of pleading and proof would sway a superior court of record, whose remit, though a labour court, remains to apply, as all superior courts of record set up by the Constitution should, the rules of evidence. That sections 131 – 133 of the Evidence Act 2011 places an evidentiary burden of proof on this claimant to show what this defendant has done that constitutes unfair labour practice, and that, on the evidence, theclaimant failed to discharge this burden of proof. That the claimant has not placed such evidence before this Court that shifts that burden of proof unto thedefendant, urging the Court to so hold and also dismiss claims “n” (sic) and (d) of the statement of facts.
17. As to the mandatory relief contained in claim (f) of the claim, which seeks an order of this Court directing the defendant to “approve and honour the Claimant early retirement letter dated 16th of October 2015 as compelled by the Defendant”, the defendant submitted that the trite position of every contract of employment is that a servant cannot be imposed on a master; that it is only in cases of employment contracts with statutory flavour that such mandatory orders could be made, urging the Court to so hold, and relying on Wilbros Nigeria Limited &anor v. Onwume Macaulay [2009] LPELR-8507 (CA), where the Court of Appeal held that a servant whose services are no longer required cannot be imposed on an unwilling master since the relationship should be based on mutual agreement. To the defendant, Appendix 9 shows that the defendant is no longer willing to work with the claimant, and that on the settled position of the law, the contract of employment being that of a simple master/servant, and not one under statute, thisCourt cannot grant claim “f”, urging the Court to so hold.
18. For reliefs (c), (e) and (h), which deal with the loan the claimant took from the defendant, and the security for that loan, the defendant joined issues with the claimant on these claims and the claimant set up the defence of frustration of contract arguing that if the defendant had approved Appendix 5, the early retirement benefits due to him would have paid off the outstanding balance on the welfare loan. That while the claimant characterized the loan as a “staff welfare loan”, it is clear from Exhibit D1 (application for the loan authored by CW), Exhibit D2 (Approval for the loan), Exhibits D3 to D338 (the claimant’s acceptance of the loan and applications for drawdown thereon) and Exhibit D4 (Deed of Tripartite Legal Mortgage dated 28th September 2011, registered as No. 19 at page 19 in Volume 806 of the Lands Registry in the office at Abeokuta, securing the loan) that the facility was anything but a welfare loan. That this is the claimant’s first attempt to throw this Court a red herring on the issue of this loan. That the claimant applied for a mortgage loan, not a welfare loan asthat is the caption of Exhibit D1. That the defendant approved a Building Loan, not welfare loan. That the claimant in drawing down on the approved facilities wrote to draw down on a mortgage loan. That it is too late in the day for CW to seek to characterize by oral evidence as welfare loan, what documentary evidence characterizes as mortgage loan, urging the Court to so hold.
19. The defendant went on that according to the evidence on record, the claimant has twoexcuses for not (sic) desiring claims (c) and (e). These are: (1) that the defendant itself frustrated the repayment of the mortgage loan because if only it approved Appendix 5, his supposed entitlements would have paid for the outstanding sum on the loan; (2) that the defendant cannot now, as it plans to, make the loan a commercial loan attracting commercial interest. That it is the claimant’s case that he took the loan with the intention of:(1) repaying the said loan while in the service of the defendant;(2) now that he is out of defendant’semployment he has no other source of income to pay the exact outstanding balance on the loan; and (3) the loan agreement between him and the defendant specifically states that the repayment of the loan shall be from the defendant’s salary. The defendant in reactiongave evidence that:(1) the loan contract is separate and distinct from the contract of employment;(2) in accordance with bank policy, employees leaving the bank must settle all their indebtedness to the bank or make acceptable arrangements for the settlement; and (3) once an employee exits the service of the bank, outstanding loan balances are charged at commercial rate.
20. The defendant then submitted that contrary to expectation of burden of proof, the claimant placed no evidence before the Court in proof of paragraph 26 of his statement on oath of 5th May 2016;neither did he provide proof of the statement in paragraph 5(2) of his additional witness statement on oath of 20th March 2017, urging the Court to invoke section 167(d) of the Evidence Act 2011 against the claimant that he either does not have such proof, or any such proof he hasfailed to tender would not have supported his assertion.Second, that there is no clause of any documentary evidence placed before the Court by the defendant on this building loan that supports any of the three assertions of the claimant set out earlier. That there is no clause in Exhibit D4 that says repayment of the loan shall be from CW’s salary as an employee of the defendant. That this supports the defendant’s evidence that this loan is a stand-alone from contract of employment. That the Court will also see from the last paragraph of Exhibit D2, the approval of the loan, the last paragraph before salutation says “Repayment will be spread over a period of 132 months at the rate of N64,393.94 per month at 5% interest rate per annum or outstanding balance shall be liquidated on leaving the service of the bank”. That this shows that both parties, thedefendant who authorised Exhibit D2, and the claimant who accepted same by Exhibit D3, expect the claimant to pay the outstanding balance on the mortgage loan even “on leaving the service of the bank”. That this shows that repayment need not be from the salary of the defendant as he would earn no salary once he leaves the service of the bank. Te defendant also submitted that this provision is subsisting and binding on the claimant, even if as he now claims he cannot afford to make payment as he is jobless. The defendant proceeded that contracts for which consideration has been afforded (and CW admitted under cross-examination that he fully benefited from the loan facility) must be carried out. Furthermore, that being out of a job is not one of the legally recognised reasons why a validly executed contract can become frustrated. That when the claimant authored Exhibit D3, which accepted the conditions of Exhibit D2, he accepted that he had to repay the loan even when he leaves the service of the bank, howsoever that happens, and that he cannot now seek to resile from that agreement, urging the Court to so hold.
21. The defendant went on that relief (h) seeks to set aside the rights of the defendant as a mortgagee under Exhibit D4, which gives the defendant all the powers the claimant seeks to deny it by this claim. That it is on record, by testimony of both CW and DW, that the claimant owes the defendant money on the building loan; that this loan is due and has been demanded for, for whichthe claimant says he is now impecunious to repay. that despite this overwhelming body of evidence, oral and documentary, the claimant still wants the Court to perpetually restrain the defendant from exercising the rights he, the claimant, freely gave under Exhibit D4. That the law is trite as to the circumstances when a mortgagee can be denied his rights under a mortgage. That none of these instances have been pleaded and proved by credible evidence in this matter. The claimant, for example, has not alleged or proved fraud or bad faith regarding Exhibits D1, D2, D3-D38 or D4. That by contract and by law, therefore, all the claimant’s unexpired interest in the property situate, lying, and being at Plot Block I-J, Voera Estate, off Lagos/lbadan Expressway, Arepo, Ogun State, and charged under Exhibit D4, belong to the defendant until the claimant liquidates his admitted indebtedness to the defendant on the mortgage loan, relying on Rasaq Akano v. FBN Plc. &anor [2004] 8 NWLR (Pt. 875) 318. That in the above premises, the claimant’ relief (c), (e) and (h) must fail.
22. Regarding reliefs (g), (i) and (j), the defendant submitted that from the pleadings, there is no relief (j). That the claimant inadvertently has two (2) reliefs (i). For clarity purposes, the defendant dubbed the second relief (i) for solicitor’s fees “relief (j)”, and then advanced arguments thereon. In relief (g), the claimant claims the sum of N23,229,007 only as his entitlement based on his early retirement. Ostensibly, in proof of this he tendered Appendix 10. He also gave testimony that he demanded for the payment of this amount from the defendant vide Appendix 11. To the defendant, despite Appendixes 10 and 11, the claimant has not offered any acceptable proof of (a) his entitlements, and (b) his demand for the same. For one, that Appendix 10 has no source;there is no way to discern its maker; andit was not signed. As such, that it is not an authentic document;it has no credibility; andit is just a piece of paper. That even though Appendix 10 was admitted without opposition form the defendant, the purpose of the defendant’s argument is not as to its admissibility (because it was pleaded), but as to the weight the Court should attach to it. That Appendix 10 is ostensibly typed on a computer device; as suchit caught out by section 34(1)(b) of the Evidence Act 2011. That this Court cannot attach any weight to it asit has no probative value, relying on Adesiina Jinadu & ors v. Israel Esurombi-Aro & anor [2009] LPELR-1614(SC). That doing otherwise will take thisCourt into the realm of speculation, and no court should do that, relying on Adegoke Ojagbami & ors v. Chief Lejuwa & ors [2004] LPELR-7338(CA).
23. Also, that Appendix 11 does not qualify as proof for the demand of the said sum of N23,229,007.00. That the exhibit has 12 paragraphs butnot once is this sum of money mentioned, nor a demand made for this sum of money, urging the Court to so hold.
24. The defendant continued that relief (i) is an orphan – no pleading, no evidence. That the claimant claims the sum of N500,000,000.00 only for the impairment of his health as damages suffered as a result of the claimant’s employment with the defendant, which further aggravated as a result of forcing the claimant to write his letter of early retirement when he had no intention of doing so. To the defendant, the claimant has 32 paragraphs of pleading in his statement of facts, 12 more paragraphs of pleading in his reply and defence to counterclaim. He has 33 paragraphs of oral evidence in his witness statement on oath, and 12 more paragraphs of oral evidence in his additional witness statement on oath. That none of these paragraphs contain one averment or oral evidence in support of this head of claim. That it is trite that issues cannot be joined on facts not pleaded; and where evidence is not offered for any claim such claim is deemed abandoned. That the claimant, having not pleaded any facts or testified on it, has abandoned his claim for N500,000,000.00, relying onMohammed Jubrin v. NEPA[2004] 2 NWLR (Pt. 856) 210.
25. For relief (j), is a claim for N50,000,000.00 only as solicitor’s fee, the defendant submitted that this head of claim also suffers the same fate as relief (i), reiterating its arguments in that regard and urging the Court to also dismiss the same.In the above premises, the defendant submitted that reliefs (g), (i) and (j) must fail. In concluding its arguments on issue (1), the defendant urged the Court to answer the question formulated in this issue in the negative and dismiss the main action in its entirety, with cost.
26. Issue (2) is whether the defendant/counterclaimant is not entitled to the claims sought by its counterclaim. To the defendant, there is no doubt from the evidence on record that the claimant is indebted to the Bank as claimed in the counterclaim. That the claimant himself alluded to this in his pleadings, and oral evidence (paragraphs 26 and 27of the claimant’s witness statement on oath, paragraphs 5(b) and 6 of the additional witness statement on oath) and also repeatedly admitted this under cross-examination. That the defendant tendered Exhibits D1-D4 to establishthe application for the mortgage loan; the approval thereof; acceptance of the loan; the applications to draw down on the fund; and the security for the loan. The defendant’s case is that the claimant was availed a Staff Building Loan of N8,500,000.00 (Eight Million, Five Hundred Thousand Naira)only vide an approval memo dated 18th May 2010 (Exhibit D2). The facility was secured by a legal mortgage over property located at Plot 7, Block I-J, Vera Estate, off Lagos-Ibadan Express way, Arepo, Ogun State (Exhibit D4). The facility was disbursed to the claimant in accordance with the terms of the approval memo (Exhibit D2). That upon the claimant’s exit from the services of the defendant, he failed to settle his indebtedness with the Bank or make provision for the continuous payment of the loan facility, thereby defaulting. That as at 9th November 2015, the amount owed by the claimant to thedefendant is 10,725,750.23. That the defendant’s letter of 18th November 2015 demanded for this repayment within a 30-day period, otherwise the same would be converted to a commercial loan, at the commercial interest rate. That the claimant can pay the amount claimed, interest and cost.
27. The defendant went on that it did not tender a statement of account showing the balance of the said sum of N10,725,750:23, or the letter dated 18th November 2015. However, that it need not have. That the claimant has not by pleading or evidence disputed this figure or the receipt of the said letter of 18/11/2015. That it is tritethat and any averment not disputed is deemed admitted and need no further proof, relying on Idika v. Uzoukwu[2008] 9 NWLR (Pt. 1091) – the page is not supplied. That what the claimant did by pleading and evidence on these two documents be found in paragraphs 24 of both the statement of facts and CW’s witness statement on oath of 5th May 2016, and in Appendix 11. That the said paragraph 24 confirms the existence and receipt of the defendant’s letter of 18/11/2015. That the Court will see from the said paragraph 24 that the claimant’s only quarrel with that letter is as to whether the issue of commercial interest rate was agreed to inter parties, not the existence of the letter. That Appendix 11 confirms the figure stated in the said demand letter of 18/11/2015, referring to paragraph 9 of the exhibit, which says:
Your Letter of demand for the sum of N10,725,750.23 (Ten Million, Seven Hundred and Twenty-Five Thousand, Seven Hundred and Fifty Naira, twenty-three kobo) has been shown to us by our client. Our client has only stalled with the payment because he is unemployed and has no other means of paying the loan. You cannot convert the indebtedness to Commercial Loan from welfare. This is because our Client did not retire voluntarily and as at now does not know his status with the Bank; he cannot therefore be compelled to repay the loan within the time stipulated in your letter.
That on the authority ofIdika v. Uzoukwu (supra), the defendant need not provide proof of the sum outstanding against the defendant or the demand letter for repayment thereof, as the claimant by his pleading and evidence has confirmed the existence, receipt and content of the said demand letter, urging the Court to so hold.
28. That the claimant’s defence to the counterclaim is contained in his reply and defence to counterclaim. That CW in his additional witness statement on oath testified that the loan contract is not separate from the contract of employment and that repayment of the loan is tied to his salary, and not from any other source. That the claimant did not default in his loan repayment, but that his compulsion to take early retirement frustrated the loan repayment and “therefore cannot be expected by the Counter Claimant to continue to grow on interest application”. He gave oral evidence of 2 particulars of frustration: that the loan agreement specifically states that the repayment of the staff welfare loan shall be from the claimant’s salary; and because of his exit frustration occurred. Finally, that CW testified that because he was jobless as a result of his forceful retirement, he could not afford to make payment on the loan. In reaction, the defendant submitted that the claimant provided no documentary evidence in proof of his first particular of frustration, to the effect that the loan agreement inter parties specifically provides that repayment of the loan must come from his salary. Secondly, that the loan contract is a completely different arrangement from the customer’s employment contract and as such not tied to the claimant’s continued employment. To the defendant, the claimant has not shown by proof any viable defence to the counterclaim.Furthermore, that parties are bound by their contract; that courts respect sanctity of contract and so do not create contract for parties but apply the terms of their agreement the way it is, relying on Idufueko v. Pfizer Products Ltd [2014] 12 NWLR 96 at 100. That this Court should hold that on the strength of documentary evidence before it, the contract for the mortgage loan, as evidenced by Exhibits D1 to D4 does not provide that the repayment of the mortgage facility would be from the claimant’s salary.
29. Additionally, that the claimant executed Exhibit D4, which by clause 2, the borrower or surety jointly and severally covenanted to pay moneys due to the Bank. That by his own admission, the claimant failed to this. Clause 4 establishes that the security interest created in the mortgage shall only be discharged when the borrower/surety shall have fully liquidated the indebtedness in respect of which the mortgage was created; and this has not been done. It is thus the defendant’s submission that that as long as the loan remains unpaid, the it as mortgagee cannot be restrained from exercising its powers under Exhibit D4.Finally, that with the documentary evidence earlier mentioned and the state of oral evidence to the effect that the claimant has not denied taking the facility or that he is indebted to the defendant, the Court should find for a fact that the counterclaim is proved and answer the question formulated in issue (2) in the positive and grant the same. In conclusion, the defendant submitted that on balance, the claimant’s suit is unsustainable; and the counterclaim has been proved, urging the Court to so find.
THE SUBMISSIONS OF THE CLAIMANT
30. The claimant submitted three issues for determination, namely:
(1) Whether the claimant is entitled to his early retirement benefits forced on him by the defendant.
(2) Whether the claimant is entitled to damages and all his reliefs as a result of breach of contract of employment between the parties herein.
(3) Whether having regard to the circumstances of this case, the counterclaimant has proved its entitlement to the counterclaim.
31. On issue (1), the claimant submitted that the document which regulates the relationship between an employer and employee is the contract of employment between the parties, which in the instant case is Appendix 1 (the letter of employment dated December 15th, 2005) and Appendix 6 (the Employee Handbook), both binding between the claimant and the defendant, citing Ekhator v. Alliance Autos Nig Ltd & ors[2015] 59 NILR (Pt. 205) 416 NIC. That parties are bound by the terms and conditions of the contract of employment, referring to Alhassan v. ABU, Zaria[2011] 11 NWLR (Pt. 1259) 417,Olarewaju v. Afribank (Nig) Plc[2001] 12 NWLR (Pt. 731) 691 andGTB v. Fox Glove Nig Ltd [2016] LPELR-40167(CA). To the claimant, the failure of the defendant to follow a laid down procedure to honour the claimant’s letter of early retirement forced on him is a fundamental breach of the contract of employment between the claimant and the defendant, referring to Shell Pet. Dev. Co. (Nig) v. Lawanson Jack[1998] 4 NWLR (Pt. 545) 249 CA.
32. The claimant then proceeded to narrate the facts of his case and how he was compelled to tender an early retirement letter (Appendix 5, which states: “Subsequent to management decision through you on the above subject matter, I hereby apply for early retirement as directed effective 16th, 2015”), which act is not part of the contract of employment between the parties and is not only an unfair labour practice but also a fundamental breach of contract of employment as there is nowhere in the contract of employment stating that the defendant has a right to force and/or compel an employee to write a letter of early retirement as in this case, citing Ladipo v. Chevron (Nig.) Ltd [2005] 1 NWLR (Pt. 907) 227That the defendant who forced an early retirement on the claimant now declined to pay all the claimant’s benefits due to him under clause 8.12.1 of the Employee Handbook (Appendix 6), a clear breach of the contract of employment between the claimant and the defendant. That given Appendix 5, it is crystal clear that the claimant did not voluntarily write his letter of early retirement;the letter reveals that the defendant retired the claimant compulsorily on age grounds. That CW was cross examined on this letter and he maintained that on the said date he was forced to write Appendix 5, a letter that has no ambiguity to interpret and so should be given its ordinary meaning, citing IBWA Ltd v. Unakalamba[1998] 9 NWLR (Pt. 565) 245,Abdullahi v. Waje Community Bank[2000] 7 NWLR (Pt. 663) 9 and UBN v. Ozigi[1904] 3 NWLR (Pt. 333) 385 – wrong year supplied. Th claimant urged the Court to hold that he was forced and compelled to write his letter of early retirement dated 16th October 2015 against his wish and having done that, the defendant ought to have paid him all his early retirement benefits.
33. Contrary to argument of the defendant that the claimant did not plead and tender his letter of employment to show the terms of his contract, the claimant answered that he tendered Appendix 6. That he pleaded in paragraph 1 of the statement of facts and written statement on oath how he was a staff of MBC International Bank Ltd from February 2003 till December 2005 when the Bank merged with First Bank Ltd during the Central Bank of Nigeria merger or induced consolidation of that period and his services were transferred to First Bank of Nigeria Limited (the defendant) as a Manager, referring to Appendix 1 which is the letter of transfer of employment issued by the defendant to the claimant on 15th December 2015. That this letter confirms the employment of the claimant by the defendant as shown in paragraph 2 of Appendix 1 which states thus: “While your employment with First Bank takes immediate effect…” To the claimant, this is a letter of employment of the claimant from the defendant. That in the said letter, it also emphasizes in paragraph 3 that the employment of the claimant takes effect from January 1, 2006 and it will be subject to First Bank’s employment terms and conditions of service as documented in the Staff Handbook. That by the terms and wordings of Appendix 1, which is the letter of employment, it clearly shows that the defendant has admitted by Appendix 1that the Staff Handbook and Appendix 6 forms the contract of employment alongside the letter of employment. That what is admitted needs no further proof.That the said terms have now been breached by the defendant for its failure to pay the early retirement entitlement of the claimant.
34. The claimant went on that he pleaded in paragraphs 20, 21, 28 and 29 of the statement of facts and witness statement on oath that whilst he was waiting for an official letter from the defendant formally accepting his early retirement as forced on him by the defendant, he received a mail dated 9th November 2015 informing him that the management has declined/rejected his early retirement, referring to Appendix 9, a clear breach of contract of employment between the parties. That by clause 8.12.1, of the Employee Handbook (Appendix 6), the claimant is entitled to early retirement benefits which include:
a) One year total emolument less variable pay (i.e. total guaranteed pay including location and leave allowance/holiday travel allowances). This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. However, any applicant who has less than a year to retire normally will have their incentive pay prorated.
b) Senior Officers who wish to take advantage of the project scheme subject tomanagement’s approval will be allowed to go with their status cars. Status cars that are two years old and above will attract a payment of 10% of the purchase price while those cars less than two years will attract 25% of the purchase price.
35. The claimant continued that thedefendant who had already approved his letter of early retirement dated 16th October2015 by the endorsement contained at the bottom part therein now refused to honour the claimant’s letter of early retirement, referring to Appendix 5, which endorsement says: “please process in line with policy”. That this implies that the claimant’s benefit be paid in line with clause 8.12.1 of the Employee Handbook (Appendix 6). That the defendant is approbating and reprobating at the same time for its refusal to pay as stated in the endorsement at the bottom part of Appendix 5. That no word of discretion is used in Appendix 6. The defence counsel had argued that the claimant did not plead and tender his letter of employment to show the terms of his contract, that the claimant rather tendered Appendix 6, which is a collective agreement that applies to all members of staff of defendant of different grades of employment as obvious from its contents. To the claimant, this argument is false, mischievous, misleading and misconceived in the face of apparent averments in the claimant’s statement on oath. That the claimant averred in paragraphs 1 and 9 of his oath and tendered both his letter of employment and Employee Handbook marked as Appendix 1 and Appendix 6 respectively, urging the Court to discountenance the defence counsel’s argument in this regard. That contrary to the argument of the defendant that there could not have been breach of that contract, until it was determined by Appendix 5 and that the exit was at the behest of the claimant, the exit of the claimant was not at his behest rather it was the defendant who compelled him to go on early retirement as shown clearly in the opening paragraph of Appendix 5. The claimant then asked if the claimant’s exit was at his behest, whether the defendant conducted any exit interview with the claimant to ascertain the motive behind his letter of early retirement; and answered in the negative because the defendant who said that the claimant’s exit was at his behest failed to produce and place before the Court evidence of exit interview conducted with the claimant. The claimant accordingly submitted that the defendant failed to comply with the contract of employment and in consequence breached the contract of employment between the parties i.e. Appendix 1 and Appendix 6 respectively.
36. In response to submission of the defence counsel that labour practice is equity-based labour jurisprudence and that the claimant has not shown by proof how the action of the defendant in not accepting Appendix 5 amounts to unfair labour practice, and that the defendant did not withhold any of his emoluments before he authored Appendix 5, the claimant submitted that the action of the defendant by not honouring Appendix 5 after asking the defendant to source for a place which he did and the defendant thereafter compelled him to write Appendix 5 and again failed to honour same amounts to unfair labour practice. That it shows that the defendant is approbating and reprobating at the same time and neither did the defendant state specifically in response to Appendix 5 that the entitlement of the claimant will be paid at a certain date. Therefore, thedefendant’s refusal to pay the claimant’’s entitlements pursuant to clause 8.12.1 also amounts to unfair labour practice. Furthermore, that it seems that the defendant is mixing up the claimant’s entitlements with his emoluments when the defence counsel argued about emoluments in the same submission. To the claimant, his case is not about his emolument but for payment of the early retirement benefits due to him as at the time the defendant forced and compelled him to write Appendix 5, upon the receipt of which the defendant ought to have paid the claimant his entitlements.
37. In reply to argument of the defendant that a correct interpretation of clause 8.12.1 would show that the election of any member of staff to take advantage of the early retirement clause is not automatic but depends on the discretion of management, the claimant contended that in the instant case the claimant did not elect to go on early retirement by himself rather it was forced on him by the defendant. In fact, that no clause includingclause 8.12.1 of the Employee Handbook (Appendix 6) which states or mentions that payment of retirement benefit will be at the discretion of the management as to make the argument of the fence counsel correct.That the claimant wrote his early retirement letter on 16th October 2015 and payment of his benefits was refused up to the time of institution of this suit on 6th May 2016 over a period of six months. That to allow the interpretation of clause 8.12.1 given by the defence counsel will be absurd, unfair and lead to a total miscarriage of justice.In further response to argument of the defence counsel as to the claimant giving adequate notice or paying in lieu of that notice, the claimant stated that the argument is misleading as the claimant did not elect to leave his employment but rather was forced on him by the defendant, referring to Appendix 5, urging the Court to discountenance the argument of the defendant as misleading and misconceived. Additionally, that disengagement of employee must be carried out fairly and effectively as provided by section 254C(1) of the 1999 Constitution since the action of the defendant who forced and mandated the claimant to write a letter of early retirement, refusing to pay his early retirement benefits, is contrary to the terms of employment and also amounts to unfair labour practice.
38. The claimant proceeded that relief (f) is in respect of payment of the claimant’s early retirement benefits and not as to reinstatement of the claimant to the employment of the defendant. That the contract of employment of the claimant permits him to seek relief (f) given the defendant’s refusal to honour Appendix 5. As for the claim for N23,229,007.00, the claimant submitted that the defendant did not deny the entitlement of the claimant to it; and the law is clear that uncontroverted evidence, where credible, should be acted upon by the trial Court, citing Kopek Construction Ltd v. Ekisola [2010] 3NWLR (Pt. 1182) 618, Ebeinwe v.The State [2011] 7NWLR (Pt. 1246) 402, Cameroon Airlines v. Otutuizu[2005] 9NWLR (Pt. 929) 202,Okike v. LPDC [2005] 15NWLR (Pt. 949) 471 and Balogun v. EOCB (Nig) Ltd [2007] 5NWLR (Pt. 1028) – the page is not supplied. That the claimant gave evidence during trial of his entitlement and this was not controverted nor cross-examined by the defence counsel on the claimant’s early retirement benefits. That the defendant also did not put forward any document to controvert the claimant’s entitlement. That the only excuse or defence of the defendant is that payment of the claimant’s entitlement is at the discretion of the Management which is not contained in the contract of employment between the claimant and the defendant.That throughout itsdefence, the defendant did not say that the claimant is not entitled to early retirement benefits; and it is not the case of the defendant that the claimant is not entitled to early retirement benefits but that payment is at the discretion of the Management. That DW gave evidence to this effect and when cross-examined in Court. That DW further gave evidence that there was a calculation of the claimant’s entitlement but not brought before the Court. To the claimant, the defendant has accepted and admitted that the claimant is entitled to his claim as contained in paragraph 23 of the claimant’s witness statement on oath as same was not denied nor controverted. Furthermore, that the failure of the defendant to bring before the Court the claimant’s calculated early retirement entitlements is that if it is brought to Court, it will not favour the defendant, referring tosection 167(d) of the Evidence Act:“Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it”.
39. On Appendix 10 and 11, the claimant submitted that Appendix 10 is a break down and particulars of the calculation of the claimant’s entitlement which is already contained in paragraph 30 of the claimant’s written statement on oath. That the defendant also did not deny or controvert it nor cross-examined the claimant on this evidence at the trial of this suit.That this is an admission of the evidence, referring to Amadi v. Nwosu[1992] 5 NWLR (Pt. 240) 273 and Ogunyade v. Oshunkeye[2007]ll FWLR (Pt. 389) 1175 at 1192 – 1193. As for Appendix 11 dated 22nd April 2016, the claimant submitted that he referred to this letter in paragraph 31 of his written statement on oath as being the letter his solicitor wrote demanding that the claimant’s early retirement letter be accepted and all his entitlements paid, which the defendant refused. That with this, the defendant’s argument that he made no demand for the N23,229,007.00 is misleading and mischievous in the face of clear and unambiguous averments contained in paragraphs 23, 30 and 33 of the claimant’s witness statement on oath showing clearly why the claimant is in Court and demanding payment for his early retirement benefits, urging the Court to thus discountenance the argument of defence counsel. To the claimant then, from the pleadings and evidence adduced at the trial, it is obvious that the defendant has acted in bad faith by not paying the claimant his early retirement benefits; and it is the duty of Court to do substantial justice to parties where it is clear that a party’s contractual right has been breached as in the instant case, referring to Nnabude v. GNG (WA) Ltd[2010] 15 NWLR (Pt. 1216) 365 and Onwubuariri v. Igboasoiyi[2011] 3 NWLR (Pt. 1234) 357. The claimant urged the Court to resolve issue (1) in his favour.
40 Issue (2) is whether the claimant is entitled to damages and all his reliefs as a result of breach of contract of employment between the parties. To the claimant, contrary to the argument of the defence counsel regarding reliefs (i) and (j), the claimant pleaded in all the paragraphs of his written statement on oath and in particular paragraph 27 how he laboured from one department to the other in the defendant employment to source for a department that will absorb him for continuity of his job after being recalled back to Nigeria by the defendant and at the end of the day he was compelled by the defendant to write a letter of early retirement which was not honoured and his entitlement not paid. That apart from the fact of breach of contractual agreement between the claimant and the defendant, psychological trauma and health impairment of the claimant, the claimant is entitled to damages. That it is not in dispute that the claimant engaged the services of a legal practitioner to fight for his right, which ordinarily the claimant would not have done had the defendant paid the claimant all his early retirement benefit, as resort to litigation would not have arisen. Therefore, the claimant is also entitled to damages as claimed in reliefs (i) and (j) respectively. That it is unfair, improper and without conscience on the part of the defendant to demand for payment of a staff welfare loan with interest at the commercial rate of interest when in fact the defendant is holding on to or refused to pay the claimant his early retirement benefits and again still wants to exercise its power under Exhibit D4. That it will amount to injustice and unfairness to deny the claimant his retirement benefits without any allegation of fraud or misconduct. That justice is not a one way traffic; it is for both parties, urging the Court to dismiss the counterclaim. That all these wrongful acts of the defendant against the claimant amount to unfair labour practice and also constitute a breach of contract between the parties by not following the contract between the parties; as such the claimant is entitled to the amount of general damages as claimed, referring to UTC (Nig) Ltd v. Philips[2012] 6 NWLR (Pt. 2012) 136,Ighreriniowo v. SCC (Nig) Ltd[2013] 10 NWLR (Pt. 1361) 136, FBN Plc v. Olaleye[2013] 1 NWLR (Pt. 1334) 102, Julius Berger (Nig) Plc v. Ogundehin[2014] 2 NWLR (Pt. 1391) 3888 (wrong page) and Agi v. Access Bank Plc[2014] 9 NWLR (Pt. 1411) 121; urging the Court to so hold and award damages and cost of solicitor’s fees as claimed having not been cross-examined on same by the defendant. That the singular act of the defendant refusing to pay him early retirement benefit is unjust, which has also caused him a lot of psychological trauma and sleeplessness, something the defendant did not deny in any part of its pleading. That it is in this regard that the claimant submits that the Court should order the defendant to pay the damages claimed by the claimant, referring to section 19(d) of the NIC Act 2006, which permits this Court to make an award of compensation or damages in favour of the claimant. The claimant urged the Court to resolve issue (2) in his favour.
41. Issue (3) is whether the counterclaimant has proved its entitlement to the counterclaim. To the claimant, referring to paragraphs 25 to 27 of his witness statement on oath and paragraphs 4 to 6 of his additiona; statement on oath, the loan contract between him and the defendant is not separate and distinct from the contract of employment, and one is not dependent on the other as the repayment of the loan is tied to the salary. That the repayment was frustrated by the defendant. The claimant referred to clause 12 of Appendix 6, which deals with Loans and Advances to the Staff. To the claimant, it is clear from clause 12 of Appendix 6 that the repayment of the staff welfare loan shall be only from the salary of the employee. That this explains the fact that the loan is a welfare loan to the staff attracting no prevailing commercial interest as alleged by the defendant;it also explains the fact that the loan is not separate and distinct from the contract of employment between the claimant and the defendant. That the letter of employment (Appendix 1) and the Employee Handbook (Appendix 6) give the claimant the right to obtain the loan in the Bank (defendant) and such loan is classified as a staff welfare loan, whether the loan is for a mortgage/housing or car loan; all these loans are classified as staff welfare loans, which is only meant for staff in the employment of the defendant. That Exhibits D1 (the Mortgage Loan Application), D2(the loan approval) and D3-D3(b) – letters of acceptance – did not state that the repayment shall be at the prevailing commercial interest rate even on leaving the services of the defendant. That parties are bound by the terms of the agreement between them.The claimant thus submitted that the loan obtained is a staff welfare loan and cannot be reclassified to be paid with commercial interest rate.That the contract of employment between the parties provide for loan and the rate of interest when a loan is granted to an employee. That Clause 8.12.1 of Appendix 6 does not provide for repayment of staff welfare loan at the prevailing commercial interest rate likewise Exhibits D1-D4 did not show any clause where the repayment of the staff welfare loan will be paid at the commercial interest rate. That the defendant did not place before the Court the statement of account showing the indebtedness of the claimant and the rate of interest contained therein. It shows that the defendant wants to manipulate the statement of account in the light of the alleged indebtedness and rate of charges. This is a concealment of material fact before the Court and as such the Court has no option other than to dismiss the counterclaim for being misleading. That the defendant has not placed any material before the Court to establish that the claimant must pay the welfare loan at the commercial interest rate. That litigation should not have arisen in this case if the defendant had paid the claimant all his entitlements.
42. The claimant continued that he also stated that the loan repayment was frustrated as a result of the defendant’s failure to offer him a place in the North Directorate of the defendant. That despite pleading frustration, he was not cross-examined on it;therefore, the defendant has admitted the evidence of the claimant.That during trial, DW under cross-examination gave testimony that the claimant was paying his loan. That the repayment of the loan stopped when the claimant was compelled to write his early retirement letter. Therefore, the repayment was frustrated by the defendant. That the claimant gave testimony of the frustration in Court, which act of frustration is the premature determination of a contract, referring to Lagos State Govt. v. Toluwase [2013] 1 NWLR (Pt. 1336) 555 and Mazin Eng. Ltd v. Tower Aluminium[1993] 5 NWLR (Pt. 295) 526. Therefore, that the repayment of the loan as contained in the agreement between the two parties herein was frustrated by the singular act of the defendant who compelled the claimant to go on early retirement and it is the same defendant that refused to pay his early retirement benefits because if this has been paid, the defendant would have deducted the outstanding balance of the loan from the benefits and paid the claimant the remaining balance.
43. The defendant had argued that the loan is a stand-alone from the contract of employment. To the claimant, as an alternative argument, even if the loan was a stand-alone from the contract of employment, this Court has no jurisdiction to entertain a dispute on loans and mortgages between any aggrieved parties, urging the Court to grant reliefs (c), (e) and (h) and discountenance arguments proffered by the defence counsel in this regard. The claimant concluded by urging the Court to dismiss the counterclaim in its entirety and enter judgment in his favour.
THE DEFENDANT’S REPLY ON POINTS OF LAW
44. The defendant reacted on points of law. On the claimant’s argument that his claim for N23,229,007.00 was not controverted by the defendant and that this amounts to an admission of this head of claim, which requires no further proof, the defendant reiterated that in paragraph 6 (a)-(o) it joined issues with the claimant on this. That having so joined issues, it behooves the claimant to show proof of the said sum, which he did by tendering Appendix 10. That it is this piece of documentary evidence that the defendant argues is not acceptable proof for the reasons earlier given. That the position of the law is that where a material fact is pleaded and same is either denied or disputed by the other side, the onus of proof clearly rests on him who asserts such a fact to establish the same by evidence, citing ACB Plc v. SIC Odukwe[2005] 3 NWLR (Pt. 911) 67. That it is this proof of Appendix 10 that the defendant submits should carry no weight. That the claimant’s argument, therefore, that the defendant admitted this sum is contrary to the state of pleadings and evidence on record, urging the Court to so hold.
45. Also that the claimant similarly argued that because CW gave evidence on this entitlement, and because the defendant did not controvert or cross-examine CW on this evidence of his early retirement, same is deemed admitted in law, particularly since the “Defendant also did not put forward any document to controvert the Claimant’s entitlement”. To the defendant, it joined issues with the claimant on his averment of fact on this entitlement. That the onus of proof of an averment lies with the person who will fail if no proof (in this case acceptable proof) is proffered, citingsection 133(1) ofthe Evidence Act 2011. Furthermore, that where the Court accepts the defendant’s argument on Appendix 10, the inevitable conclusion will remain that the claimant has not discharged the evidential burden of proof placed on him, and the defendant had no need to place contrary evidence before the Court.In any case, that the correct position of the law is that a claimant should prove his case through credible evidence and not rely on the weakness of the defendant’s case, even where the defendant offered no evidence, relying on Health Care Products (Nig) Ltd v. Bazza [2004] 3 NWLR (Pt. 557) 221 at 228-229. Finally, that Appendix 10 being a documentary piece of evidence is meant to resolve the oral testimony of both sides which joined issues on whether the claimant was entitled to any monetary sum of money other than his just emoluments he admitted the defendant never denied him, relying on Bunge v. Governor of Rivers State [2006] 12 NWLR (Pt. 995) 573 at 629-630;and Appendix 10 having no weight attachable to it, this head of claim remains unproved.
46. The claimant had argued that under section 19 of the National Industrial Court (NIC) Act the Court should grant general damages and solicitor’s fees in the respective sums of N500,000,000.00 and N50,000,000.00 in his favour. To the defendant, it would be contrary to good conscience and justice if section 19 is invoked to make awards to a litigant who has been unable to discharge the burden of proof, on the ground that this Court is a specialized court. That while that may be so, it cannot be the intendment of the draftsman to offer a carte blanche to litigants who fail to prove their cases; otherwise, what will be the essence of this Court being a superior court of record? Indeed, that the invocation of the specialized powers of this Court i.e. as contained in section14 or 19, or any other allied provision, can only be invoked to advance the course of justice to both parties, urging the Court to so hold. Additionally, that despite the provision of section 19, the same Act in section 13 mandatorily expects this Court to concurrently administer law and equity. That this means in essence the principles of proof as laid down in the Evidence Act cannot be discountenanced such that damages will be awarded when no proof is offered. That this would not be justice, urging the Court to so hold.Finally, that theclaimant’s invocation of section 19 is a clear admission that he knew he fell short of the requisite proof with regard to his claims for damages and his solicitor’s fees. The defendant concluded by urging the Court to reject the arguments of the claimant and uphold those of the defendant.
COURT’S DECISION
47. I carefully considered the processes and submissions of the parties in this suit. As noted by the defendant, reliefs (b) and (d) as framed by the claimant are in fact the same, word for word. This said, I must add that the instant case bears close affinity in terms of facts and issues with Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9th October 2018, a case incidentally argued by the same set of counsel in the instant case. It is unfortunate that neither counsel could even when adopting their respective written addresses draw the Court’s attention to the fact that Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd had been decided by this Court and so may be helpful in resolving some of the issues raised in the instant case. I acknowledge that counsel in the instant case filed their respective written addresses long before judgment in Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd was read. Yet counsel owe the least duty of drawing attention to the fact that judgment has been entered in a sister case when adopting their final written addresses. If both counsel assumed that their silence regarding the judgment in Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd will make the said judgment escape this Court, then they must have assumed wrongly.
48. The case of the claimant is that the defendant forced an early retirement on him; and then declined to pay all the benefits due to him under clause 8.12.1 of the Employee Handbook (Appendix 6). To the claimant, his case is not about his emolument but for payment of the early retirement benefits due to him as at the time the defendant forced and compelled him to write Appendix 5. A number of issues arise here. For one, the defendant argued that the claimant did not exhibit his contract of employment; and so the basis of his action in terms of the terms and conditions of his employment is nonexistent. Secondly, did the defendant force the claimant to put in his early retirement? If the answer to this question is in the affirmative, is the claimant thereby entitled to any early retirement benefits; and if so, did the claimant prove the quantum of the benefits? The claimant argued that the defendant in forcing an early retirement on him frustrated his repayment of the loan he took from the defendant, which repayment is tied to his salary. The resolution of this last issue would also have a bearing on the resolution of the defendant’s counterclaim.
49. I take the issue of non-exhibition of the contract of employment by the claimant as raised by the defendant. The evidence before the Court is that the claimant worked with MBC International Bank Ltd before its merger with the defendant bank. Upon the said merger, the claimant’s employment vide Appendix 1 dated 15th December 2005 was transferred to the defendant bank with immediate effect. The second, third and fourth paragraphs of Appendix 1 have it thus:
While your employment with FirstBank takes immediate effect, we have defined a transitional period that will end on December 31, 2005. During this period, your employment will be maintained on the current employment terms and conditions of MBC International Bank Limited.
With effect from January 1, 2006, your employment will be subject to FirstBank’s employment terms and conditions of service, as documented in the staff handbook, copy of which will be provided to you. Any amendments of additions thereto from time to time will be advised to you in accordance with the Bank’s policies.
Please find attached your statement of transitional arrangements and entitlements.
A copy of the transitional arrangements is then attached to the letter of transfer of employment to make up Appendix 1.
50. Appendix 6 is the Employee Handbook March 2007. From all indications, Appendixes 1 and 6 make up the contract of employment of the claimant together with the terms and conditions of the contract. By Ladipo v. Chevron (Nig) Ltd [2005] 1 NWLR (Pt. 907) 277 CA, what document contains the terms of contract of employment or service is a question of fact. The Court of Appeal went on that where more than a single document provide for the terms, such documents must be construed jointly in order to have the correct and total account of what the terms of the contract are. That once the terms are ascertained, it becomes mandatory for the Court to ensure that the parties to the contract have enjoyed their freedom of contract. The sanctity of such a contract would only be enforced if questions in respect thereof are resolved by giving effect to the terms contained in the document(s) which constitute the contract. What this case decided, therefore, is that more than one document can constitute the contract of employment. See also Mrs Bessie Udhedhe Ozughalu& anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. In the instant case, I am satisfied, and so find and hold, that Appendixes 1 and 6 constitute the contract of employment of the claimant with the defendant together with the terms and conditions of the said contract.
51. Unfortunately, however, and this is the context in which the defendant raised its objection, Appendixes 1 and 6 do not for instance state what the exact salary and allowances of the claimant are. In paragraph 30 of his statement of facts, as supported by also paragraph 30 of his written statement on oath, the claimant itemized the particulars of his outstanding entitlements due to him at his early retirement age compelled on him by the defendant. In these particulars, the claimant indicated what his salary, cash allowances (monthly, quarterly and annually), benefits, long-term incentives and retirement benefits are. It is this same information that is in Appendix 10 titled, “2010 Pay Structure Breakdown Sheet – Non marketing TCE based on Notch 1”. The source of Appendix 10 is unknown and has no relationship whatsoever with either the claimant or the defendant or even both of them. If the intention of the claimant in exhibiting Appendix 10 is that it serves as proof of the information contained in the respective paragraphs 30 of the statement of facts and sworn deposition of the claimant (indeed paragraph 23 of the statement of facts and paragraph 23 of the sworn deposition of the claimant state it to be), then the claimant got it totally wrong. Appendix 10 is the claimant’s calculation of what he thinks are his entitlements. That Appendix cannot thereby be proof of the said entitlements. I so find and hold. In this sense, Appendix 10 is worthless as proof of the claimant’s entitlements; it thus has no evidential or probative value whatsoever. I so hold. The claimant must rely on something other than Appendix 10 as proof of his entitlements, which by Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39 has to be a reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and the employee.
52. I take it that the particulars in paragraph 30 of the statement of facts are pleadings of the facts contained therein. Unfortunately, they are not facts that are ordinarily proved by the ipse dixit of a claimant. The claim for the sums indicated in paragraph 30 of the statement of facts and claimed as such are claims for special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) must be strictly proved by credible and compelling evidence; they cannot be inferred from the nature of the act complained of, and they do not follow in the ordinary course as is the case with general damages. Appendix 11, the solicitor’s letter of demand dated 22nd April 2016, cannot be proof of the said sums as entitlements to the claimant. Appendix 11 remains what it is, a letter of demand; it is nothing else. I so find and hold. This is the context in which the defendant based its defence against the claim for N23,229,007.00 by the claimant. Even if the claimant establishes that he was forced to retire early, with no satisfactory proof of how the items particularized in paragraph 30 of the statement of facts came about, how is he expecting the Court to grant him the said sum?
53. Reliefs (a) to (e), with reliefs (b) and (d) being the same, word for word, are for declaratory reliefs in terms of the claimant’s case that he was forced to put in his early retirement, which forceful early retirement was, however, rejected by the defendant, and which frustrated the welfare loan between him and the defendant. In determining these reliefs, the first issue calling for resolution is whether the claimant was forced by the defendant to retire. Appendix 5 dated 16th October 2015 is the letter of early retirement written by the claimant to the defendant. In the first paragraph it states: “Subsequent to Management decision through you on the above subject matter, I hereby apply for early retirement as directed effective November 16, 2015”. In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd, this Court held the claimant to have been forced to resign (and hence it amounted to constructive dismissal) where the words used in the later of resignation were: “Further to the request that I should resign, by Management of First Bank of Nigeria Ltd. I hereby tender my letter of resignation”.
54. The additional evidence of the claimant as to his forceful retirement is his ipse dixit to the effect that Ms Barbara Harper verbally informed him to go on early retirement (paragraphs 8 of both the statement of facts and sworn deposition). Also that he got an unexpected call from Mrs Oyinade Kuku asking him to report on 16th October 2015 at Human Capital Management Department (HCMD). He complied and was compelled under duress by Ms Barbara Harper through Oyinade Kuku and Obiomoba Ikhide to tender an early retirement letter immediately. See paragraphs 13 and 14 of both the statement of facts and sworn deposition. The reaction of the defendant to all this is simply that it denies the averments and puts the claimant to the strictest proof. See paragraphs 1 of the statement of defence. In particular response to the claimant’s paragraphs 8, 13 and 14, the defendant in paragraphs 5 and 6 of the statement of defence reacted thus:
(5) The defendant avers that it is not privy to the facts stated in paragraphs 12 and 13 of the Claim and puts the Claimant to the strictest proof thereof. Hence, same are also categorically denied.
(6) In response to paragraphs 8, 9, 10, 11, 14, 15…of the Claim, Defendant avers as follows:
a) The Claimant was never compelled to tender an early retirement letter under duress as the Bank’s policy provides a proper and well laid procedure for exit.
55. Is this sufficient denial on the part of the defendant of the specific averments of the claimant? I do not think so. The claimant was specific in naming Barbara Harper, Oyinade Kuku and Obiomoba Ikhide in his claim that they were instrumental in compelling him to put in his early retirement. The denial expected of the defendant is that none of these persons did what was attributed to each. There is no denial on the part of the defendant as to the meeting alluded to by the claimant. What the defendant effectively did was to make an evasive or general denial. And in law an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See Akandev. Adisa & anor [2012] LPELR-7807(SC), El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359. In the instant case, the defendant’s denial is accordingly no denial at all; if anything, it is an admission that the meeting held and the claimant was asked at the meeting to put in his early retirement. I so find and hold.
56. Even this aside, there is the additional point that the evidence of the claimant could only have been controverted by evidence from Barbara Harper or Oyinade Kuku or Obiomoba Ikhide or all or some of them. None of them was called as a witness by the defendant as Mrs Ademidun Coker, the Employee Corrective Officer of the defendant, is the witness the defendant called to testify for it as DW. The quality of the evidence of DW, therefore, cannot withstand that of the claimant in this regard. See Pastor (Mrs) Abimbola Patricia Yakubu v. Financial Reporting Council of Nigeria & anor unreported Suit No. NICN/LA/673/2013, the judgment of which was delivered on 24th November 2016, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017 and Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018. In these three case law authorities, the quality of the testimony of the claimant was held to far outweigh that of the defence witness given that the respective defence witnesses called were not direct witnesses to the events in issue. In like manner, in the instant case, I find and hold that the evidence of the claimant that he was asked by the named officers of the defendant to proceed on early retirement has not been controverted by the defendant given that none of the dramatis personae was called as a witness to controvert the claimant’s evidence. The claimant’s evidence outweighs that of the defendant in this regard and so I accordingly find and hold for the claimant in that regard.
57. Having held that the claimant was forced to tender his retirement letter, the next questions are whether the claimant is thereby entitled to any early retirement benefits; and if so, whether he proved the quantum of the benefits. The claimant placed great reliance on the Employee Handbook (Appendix 6) in his answers to these two questions, relying predominantly on clause 8.12.1 of the said handbook. Before taking a look at clause 8.12.1, I need to address certain issues raised by the defendant in that regard. The defendant had submitted that Appendix 6 is a collective agreement that applies to all members of staff of the defendant, of different grades of employment as obvious from its contents; andit is not specific as to any single employee’s terms of engagement. After making this submission, the defendant had cited and relied on Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares[2012] 29 NILR (Pt. 84) 329 at 351para. D stating that the case is a decision of this Court. I need to correct the defence counsel here. The fact that the case was reported in Nigerian Labour Law Reports (NLLR), the defence counsel assumed that it must be a decision of this Court. Well, it is not. Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares is a Court of Appeal decision over the decision of the Lagos State High Court. Second, in citing and relying on the case immediately after submitting that Appendix 6 is a collective agreement, the defence counsel thereby intuited that the case supports his submission to that effect. The case is no authority for the proposition that Appendix 6 can be a collective agreement. The defence counsel himself stated that the case held that the document which regulates the relationship between an employer and employee is the service agreement or contract of service, not a collective agreement. Even here, what the defence counsel omitted to state is that the Court of Appeal prefaced its holding with the word, “Generally”. This is what the Court of Appeal actually stated at paragraphs C-D:
Generally, the document which regulates the relationship between an employer and employee is the service agreement or the contract of service and not a collective agreement. But that is not all to it. A collective agreement, standing alone is not binding on an individual employee and the employer unless such a collective agreement is incorporated into the contract of service.
Now, in law, the use of the word “generally” connotes that the rule or proposition is not absolute.
58. Appendix 6 is the Employee Handbook, March 2007. It is structured into numbered paragraphs 1 to 17, and make provisions in respect of the following heads, as its Table of Contents reveal: Welcome To Firstbank; About The Bank; Corporate Structure; Branding & Brand Pillars; Corporate Ethics & culture; Grading Structure; Human Capital Management Vision; Conditions of Employment; Contractual benefits; Special Allowances; Career Prospects; Loans And Advances; Grievance Procedures; Disciplinary Procedures; Other Important Things To Know; Certificate of Compliance; and Acknowledgment. Appendix 6 is an imposition by the Bank on its employees and contains the conditions of service of its employees. In this sense, Appendix 6 is not a collective agreement as the defence counsel submitted since no trade union signed it on behalf of the employees of First Bank. Section 54(1) of the NIC Act 2006, for instance, defines a collective agreement thus:
“collective agreement” means any agreement in writing regarding working conditions and terms of employment concluded between-
(a)an organization of employers or an organization representing employers (or an association of such organization), of the one part, and
(b)an organization of employees or an organization representing employees (or an association of such organizations) of the other part.
Appendix 6 cannot, therefore, by any stretch of imagination be said to be such an agreement since it is an imposition of the defendant on its employees. The defendant’s argument that Appendix 6 is a collective agreement is not only wrong but meant to mislead the Court. I so find and hold.
59. The defendant had also submitted that there is evidence before this Court, admitted by CW under cross-examination, to the effect that prior to when he authored Appendix 5 the defendant never withheld any of his emoluments. To the defendant, this admission by CW puts the lie to his claim for breach of contract because under the master/servant relationship he was never denied any emolument that was his due. There is something illogical with this defence submission. The defence counsel appears to intuit that a breach of contract can only occur when there is failure to pay emoluments; as such, since the defendant did not default in this regard, it cannot be held to have breached the contract of employment between it and the claimant. This logic in the defence counsel’s submission is certainly untenable; if not for anything, the very fact that an employment contract admits of implied terms means that the restrictive logic of the defence counsel’s submission cannot stand. In the words of Amina Audi Wambai, JCA (delivering the leading judgment) in Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA):
In an employer-employee or master-servant relationship, in addition to or to the exclusion of the express terms of the contract, the law imposes certain implied terms into the contract. These implied terms may either be founded on statute, by custom, by practice, public policy or such terms as to ensure that the master does not subjudge the servant to a condition of servitude or slavery or like terms. While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q – D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.
It is my holding, therefore, that there can be breach of the contract of employment even when emoluments are not denied.
60. The defence counsel continued in the same logic when he submitted that because CW testified under cross-examination to the effect that the defendant did not withhold from him any of his emoluments before he authored Appendix 5, the defendant cannot be accused of unfair labour practice within the context of relief (a). The fact that an employer does not default in the payment of emoluments does not signify that all is well with the employer in terms of its labour practices. After all, the phrase labour practices is one that goes beyond merely paying emoluments, covering all practices in the workplace.
61. The defendant’s position is that applying for early retirement, to which sundry benefits would attach, cannot be a given; as it is inconceivable that once a staff elects to retire early, his employer should not have a say in whether or not that staff could leave early. That it should be noted that where a member of staff elects to leave his employment, he would be expected to give adequate notice, or pay in lieu of that notice. That it would not be fair for a staff to elect to retire early and not expect an input, yes or nay, from an employer who would be expected to pay him certain incentives. To the defendant, a decision otherwise, would not be equitable; falling short of the general principles of unfair labour practice. This submission of the defendant is an attempt to turn principle on its head. Labour law had over time recognized the right of an employee to leave the service of an employer unhindered subject only to repayment of any outstanding indebtedness. Yes, the defence counsel may not know, it is indeed inconceivable that an employer should have a say as to whether or not an employee could leave early once the employee elects to retire early. Any attempt to thwart this employee right by an employer is tantamount to forced labour. See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017. In any event, the claimant’s case is that, and as I have already found and held, it was the defendant itself that requested the claimant to put in for early retirement. Having so found and held, how can the defendant turn around and argue that it was the claimant who elected for early retirement? A similar scenario, like I pointed out earlier, was the case in Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9th October 2018 earlier decided by this Court (a case which incidentally was argued by same counsel for each of the parties as in the instant case), and this Court found for the claimant.
62. The categorical statement of the defence counsel that “applying for early retirement, to which sundry benefits would attach, cannot be a given” is one that the defence counsel made without any supporting authority. To the extent that the law recognizes voluntary and compulsory retirement, it is a fact that benefits do attach to voluntary retirement once its requirement or parameters are met. See James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016.
63. The illogicality of the defendant is further evidenced by defence counsel’s submission regarding relief (f) of the claimant, which seeks an order of this Court directing the defendant to “approve and honour the Claimant early retirement letter dated 16th of October 2015 as compelled by the Defendant”. By this relief, the claimant seeks his early retirement approved. What is defence counsel’s reaction?It is that this Court cannot impose a servant on a master. Hear the defence counsel: “…the trite position of every contract of employment is that a servant cannot be imposed on a master. We submit further, with respect, that it is only in cases of employment contracts with statutory flavour that such mandatory orders could be made, and we urge your Lordship to so hold”. Where is the logic of a claimant who is praying to be released only to be net with a defence argument that the same claimant who wants to go cannot be imposed on the defendant? I really do not understand the logic of the defence counsel’s argument here. If what the claimant is asking for in relief (f) was that this Court should order his continued stay as an employee of the defendant, then it would be logical for the defence counsel to urge this Court not to so hold on the ground that it cannot impose him on the defendant. But that is not the thrust of relief (f) – the claimant wants to go, not stay.
64. The defendant’s submission that labour relations is not only about the employee, but also about the employer is no doubt a correct statement of the law. But the further submission that otherwise a time would come where such interpretation would create a situation of “us” against “them” is blind to the reality that labour relations and indeed labour law is actually about “us’ and “them”. However, as against the fear voiced by the defence counsel in his submission that an “us” against “them” situation would defeat as it were the major purport of this new labour jurisprudence i.e. harmony in the work place, I only need to state that that is why this Court was set up to strike the right and appropriate/proper balance. The very essence of an Industrial or Labour or Employment Court was succinctly captured by the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, to the effect that –
The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.
This Court in Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC noted and applied this very essence.
65. The English courts, recently as in Uber B.V. (UBV) & ors v. Yaseen Aslam & ors [2018] EWCA Civ 2748 (19 December 2018), which at paragraph 48 quoted and applied the UK Supreme Court decision in Autoclenz Ltd v. Belcher [2011] UKSC 41; [2011] ICR 1157, noted the fact of industrial or employment judges being industrially informed: “Employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing”; and in paragraph 49 advised “[employment] tribunals to be ‘realistic and worldly wise’ in this type of case when considering whether the terms of a written contract reflect the real terms of the bargain between the parties; and…should take a ‘sensible and robust view of these matters in order to prevent form undermining substance’”. And in Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018, this Court quoted with approval Arturo Bronstein who in International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pp. 1 – 2 said thus:
…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.
I only need to reassure defence counsel that this Court as a specialized Court is one set to do justice, nothing else.
66. Like I pointed out earlier, the claimant relied on clause 8.12.1 of Appendix 6 for his claims. The said clause provides thus:
The compulsory retirement age for every employee is sixty (60) years or 35 years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years of have (sic) served up to 30 years or at his/her discretion or at the discretion of management.
Early retirement benefits:
a. One year total emolument less variable pay (i.e. total guaranteed pay including location and leave allowances/holiday travel allowances). This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. However, any applicant who has less than one year to retire normally will have their incentive payments pre rated.
b. Senior officers who wish to take advantage of the scheme subject to management’s approval will be allowed to go with their status cars. Status cars that are two years old and above will attract a payment of 10% of the purchase price while those cars less than two years old will attract 25% of purchase price.
67. The provision no doubt grants an entitlement as to early retirement, which is one year total less variable pay if the employee is 55 years old or had put in 30 years of service. However, to the extent that clause 8.12.1 states that voluntary retirement of an employee can be at the discretion of management, the defendant in that regard has gone beyond the pale and so has provided an unfair clause; and were the defendant to actin that regard, the act would qualify as a labour practice that is unfair. In James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016, a similar provision was struck down on the ground that it amounted to a labour practice that is unfair. In the words of the Court:
…in the world of work as well as under labour/employment law, voluntary retirement is understood only in terms of the employee making or taking the decision to retire unhindered by the employer. A voluntary retirement is the act of the employee, not the employer’s. So when an employer writes in the conditions of service as the defendant did under clause 15(a) of Exhibit C2, that employer has gone beyond the pale and so has acted unfairly. The act of the employer (the defendant in the instant case) in that regard is accordingly a labour practice that is unfair.
Accordingly, the evidence of DW under cross-examination that everything about clause 8.12.1 is at the discretion of the defendant is an incorrect interpretation of the said clause; and I so hold.
68. In holding that the claimant was compelled to put in his early retirement, and the fact that the claimant is praying this Court as per relief (f) that the early retirement be respected by the defendant, the claimant is entitled to his one year total emolument less variable pay (i.e. total guaranteed pay including location and leave allowances/holiday travel allowances). By Appendix 7, the claimant was born on 7th November 1960. When the claimant wrote Appendix 5, he was three weeks away from being 55 years old. To be specific, he was 54 years, 11 months, 9 days old. By law of arithmetical approximation (where anything from half but less than one is approximated to the next whole number), the claimant was 55 years at the time of writing Appendix 5. I so find and hold. This means that as far as entitlement is concerned, the claimant has proved his case. The only problem is: has the claimant proved the quantum of the entitlement? The claimant as per relief (g) claims for N23,229,007.00 as what is payable to him here. How did the claimant arrive at this sum? He pleaded and gave the particulars of how he arrived at this sum in paragraph 30 of his statement of facts. He merely repeated this in paragraph 30 of his sworn deposition. The claim for N23,229,007.00 is a claim for special damages, which like I indicated earlier must be proved by credible and compelling evidence. NNPC v. Clifco Nigeria Ltd(supra) is emphatic that the fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. By paragraphs 30 of both the statement of facts and sworn deposition of the claimant, the claim for N23,229,007.00 is hinged on what the claimant calls the 2010 pay structure where the basic salary was put at N2,480,419. The sum divided by 12 months gives us approximately a monthly basic salary of N206,701.58. There is, however, Exhibit D1 before the Court. It is the claimant’s mortgage loan application and has the staff loan application form (Form 1) attached. In it, the personal details, monthly take home pay and total existing loan commitment of the claimant is indicated. Form 1 endorsed on 12/01/10 is signed by both the claimant and ED/BDM/HOD/BM of the defendant. The endorsement of the defendant of Form 1 means that the defendant agrees with the information therein. In terms of the monthly take home pay of the claimant, Form 1 has it thus:
Monthly Basic Pay – N71,318.00
Housing Allowance – N94,849.92
Transport – N25,000.00
Utility – N27,779.42
Lunch – N26,143.33
Entertainment Allowance – N27,956.50
Domestic Allowance – N44,998.17
Clothing Allowance – N82,125.00
Education Allowance – N85,312.00
Furniture Allowance – N49,261.33
Location Allowance – N166,696.25
69. Now, given Form 1, it can be seen that what is indicated as the claimant’s monthly basic pay is N71,318.00, which is different from N206,701.58 culled from paragraphs 30 of the statement of facts and deposition of the claimant. I shall accordingly take Form 1 attached to Exhibit D1 as indicating the true salary and allowances of the claimant. I so find and hold. Clause 8.12.1 of Appendix 6 provides the formula for ascertaining the early retirement benefit as “One year total emolument less variable pay (i.e. total guaranteed pay including location and leave allowances/holiday travel allowances)” i.e. one year total emolument less variable pay. Variable pay is any pay that is not static but varies from time to time or from instance to instance. Clause 8.12.1 itself gives examples of variable pay, which are location and leave/holiday travel allowances. Of these examples of variable pay, Form 1 included only location allowance. This means that all but location allowance qualify in calculating the claimant’s total emolument. If all the sums minus location allowance are added up, what we have is N534,743.67 as the claimant’s total monthly emolument, which if then multiplied by 12 months, what we get is N6,416,924.04 as his total monthly emolument. This is the sum, not N23,229,007.00, that the claimant is entitled to as early retirement benefit. The other limb of early retirement benefit i.e. “normal entitlements of the eligible staff under the banks existing pension scheme” has not been proved by the claimant in this case. The claimant has not shown to this Court any evidence that he is an eligible staff under the bank’s existing pension scheme; and of course, he said nothing of being in possession of any status car. So my finding and holding is that the claimant is entitled to N6,416,924.04 in terms of relief (g). I so order.
70. The claimant has the additional case that the defendant in forcing an early retirement on him frustrated his repayment of the loan he took from the defendant, which repayment is tied to his salary. The resolution of this last issue would also have a bearing on the resolution of the defendant’s counterclaim. The claimant is not denying taking a loan from the defendant; although no where in his pleadings did the claimant state how much he took as loan. The argument of the claimant, relying on paragraphs 24 to 27 of his witness statement on oath and paragraphs 4 to 6 of his additional statement on oath, is that the loan contract between him and the defendant is not separate and distinct from the contract of employment, and one is not dependent on the other as the repayment of the loan is tied to the salary. That the repayment was frustrated by the defendant. The claimant referred to clause 12 of Appendix 6, which deals with Loans and Advances to the Staff. The said clause 12 of Appendix 6 provides as follows:
Loans and advances are made to employees at the discretion of management. In granting these, the Bank considers the following:
• The salary of the applicant.
• Existing financial commitments of the applicant within or outside the Bank.
• Previous loans of the applicant and the evidence of repayment.
• Length of service of the applicant.
• The purpose for which the loan is meant.
• Total repayment of loans in anyone month shall not exceed 1/3 of the applicant’s monthly total emolument.
• For the avoidance of doubt, the 1/3 repayment rule covers both staff welfare and commercial/consumer loan facilities.
Any employee granted a loan must authorize the Bank to deduct from his/her monthly salary, the loan repayment amount including arrears.The employee may, at any time, pay additional installments and/or repay the loan in full without penalty. There are special provisions for building loans as spelt out in the table below. Employees wishing to take additional building loan in excess of the limit specified below shall be required to pay interest on excess at the prevailing Treasury Bill rate subject to maximum of 9% per annum. However, an additional building loan can only be granted after five years of the original loan. The employee shall also be required to sufficiently demonstrate his/her ability to service the loan.
71. Throughout the claimant’s pleadings, evidence and submissions, he described the loan as welfare loan. The defendant objected to this description. Clause 12 of Appendix 6 acknowledges that the loans and advances made to staff could be staff welfare or commercial/consumer loans. The last bullet point above stating that “the 1/3 repayment rule covers both staff welfare and commercial/consumer loan facilities” attests to this fact. So the question is: is the loan the claimant took from the defendant a staff welfare loan or a commercial/consumer loan? Exhibit D2 dated 18th May 2010 addressed to the claimant wherein the defendant approved the claimant’s loan describes the loan as “Staff Building Loan of N8,500,000.00”. In accepting the loan vide Exhibit D3 dated 19th May 2010, the claimant described the loan as “Mortgage Loan”. The same description runs through Exhibits D3(a) and D3(b). Exhibit D4 is the tripartite legal mortgage regarding the loan the claimant took. Both Exhibits D2 and D4 put the interest rate at 5%. By Exhibit D2, the condition as to repayment is imposed by the defendant thus: “Repayment will be spread over a period of 132 months at the rate of N64,393.94 per month at 5% interest rate per annum or outstanding balance to be liquidated on leaving the services of the bank”. The fact that the loan was granted at 5% interest rate per annum and the fact that the submission of the defendant that the loan would be converted to a commercial loan, at the commercial interest rate, implies that the loan itself was a staff welfare loan (an employment loan), not a commercial/consumer loan, when it was granted the claimant. I so find and hold.
72. I held earlier that the defendant compelled the claimant to tender his letter of early retirement. In compelling the claimant to retire, the defendant cannot now turn around and be claiming the repayment of the loan at commercial interest. The argument of the claimant that his repayment of the loan he took from the defendant was frustrated by the defendant forcing him to retire brings to the fore Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329, where the Supreme Court laid down the yardstick for determining whether the repayment of a loan taken by an employee is frustrated simply because the employee’s employment was terminated by the employer especially where the repayment of the loan is tied to the employee’s salary. In the sister case of Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd I took time especially at paragraphs 90 to 92 to consider and analyze the import of Lewis especially in the context of employment loans. I then held at paragraph 92 thus:“…in finding for the claimant in terms of constructive dismissal, the context of the case demands that the defendant not be allowed to benefit from its wrongdoing”. I adopt in toto the reasoning on this point made in Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd. This being so, the fact that the defendant in the instant case compelled the claimant to retire, it cannot benefit from its wrongdoing. It cannot thus convert the loan in issue to one payable with commercial rate interest. I so find and hold.
73. Given all that has been said, findings and holdings made and the reasons proffered in their regards, I accordingly find for the claimant in terms of reliefs (a), (b), (c), (e) and (f), which are hereby granted. Relief (g) succeeds in part as already granted.
74. Relief (h) is a prayer for perpetual injunction restraining the defendant from disposing or interfering with the named property of the claimant. There is no pleading in the claimant’s statement of facts relating to the said claimant’s property situate, lying and being at Plot 7, Block I-J, Voera Estate off Lagos Ibadan Expressway, Arepo, Ogun State for which relief (h) is sought. Ajagbe & ors v. Oyekola & anor [2013] LPELR-19840(CA) held that where a party claims a relief of perpetual injunction, it is sufficient if the evidence led shows a right or interest the court could protect by that order and an actual, threatened or likely infringement or violation of that right or interest by the other party; and that the court can, and should, grant the order of injunction as a consequential relief to protect the right of the party adjudged to be in possession of property, even where it is not claimed by the claimant. Though the claimant proved his case, and ordinarily the injunctive relief should be available, there is nothing before the Court to show that the property named in relief (h) has anything to do with the loan he took from the defendant. The property described in the schedule in Exhibit D4 is not the same with that described in relief (h). The schedule talks of “Block J, Plot 2, Orange Estate, off Lagos/Ibadan Expressway, Arepo Village, Obafemi Owoade Local Government Area…” There is no evidence before the Court to show that these two properties are one and the same. Relief (h) cannot thus be granted. It fails and so is hereby dismissed.
75. Relief (i) is for N500 Million as damages for the impairment of the claimant’s health due to the claimant’s employment with the defendant, aggravated further as a result of forcing the claimant to write his letter of early retirement when he had no intention of doing so. Relative to relief (f), there is something illogical with relief (i). The claimant cannot be asking that his early retirement be approved and turn around and be claiming that he be compensated because he thereby had impairment of health. More importantly, beyond relief (i) itself, there is no pleading whatsoever as to health impairment of the claimant, upon which relief (i) is based. The law is that the paragraph setting out the reliefs claimed in a statement of facts or claim does not amount to facts pleaded. The Supreme Court made this clarification in Ishola v. UBN [2005] 6 MJSC 34 at 49 – 50, G-G in clear terms as follows:
The operating words of paragraph 29 of the Amended Statement of Claim of the Appellant at the trial reads:
‘WHEREFORE the Plaintiff claims as follows against the Defendant’
The claims are then set out from (i) – (ix) in separate paragraphs. These are not facts pleaded but claims which constitute the reliefs which the Appellant is praying the court for at the end of the trial. Paragraphs 29(1) is one of the prayers or reliefs asked for…The whole paragraph 29 is not and cannot constitute any pleading at all as no valid order can be made under it without any facts contained in the pleadings in support of it and upon which evidence can be led…
For these reasons, relief (i) cannot be granted. It fails and so is hereby dismissed.
76. Relief (j) is for N50 Million as cost of solicitor’s fees. Like relief (i), there is no pleading regarding this relief; and so it cannot be granted. It fails and is hereby dismissed. General cost, by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), is entirely at the discretion of the court, though costs follow the event in litigation.
77. I now turn to the defendant’s counterclaim under which the defendant is praying for N10,725,750.23 being the sum owed by the claimant to the defendant with respect to the loan facility extended to him. Under cross-examination, the claimant testified acknowledging that he took a loan from the defendant and that he is still owing the Bank on the loan. He also acknowledged utilizing the loan. In fact he was quite emphatic that he is not disputing the fact that he took loan from the Bank. Exhibits D1, D2, D3, D3(a), D3(b) and D4 are all documents relating to the loan. The fact of the loan is accordingly not in dispute. What is disputed is the sum left unpaid of the loan.
78. In Appendix 11 dated 22nd April 2016, a letter from the claimant’s solicitor to the Managing Director of the defendant, the claimant’s solicitor at the last paragraph of the second lag wrote thus:
Your Letter of demand for the sum of N10,725,750.23…has also been shown to us by our Client. Our Client has only stalled with the payment because he is unemployed and has no other means of paying the loan. You cannot convert the indebtedness to Commercial Loan from welfare. This is because our Client did not retire voluntarily and as at now does not know his status with the Bank, he cannot therefore be compelled to repay the loan within the time frame stipulated in your letter.
Appendix 11 accordingly acknowledged that there is a letter of demand sent to the claimant by the defendant although it is not before the Court. Also, the claimant’s solicitor in Appendix 11 did not dispute the sum of N10,725,750.23 he said was claimed by the defendant. And so in stating that “Our Client has only stalled with the payment because he is unemployed and has no other means of paying the loan. You cannot convert the indebtedness to Commercial Loan from welfare” and “…he cannot therefore be compelled to repay the loan within the time frame stipulated in your letter”, Appendix 11 is an admission (one against interest) of the loan and the fact that what is repayable of the said loan is the N10,725,750.23. I so find and hold.
79. A number of case law authorities support the Court’s finding and holding. InOlale v. Ekwelendu [1989] 4 NWLR (Pt. 115) 327, the plaintiff’s solicitor had written a letter to the defendant describing the plaintiff as the owner and landlord of the property in question. The defendant’s reply letter through his solicitor did not challenge that assertion; nor did he lay claim to the property or disclose the root of his title. It was held inter alia that the plaintiff is the owner of the building. There was nothing from the defendant to warrant a contrary conclusion, the defendant’s letter deemed to be an admission (one against interest) on his part. The second case isIneh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, where this Court held that the fact that the claimant’s solicitor’s letter to the defendant referred to the defendant’s Employee’s Handbook, was sufficient proof that the Handbook was known to the claimant and so applies to his case. And lastly, in Adekunle v. Rockview Hotel Ltd [2004] 1 NWLR (Pt. 853) 161, a letter written by the appellant to the Manager of Apapa Branch of Arab Bank directed the Bank to pay the respondent the exact amount that is the subject of the claim and thereby debit his account. This letter was held to establish (prove) the indebtedness of the appellant to the respondent. I am accordingly satisfied that the defendant has established its counterclaim for the sum of N10,725,750.23 in terms of counterclaim (a). I so hold.
80. Counterclaim (b) is for pre-judgment interest. This Court by Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC does not grant pre-judgment interest. Counterclaim (b) cannot thus be granted. It fails and so is hereby dismissed.
81. Counterclaim (c) is for cost of the action. I indicated earlier that cost is at the discretion of the Court. See NNPC v. Clifco Nigeria Ltd (supra).
82. As would be seen, I held that the claimant succeeded in part and only for N6,416,924.04 as far as relief (g) is concerned. And I also held that counterclaim (a) of the defendant for the sum of N10,725,750.23 succeeds. The whole idea behind the claimant’s argument as to his early retirement being approved and his early retirement benefit paid is so that he can use same to offset the loan he look from the defendant. It is thus my present order that the claimant shall pay over to the defendant the sum of N10,725,750.23 less the early retirement benefit of N6,416,924.04 i.e. N4,308,826.19 only.
83. Accordingly, for the avoidance of doubt and for all the reasons given, both parties succeed in part in terms of their respective claims. In those regard, I declare and order as follows:
(1) It is declared that the refusal of the claimant’s early retirement by the defendant amounts to a breach of the contract of employment between both parties.
(2) It is declared that the action of the defendant in forcing and/or compelling the claimant to write an early retirement letter dated 16th October 2015, which the defendant refused to honour, amounts to unfair labour practice and it is, therefore, unfair and unlawful.
(3) It is declared that the action of the defendant in forcing and/or compelling the claimant to write early retirement letter dated 16th October 2015 has frustrated the repayment of the welfare loan between the claimant and the defendant.
(4) It is declared that the defendant cannot convert the claimant’s welfare loan to a commercial loan and run at the prevailing commercial interest while the claimant is still challenging the wrongful rejection of his early retirement.
(5) The defendant shall forthwith approve and honour the claimant’s early retirement letter dated 16th of October 2015 as compelled by the defendant.
(6) The defendant shall pay the sum of N6,416,924.04 (Six Million, Four Hundred and Sixteen Thousand, Nine Hundred and Twenty-Four Naira, Four Kobo) being the outstanding amount due and payable to the claimant by the defendant upon the claimant’s early retirement age.
(7) The claimant shall pay to the defendant the sum of N10,725,750.23 (Ten Million, Seven Hundred and Twenty-Five Thousand, Seven Hundred and Fifty Naira and Twenty-Three Kobo) owed to the defendant with respect to the loan facility extended to him.
(8) To satisfy orders (6) and (7) above, and as already ordered, the claimant shall within 30 days of this judgment pay to the defendant the sum of N4,308,826.19 (Four Million, Three Hundred and Eight Thousand, Eight Hundred and Twenty-Six Naira, Nineteen Kobo) only being the subtraction of the sum in order (6) from that in order (7).
84. Judgement is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
