Amaka Paula Aideloje -VS- GTL Registrars Limited

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: JULY 16, 2018

SUIT NO. NICN/LA/124/2016

BETWEEN

Amaka Paula Aideloje – Claimant

AND

GTL Registrars Limited – Defendant

REPRESENTATION

V. C. Okonu,, for the claimant.

Olawumi Alajiki, with Charles Akindileni, for the defendant.

JUDGMENT

1. The claimants had filed this suit on 25th February 2016 vide a complaint with the accompanying originating processes praying for the following reliefs:

(1) An order directing the defendant to pay to the claimant the sum of N1,631,582.52 being her unpaid terminal benefit upon forcing her to resign from the defendant’s employment.

(2) Interest on the said sum of N1,631,582,52 at the rate of 21% per annum from the 1st day of June 2015 until is finally liquidated.

2. In reaction, the defendant entered appearance and filed its defence processes.

3. At the trial, the claimant testified for herself as CW and tendered Exhibits C1 to C8, while the defendant called Temiloluwa Ogunremi, a Human Resource Personnel of the defendant, who testified as DW and tendered Exhibits D1 to D4. At the close of trial, the defendant filed its final written address on 23rd February 2018, while the claimant’s was filed on 17th April 2018. The defendant’s reply on points of law was filed on 2nd May 2018.

THE CASE OF THE CLAIMANT

4. The claimant, formerly known as Amaka Paula Umogo was employed by the defendant formerly known as Union Registrars Limited on 16th July 2009 as a Registration Executive. The claimant’s employment was confirmed on 1st July 2010 by the defendant. By a letter dated 31st October 2014, the defendant purportedly offered employment to the claimant and confirmed the purported employment on 20th May 2015. Few days after the confirmation of the purported employment, the claimant received a mail to attend a meeting with top management staff at the defendant’s Head office. To the claimant, she was forced to tender a resignation letter at the meeting. That she accordingly tendered a forced letter of employment on the 1st of June 2015. That she was offered the sum of N393,112.31 by the defendant as her entitlement. She then wrote a letter on 11th August 2015 complaining about this and demanded for the full payment of her entitlements. The defendant did not respond to the said letter. Her counsel also wrote a letter to the defendant dated 17th September 2015. The defendant responded to the letter but did not address the substance of the claimant’s solicitor’s letter. Till now, the defendant has not paid her severance benefit despite several demands for same, here this action.

THE CASE OF THE DEFENDANT

5. The summary of the defendant’s case is that the claimant resigned from its employment voluntarily and was not forced to do as alleged. The defendant also states that the claimant is not entitled to payment of gratuity which forms a substantial part of her claims and that the defendant had issued a cheque to the claimant for the amount due to her as terminal benefits but the claimant rejected same.

THE SUBMISSIONS OF THE DEFENDANT

6. The defendant submitted a sole issue for determination, namely: whether the claimant has proved her case sufficiently on the preponderance of evidence before this Court having regards to the pleadings, quality of evidence and/or admissions made in support of the claimant’s case. To the defendant it is settled that the contract of employment is the foundation upon which cases involving the rights and obligations between an employer and employee are determined, citing Katto v. CBN [1999] 6 NWLR (Pt. 607), 37, Strabag v. Adeyefa [2001] 15 NWLR (Pt. 735) 1 and Ifeta v. Shell Petroleum Development Co. [2006] 7 MJSC, 121 at 133. That the claimant can only succeed with respect to claims which have its root in the contract of employment and is not entitled to any claims outside the provisions of the contract of employment. That in proving the claims in this suit, the claimant who was herself the sole witness stated in paragraphs 11 and 12 of her witness statement on oath that she was “forced” to tender her resignation letter. That the Black’s Law Dictionary (sixth edition) defines the word “force” to mean “power, violence, compulsion or constraint exerted upon or against a person or thing”. That the claimant’s allegation on the face of her pleadings that she was “forced” to tender her resignation letter suggests that violence was applied on her to obtain her resignation. That under cross-examination, however, in response to direct questions posed by counsel to the defendant, the claimant responded that neither was a gun pointed at her, nor was a sword placed on her neck to obtain the purported forced resignation. That the claimant also failed to give any evidence in relation to the purported forced resignation. She did not describe or give a narrative of the nature of force purportedly applied by the defendant which prompted her resignation as alleged. That in establishing such an allegation, the onus is on the claimant to give credible evidence of the manner of force which the defendant subjected her to but she failed to do so. That the mere averment in her pleadings and testimony in her witness statement on oath that she was forced to resign is deficient and cannot serve as conclusive proof of such allegation in the face of the denial of such fact by the defendant, urging the Court to so hold. The defendant then submitted that the claimant has by this unsustainable allegation given false testimony in this case. That there is nothing to support or justify her testimony that she was forced to resign. That her testimony fell like a pack of cards under cross-examination when she failed to explain how she was forced to resign thus making not to be a witness of truth. That a witness is not entitled to credibility in cases where the witness himself or another witness gives a testimony which is materially different from previous testimony of that witness, citing Ayanwale v. Atanda [1988] 1 NWLR (Pt. 68) 22 at 35.

7. The defendant went on that the position of the law is that the onus of proof lies with the party who alleges the existence of those facts which he alleges, citing Isokwu Oil Marketing Co. v. BON Ltd [2002] 11 NWLR (Pt. 777) 163 at 197 – 198 and Ajuwon v. Akanni [1993] 9 NWLR (Pt. 316) 182 at 200. That where a plaintiff fails to establish the liability of a defendant, such a plaintiff would not be entitled to award of damages and the claim should be dismissed, citing Babington Ashaye v. EMAG Ent. (Nig) Ltd [2011] 10 NWLR (Pt. 1256), 479 and Njikonye v. MTN Nigeria Communications Ltd [2008] 9 NWLR (Pt. 1092) 339.

8. In its defence on the other hand, that the defendant’s witness stated that the defendant offered the claimant the amount that was due to her as terminal benefit but the claimant rejected same. That the defendant witness stated in paragraph 12 of his witness statement on oath that the claimant’s letter of resignation (Exhibit C5) took effect on the date of the said letter being 1st June 2015. That the contract of employment between the claimant and the defendant (Exhibit C3) on the other hand provides that after confirmation of the employment of the claimant, either party shall give the other one (1) month’s notice to terminate the employment or pay one month basic salary in lieu of such notice (under the heading “Determination of Employment”). That as shown on the face of Exhibit C3, the claimant did not give the required notice and is, therefore, liable to pay one (1) month salary to the defendant in lieu of notice.

9. Furthermore, that the defendant witness stated in paragraph 14 of his witness statement on oath that the defendant pro-rated the claimant’s leave allowance (which she already collected before the date of her resignation) and 13th month salary. The defendant urged the Court to take note that the leave allowance and 13th month salary are annual payments payable to an employee on the premise that such employee would remain in the employment and serve out the period for which the allowances are earned. In the instant case, that the claimant had already received the leave allowance due to her for the whole year prior to her resignation on 1st June Z015. That having not remained in the employment for the whole year, the claimant has not earned the leave allowance for the whole year and the defendant is entitled to recover the outstanding portion of the leave allowance for the period which the claimant did not earn same. That the Blacks Law Dictionary (sixth edition) defines “earn” to mean “to acquire by labour, service or performance or to do that which entitles one to a reward”. That since the claimant resigned her employment with the defendant on 1st June 2015, she did not work for and fully earn the annual leave allowance paid to her before her resignation, and the defendant is, therefore, entitled to recover the unearned portion of the leave allowance. The defendant invited the Court to take note that the calculation shown in paragraph 15 of the statement of defence and paragraph 13 of the defendant’s witness statement on oath contains the claimant’s 2014 profit share of N435,420.35 and 13th month salary (for January – May 2015) in the sum of N36,750.00 (which is in excess of the sum of N36,720.00 claimed by the claimant). That a fact admitted need no further proof, urging the Court to so hold.

10. With respect to the claim for gratuity, that neither the contract of employment between the claimant and Union Registrars Limited (Exhibit C1) nor the contract of employment between the claimant and the defendant herein (Exhibit C3) made provision for the payment of gratuity to the claimant. That since there was no provision for gratuity in the contracts of employment relied on by the claimant, the claim is bound to fail, urging the Court to so hold. Furthermore, in its defence on the claim for gratuity by the claimant, the defendant stated that the Board of Directors of the erstwhile Union Registrars Limited through a company resolution established a gratuity policy in 2011. Exhibit D2 is an extract of the minutes of the meeting of the Board of Union Registrars Limited of 7th April 2011 wherein the resolution was passed. That a thorough perusal of Exhibit D2 shows that the Board of Union Registrars Limited set down the criteria for the implementation of the policy. It provided that only employees who are in the employment of the company for a period of five (5) years from the date of the policy shall be entitled to benefit from the policy.

11. That Exhibit D1 is the claimant’s letter of employment with Union Registrars Limited, is dated l6th July 2009. That the claimant accepted the offer of employment on 16th September 2009 as shown on the same document. That applying the elementary principles of contract to this case, the contract of employment between the claimant and Union Registrars Limited came into effect on 16th September 2009 when the claimant accepted the offer and an agreement (consensus ad edem) was formed only on that date. Accordingly, that the defendant also tendered Exhibit D3 which is another extract of the meeting of the Board of Directors of Union Registrars held on 27th June 2014 wherein the Board abolished all policies of the company including the gratuity policy with effect from 30th June 2014. That the defendant witness stated in particular in paragraph 9 of his statement on oath that the gratuity policy was abolished as a result of the application of the Pension Reform Act. To the defendant, since the claimant’s employment with the erstwhile Union Registrars Limited commenced on 16th September 2009, the claimant did not qualify for gratuity as she had not been in the employment of Union Registrars Limited for five (5) years on 30th June 2014 when the gratuity policy was abolished. The defendant, therefore, submitted that since the claimant’s contract of employment did not provide for payment of gratuity, and since she was not entitled to same under the company’s policy established by the Board before its abolition, the claimant’s claim for gratuity must fail urging the Court to so hold.

12. In any event, that by Oyeneyin v. Akinkugbe [2001] 1 NWLR (Pt. 693) 40 at 56 a plaintiff has to rely on the strength of his case and not on the weakness of the defence to succeed, citing also Mogaji v. Cadbury (Nig) Ltd [1985] 2 NWLR (Pt. 7) 393, Odukwe v. Ogunbiyi [1998] 8 NWLR (Pt. 561) 339, AG, Rivers State v. AG, Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 and AG, Oyo State v. Fairlakes Hotels (No. 2) [1989] 5 NWLR (Pt. 121) 255. In conclusion, the defendant urged the Court to dismiss the claim of the claimant with substantial cost.

THE SUBMISSIONS OF THE CLAIMANT

13. The claimant also submitted one issue for determination, namely: whether the claimant is entitled to her claims before the Honourable Court. The claimant made it clear that she is not claiming for wrongful termination of her employment. That she is only claiming her just entitlement after meritoriously serving the defendant for almost six years. That though she asserted in her pleadings and throughout the proceedings that she was forced along with 4 other staff of the defendant to tender her letter of resignation by members of the management of the company, she is well informed that in an employment without statutory flavour, an employer can sack an employee for good reason, for bad reason, or for no reason at all, citing Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577. That her claim is for an order directing the defendant to pay to her the total sum of N2,619,117.57 being unpaid terminal benefits upon forcing her to resign from the defendant’s employment along with interest on that amount. The claimant went on to reiterate the facts of her case as indicated earlier adding only that her total remuneration according to her employment letter dated 16th July 2009 (Exhibit C1) was N2,075,893.32 per annum. Then claimant continued that the defendant changed its name from Union Registrars Ltd to GTL Registrars Ltd sometimes in 2014 when Union Bank Plc divested its interest from Union Registrars. That after the change of name, the defendant gave her a new letter of employment (Exhibit C3). However, that there is no evidence before the Court that Union Registrars Ltd was ever wound up or that the claimant was disengaged or that severance benefit was paid to her. She then referred to Afolabi & ors v. Western Steel Works [2013] LPELR–9340(SC), where it was held thus:

The acquisition of shares in companies and the takeover of another company by another are matters regulated by the Companies and Allied Matters Act. The transfer of shares and allotment of shares of a limited liability company must be registered and appropriate papers filed. It is not just a question of removing one company’s sign-board and replacing it with another.

14. Pertaining to the issue of change of name of a company, the claimant referred to section 31(6) of the Companies and Allied Matters Act (CAMA), which provides that: “A change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company…”, citing further Nagarta Integrated Farms Ltd v. Ibrahim Mudi Nagoda & ors [2016] LPELR-40266 (C.A). That the change of name of the defendant from Union Registrars Ltd to GTL Registrars Ltd does not change the defendant’s obligation to the claimant, Exhibits C3 and C4 being at best mere notices of increase in salary, not meant to create any new employment between the defendant and the claimant. Her case thus is that she was forced to resign her employment with the defendant, consequent upon which she submitted Exhibit C5 and that the defendant’s witness did not deny the meeting of 29th May 2015 in his statement on oath and he stated under cross-examination that he was at the meeting. That in Exhibit C5 (the claimant’s letter of resignation) the claimant specifically stated that she was asked to resign as a result of her ill health and stated it again in Exhibit C6 that the defendant’s management forced her to resign. The defendant did not respond to these exhibits. The claimant then submitted that her resignation was a forced resignation. That the Black’s Law Dictionary (Ninth Edition) defines constructive force as: “threats and intimidation to gain control or prevent resistance”. The same dictionary defines coercion as: “conduct that constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it”. That by Onuminya v. Access Bank Plc [2014] LPELR-22461(CA), a forced resignation is in fact a dismissal. The claimant then reiterated that she was invited to the defendant’s head office for a meeting on the 29th May 2015, which was a public holiday, and at the meeting she was asked to resign. She tendered Exhibit C5, her resignation letter, which stated clearly that the letter was written on the instruction of the management of the defendant. That the defendant, apart from general traverse in paragraphs 12 and 13 of the statement of defence, did not contest the assertion at all. To her, this should be deemed an admission, citing Lewis & Peat v. Akhimien [1976] 7 SC 167, Ibeanu v. Ogbeide [1999] 9SCNJ 77 and Akintola v. Solano [1986] 2 NWLR 598.

15. The claimant averred that she was invited to the defendant’s office where she was given a cheque for the sum of N393,112.31 and was also asked to sign off on it as full and final satisfaction of her entitlements from the defendant. That even though the defendant asserted in paragraph 17 of the Statement of Defence that “the Claimant was duly informed of the basis for the calculation of the amount due to her”, the defendant did not state how it informed the claimant. The claimant asserted that the total sum of N2,619,117.57 is due to her. That from the whole evidence before the Court, the defendant played a trick on the claimant who had been working with the defendant before it changed its name, purportedly re-employed her so that she would not be paid off as at the time Union Bank divested its shares in the defendant and her employment would appear to be a fresh employment and waited after the dust had settled to surreptitiously terminate the claimant’s employment by forcing her to resign without paying her entitlements. That this is in itself unfair labour practice.

16. To the claimant, the defendant’s contention is that the defendant’s policy as to gratuity payment was commenced in the year 2011 and was cancelled on the 30th June 2014. The defendant tendered Exhibits D2 and D3 respectively. At page 778 of Exhibit D2, the following was stated as the basis of establishing staff gratuity: “Board in line with standard practice in the industry and to boost Staff loyalty and also to encourage them to be dedicated to their job approved the implementation of Staff gratuity as follows…” To the claimant, that excerpt shows that there is a board approved program of gratuity payment to staff and also that it was industry standard. That there is nothing before the Court to show that industry standard has changed even as at the time of the trial in this suit. That the industry standard upon which Staff Gratuity was established by the defendant has not changed.

17. The defendant also relied on Exhibit D3 as the basis of its assertion in paragraph 8 of the statement of defence that the Board of Directors of the defendant resolved that all existing policies of the company including but not limited to the staff gratuity scheme be abolished with effect from 30th June 2014. To the claimant, nothing can be further from the truth. That this is what Exhibit D3 says at page 1229: “Meanwhile the Board has abolished all policies of the Company with effect from 30 June, 2014”. That this quoted excerpt did not include the phrase “including but not limited to the staff gratuity scheme” which was added in paragraph 8 of the statement of defence. That it is trite law that oral evidence will not be allowed to alter the content of a document, citing IMNL v. Pegofor Industries Ltd [2005] LPELR-1525(SC) and Colonial Development Board v. Kamson [1955] 21 NLR 75. That the defendant added the expression because even they themselves know that the statement in Exhibit D3 quoted above is vague and meaningless. For instance, “honesty” is a policy. The defendant could possibly not have abolished it as one of its policies. There are other policies of the company which are natural consequences of its existence and doing business. The claimant’s argument is that the defendant could not have been without policy at all, for one moment. That the gratuity arrangement of the defendant is not a mere policy, it is a “scheme”, which was established by the defendant’s Board Resolution. If the scheme was to be abolished, it must be clearly, specifically and unambiguously abolished by another Board Resolution. To the claimant, Exhibit D3 did not abolish the gratuity scheme of the defendant.

18. The defendant had also relied on Exhibit D4 which is purportedly a circular notifying the staff that the gratuity scheme has been cancelled. To the claimant, the document is undated and unsigned. That in the eyes of the law, an undated and unsigned document has no probative or evidential value, citing Garuba v. KICC [2005] 5 NWLR (Pt. 917) 160, Omega Bank Plc v. OBC Ltd [2005] 8 NWLR (Pt. 928) 547) and Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047. The claimant thus submitted that the document labelled Exhibit D4 titled “STAFF GRATUITY SCHEME” has no probative value, and is nothing but a piece of worthless document whose authorship cannot be ascertained.

19. The claimant went on that the defendant’s contention that the claimant ought to have given one month’s notice of her resignation as provided under the contract of employment is not correct. That her resignation was an act of coercion or force on the part of the defendant, hence dispensing with the need to comply with the required notice as stipulated in the employment contract. That the Black’s Law Dictionary (Eight Edition) defines coercion as: “conduct that constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it”. It also defines force as: “threats and intimidation to gain control or prevent resistance”. That the meeting held on 29th May 2015 at the defendant’s Head office, where the claimant was forced to tender her resignation on health grounds left her with no option than to comply with the economically powerful and compelling might of the defendant, hence coming within the definition of coercion and force as defined by the Black’s Law Dictionary. Therefore, that the termination in this instance can be construed to mean retirement with the accruable entitlements attached, because the termination was not as a result of breach of contract on the claimant’s part, citing Christian Iloabachie v. Prof Dotun Philips & anor [2002] 14 NWLR (Pt. 787) 264, which held thus:

The word termination coveys’ two meanings depending on the context in which it is used. When it is used as a result of some misconduct of an employee, it becomes a form of punishment. But where, it is used to denote the normal cessation of the contractual relationship of an employer and employee with entitlement to the benefits which accrued under the contract, it is synonymous with the word retirement.

That the claimant is entitled to the terminal benefits she is claiming, which is a lump sum of money awarded in a contract at the expiration of employment. That she has earned it; it is accruable to her when her services are no longer required.

20. On the claim for salary in lieu of notice for the sum of N213,951.82, the claimant submitted that there is no fuss about that since it is clearly stated in the defendant’s confirmation letter of employment to the claimant dated 20th May 2015 that her annual salary is N2,761,464.81 and that amount divided by 12 months makes the claimant’s monthly salary.

21. On the claim for 13th month and profit share for 2014, the claimant submitted that she is entitled to the sum of N36,720.00 as 13th month salary for five months that she worked for the defendant in year 2015. That in Exhibit C4, this was specifically stated to be N88,200. When this is divided by 12 months, it is equivalent of N7,350 per month. If this is multiplied by 5 months, the total due to her is N36,720. On the claimant’s profit share, that the defendant admitted in paragraph 15 of the statement of defence that there is a bonus due to her for 2014 to the tune of N435,420.35. This is particularized by the claimant as profit share for 2014 in paragraph 20 of the statement of facts.

22. On the claim for the payment of gratuity in the sum of N1,933,025.40, the claimant submitted that the essence of gratuity was given judicial stamp in Intels (Nig.) Ltd & ors v. Williams [2013] FWLR (Pt. 675) 376, which stated that gratuity forms part of accruable or deemed accruable terminal benefits payable to an employee whose services are no longer required or retired, urging the Court to hold that the claimant is entitled to the said amount.

23. On the interest on the sum of N2,619,117.57, the claimant submitted that the Court has the power to award interest, citing West Construction Co. Ltd v. Batalha [2006} 4 SC (Pt. 1) 88; and Order 47 Rule 7 of the National Industrial Court Rules 2017, which gives this Court power to award interest at a rate not less than 10%. That the claimant not only claimed interest at a rate of 21% per annum, she also led evidence to the fact that the defendant is a commercial organization and has been making profit from non-payment of her entitlements since June 2015, referring to paragraph 22 of the statement of facts. That from the forgoing, the claims of the claimant are justified and she is entitled to them.

24. Thereafter, the claimant went into discussing the duty of the defendant to pay the claimant wages. In the process, the claimant alluded and addressed section 7(6) of the National Industrial Court (NIC) Act 2006, which mandates the Court to have due regard to good or international best practice in labour or industrial relations; section 254C of the 1999 Constitution, which confers jurisdiction on this Court over unfair labour practice or international best practices in labour; Article 128 of the International Labour Organization (ILO) Protection of Wages Convention 1949 (No. 95); and Article 12 of the ILO Termination of Employment Convention, 1982 (No. 198). How all of this relates to terminal benefits in the sum of N1,631,582.52, which is the principal claim of the claimant is something that this Court cannot fathom. All the claimant did was in her conclusion submit that this Court, by the combined provisions of section 254C of the 1999 Constitution and ILO Conventions 95 and 198, has the power to grant her claim to conform with international best practice. How her claim conforms to international best practice, she was silent on.

25. In what she termed reply to the argument of the defendant, the claimant submitted that the defendant alleged that there are contradictions in paragraphs 11 and 12 of the witness statement on oath and testimony of the claimant. To the claimant, there are no contradictions in the said paragraphs and her testimony under cross-examination. That the defendant further stated that the claimant testified under cross-examination that neither was a gun nor a sword placed on her neck to obtain the forced resignation. That this line of argument by the defendant is warped. For one thing, the claimant never claimed that anyone placed gun or sword on her neck. The argument of the defendant is a narrow approach at the definition of the word “force”. That the broader definition and application of the word “force” has been copiously argued earlier.

26. The claimant continued that Ayanwale v. Atanda [1988] 1 NWLR (Pt. 68) cited by the defendant’s counsel is not relevant to this case. That the defendant in paragraph 12 of the statement of defence denied the averments in paragraphs 9, 10 and 11 of the statement of facts to the effect that there was a meeting on 29th May 2015 at the Head Office of the defendant where she was asked to tender her resignation on health grounds. However, that the defendant’s witness confirmed that he was present at the meeting. That in Exhibit C56, which is the claimant’s letter of resignation, and Exhibit C6, the claimant stated that it was the management that asked her to resign on account of ill health despite the fact that the Human Resources Department was informed that she lost her three month pregnancy. That the defendant did not deny the assertions in Exhibits C5 and C6 when it had the opportunity to do so. There is no material by the defendant to counter these assertions of the claimant and are thus unassailable. That it is a shame that in this century when developed countries have robust laws to protect vulnerable pregnant woman from this type of mistreatment by their employers and stipulate heavy penalties, Nigerian Labour Law does not have such protection in terms of fines and damages. That that is the only reason why the claimant did not claim for damages at all in this suit. However, that this Court has the power and duty to protect the vulnerable within the confines of Nigerian law to ensure that what is due to them is paid by their employers. In conclusion, the claimant submitted that she has proved her case on a balance of probability, urging the Court to grant all the reliefs she claims in this suit.

THE DEFENDANT’S REPLY ON POINTS OF LAW

27. The defendant reacted on points of law; but in the main merely reiterated arguments it had already advanced. I shall accordingly only highlight what in fact amounts to a reply on points of law. To the defendant, since the claimant’s counsel stated that the claimant is not alleging wrongful termination of employment, all the submissions of counsel with respect to the issue are unnecessary and go to no issue. That it is noted that the claimant is not making any claims or seeking any relief in this regard; it is, therefore, not useful in this case to copiously reiterate the issue as counsel has done and so the defendant urged the Court to so hold. That Exhibit C8, which is a letter by the defendant and which was tendered by the claimant, is also instructive on this point.

28. On whether or not the claimant has indeed proved that the defendant and the defunct company, Union Registrar Ltd are one and the same, the defendant submitted that the assertion by the claimant’s counsel in paragraph 4.4 of the final written address that the defendant changed its name from Union Registrars Limited to GTL Registrars Limited is incorrect and not in accord with the evidence before this Court. That during the re-examination of DW, he stated clearly before this Court that the defendant acquired Union Registrars Limited. To the defendant, the acquisition of a company by another cannot be equated to a mere change of name as attempted by the claimant’s counsel. That an acquisition is a restructuring exercising whereby one company becomes the beneficial owner of the interest in another company. The separate and distinct personalities of both the acquiring company and the company acquired remain intact and cannot be taken to be one and the same as erroneously argued by the claimant counsel. That since the issue has been re-clarified under re-examination that the restructuring that took place between the defendant and Union Registrars Limited was an acquisition, the Court should discountenance the argument by the claimant’s counsel that it was a mere change of name.

29. On whether or not counsel may, by way of address, alter the pleadings and evidence before this Court, the defendant submitted that under cross-examination, DW stated that the meeting at which the claimant alleges that she was “forced” to resign was a performance appraisal meeting and claimant’s counsel did not rebut this piece of evidence. That counsel cannot by his written address, add to, amend or clarify any issues in the proceedings including the evidence. In other words, the submissions of counsel cannot take the place of evidence, citing Neka BBB Manufacturing Co. Ltd v. African Continental Bank Ltd [2004] 2 NWLR (Pt. 858) 21. On this premise, that the evidence of the claimant in this case is at variance with the pleadings and cannot stand, and this action must, therefore, fail, citing Olowosogo v. Adebanjo [1988\ 4 NWLR (Pt. 88), 275. That the final written address of the claimant’s counsel shows clearly that the claimant is confused about the real issues on this case, citing Neka BBB Manufacturing Co. Ltd v. African Continental Bank Ltd (supra) where the Supreme Court stated as follows:

When the evidence of a witness is hazy or deficient, or utterly hollow, skimpy or shallow, then it would prove nothing and in case of specific claims, such weak evidence would be so wanting in its substantiality that it may be regarded as a mere effusion of an incompetent witness.

30. In response to the submission in paragraph 4.14 of the claimant’s written address, the defendant submitted that the said submission did not form part of the pleadings and evidence in this case, urging the Court to discountenance same.

31. On whether or not the claimant has succinctly proved the existence of her rights, claims or entitlement to gratuity from the company, the defendant submitted that the claimant’s contract of employment with Union Registrars Limited and the defendant respectively Exhibits Cl, C2 and C3 do not contain any provision for gratuity to contradict the defendant’s evidence. For emphasis, that Exhibit D3 states as follows: “Meanwhile, the Board has abolished all policies of the Company with effect from 30th June, 2014”. That whether or not the phrase “including but not limited to the gratuity scheme” was included in the resolution of the Board of Directors of Union Registrars Limited as contained in Exhibit D3, the phrase “all policies of the Company” is all encompassing and is without qualification or exception and, therefore, can only be interpreted to mean “all policies”. That the Black’s Law Dictionary (6th edition) defines “All” to mean “the whole of” and is used collectively. Accordingly, that since the gratuity scheme was a policy of the company it was part of the policies of the company which were abolished at the meeting of the Board of Directors of Union Registrars Limited contained in Exhibit D3, urging the Court to so hold.

32. On the claimant’s claim for gratuity, the defendant submitted that a party to a contract of employment can only claim and enforce what is contained in the contract, citing Katto v. CBN [1999] 6 NWLR (Pt. 607) 37 and Strabag v. Adeyefa [2001] 15 NWLR (Pt. 735), 1. Also that the claimant’s claim for gratuity is a species of special damages which must be specifically proved. That the claimant did not give any particulars as to how she arrived at the amount which she claimed as gratuity. Therefore, in addition to the fact that she is not entitled to gratuity, she has also failed to establish what she claims.

33. On the claim for interest, the defendant urged the Court to refuse same; and to note that under cross-examination, the claimant admitted that she was presented with a cheque by the defendant but that she refused same. To the defendant, the claimant by her action has waived her rights and is not entitled to any relief on the same, relying on Ugwuanyi v. NICON Insurance Plc [2013] 11 NWLR (Pt. 1366) 546, PWTH AG v. Ceddi Corp Ltd [2012] 2 NWLR (Pt. 1285) 465, Odu’a Investment Co. Ltd v. Talabi [1997] 10 NWLR (Pt 523) 1 and Federal Polytechnic, Idah v. Onoja [2012] 12 NWLR (Pt. 1313) 72.

34. In conclusion, the defendant submitted that the entire submissions in paragraphs 4.33 – 4.41 of the claimant’s final written address amount to an academic exercise which has no bearing on this case and goes to no issue.

COURT’S DECISION

35. In considering the merit of this case, I need to highlight some factual inconsistencies discernible from the claimant’s submissions in her written address. In paragraph 20 of the statement of facts as well as paragraph 20 of her deposition, the claimant indicated that the claim for gratuity is N945,490, but in paragraph 4.30 of the written address this sum was said to be N1,933,025.40. In relief (2), the claim for interest was said to be N1,631,582.52 but in paragraph 4.31 of the written address, this was put as N2,610,117.57. Then in paragraphs 4.34 to 4.40 the claimant made a submission as to “the duty of the 1st defendant to pay the Claimant’s wages”. To start with, there is only one defendant in this suit; as such the talk of a “1st defendant” does not arise. Secondly, the claimant does not have any claim for wages in this suit; as such the loud discussion as to the duty to pay wages, the reference to section 7(6) of the NIC Act 2006, reference to ILO Convention 95 on Protection of wages and Convention 198 on termination and section 254C of the 1999 Constitution is confusing as the Court has not been shown the basis for it.

36. I now proceed to the admissibility and evidential value of Exhibit D4. The claimant argued that this exhibit should be discountenanced given that it is undated and unsigned. Exhibit D4 is titled “Staff Gratuity Scheme” notifying the staff that the gratuity scheme introduced in 211 has been terminated with effect from 1st July 2014. The document is not dated, is not signed, and has no nexus with either the defendant or the claimant. Its source is unknown. It is simply endorsed as coming from “Management”. Like argued by the claimant, an undated and unsigned document has no probative value; and Exhibit D4 “is nothing but a piece of worthless document whose authorship cannot be ascertained”. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 and Sarai v. Haruna [2008] 23 WRN 130, which held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. By Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA), it is the law that unsigned and undated document has no evidential value. Exhibit D4, as a document seeking to disentitle staff from a benefit that had at that point existed, is a document that ought to be signed. Consequently, the fact that Exhibit D4 is not signed, is not dated, and has no nexus with either the defendant or the claimant, means that it has no evidential value whatsoever as far as the instant suit is concerned and so will be discountenanced. I so find and hold.

37. The claimant made it very clear in paragraph 4.1 of her written address (in fact she underlined and emboldened it) as well as paragraphs 4.23 and 4.41(i) of same address that she is not claiming for wrongful termination of her employment; instead she is only claiming her just entitlement after meritoriously serving the defendant for almost six years. With this (and here I agree with the defendant that) all her long talk about her being forced to resign is a non-issue as far as her case is concerned. If the claimant is not contesting the termination of her employment, then it is needless how the termination came about. After all, by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. It is, therefore, curious that after asserting that the claim of the claimant is not that of wrongful termination, the claimant’s counsel would in paragraph 4.12 of the written address urge the Court to hold that the resignation of the claimant was involuntary and was, therefore, a termination by the defendant. Two things are essential for the claimant as far as the instant suit is concerned: to show an entitlement by reference to the instrument that grants the entitlement; and to show how she came by the quantum of the entitlement. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. What the claimant has in terms of her reliefs (1) and (2) are claims for special damages which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) can never be inferred from the nature of the act complained of given that it is exceptional and so must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.

38. In paragraph 20 of the statement of facts, the claimant indicated that the terminal benefits due to her as at the time the defendant forced her to resign is N1,631,582.52 made up of:

(a) Profit share for 2014 = N435,420.35

(b) Salary in lieu of notice = N213,951.82

(d) Gratuity = N945,490

Total = N1,631,582.52

Paragraph 20 of the claimant’s statement on oath then reiterates these sums as the supporting evidence; nothing else is provided other than in paragraph 21 of the same statement on oath where the claimant averred that the defendant is a commercial organization and has been making profit from nonpayment of her entitlements since June 2015 and she is entitled to be paid interest on her terminal benefits. The question thus is: which instrument entitles the claimant to these sums? And how did the claimant come by the quantum of these sums?

39. Exhibit C3 dated 31st October 2014, the offer of employment by the defendant, at the second page under “Bonus” states that:

A bonus pool may be approved for staff of the Company based on a proportion of the annual profit after tax. Distribution to eligible staff members shall be subject to specific guidelines set out by the Management of the Company.

Now, this is the closest there is to a provision entitling the claimant to profit share that has been put forward to this Court. But as can be seen, the application of this provision depends on approval and specific guidelines made. The claimant has not shown to this Court if such approval was given and the guidelines that were made in that regard. As it is, therefore, the claim for profit share has not been proved. It fails and so is dismissed.

40. Exhibit C5 dated 1st June 2015 is the claimant’s resignation letter. In it, the claimant indicated that her resignation was involuntary and was effective from 1st June 2015. She explained further that the resignation was as a result her invitation to the defendant’s head office on 29th May 2015 where at a meeting she was advised to tender her resignation letter as a result of ill health she suffered in the past. The claimant argued that this involuntary resignation approximates to dismissal by the defendant; yet like I pointed out earlier, in three different paragraphs of her written address, the claimant strongly stated that her case is not one of wrongful termination. Now, if the claimant’s case is not one of wrongful termination, can she claim for payment in lieu of salary since this is the measure of damages for wrongful termination as British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276, Oak Pensions Ltd & ors v. Olayinka [2017] LPELR-43207(CA) and Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014, the judgment of which was delivered on 16th February 2018 can attest? I do not think so. Having categorically indicated that her case is not one of wrongful termination, the claimant cannot now turn around and claim for implied dismissal and hence salary in lieu of notice as evidenced by Exhibit C6 dated 11th August 2018. The claim for salary in lieu of notice accordingly fails and so is dismissed.

41. The claim for 13th month salary for 5 months in 2015 in the sum of N36,720.00 is hinged on the defendant admitting liability for same as per paragraph 15 of the statement of defence and Exhibit C4. By NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), admission is not enough to entitle a claimant for the claim of special damages. In paragraph 15 of the statement of defence, the defendant admitted paragraph 13 of the statement of facts where the claimant pleaded that she was presented with a cheque of N393,112.31 in full and final satisfaction of her entitlements from the defendant. The claimant’s pleadings do not indicate if she accepted this or not; however, under cross-examination, the claimant testified that she refused to collect the said cheque. The defendant proceeded in paragraph 15 of its statement of defence to state that the amount it offered to the claimant is the actual amount due to her upon a reconciliation of her entitlements, which were broken down and included N36,750 as “13th month payable (Jan – May 31, 2015)”. This sum was prorated for purposes of the defendant determining the indebtedness of the claimant to it. The defendant thus deducted this sum (N36,750) from the leave allowance refundable to it by the claimant and arrived at the balance of N24,990.00 as an amount payable by the claimant to the defendant. In other words, even the admission that the claimant said is paragraph 15 of the statement of defence, is actually not an admission after all. That means that the claim for 13th month salary has not been proved by merely alluding to an admission in the statement of defence of the defendant. As for Exhibit C4, it merely indicates 13th month at 12.5%, which is N88,200 per annum. This means that this sum is payable annually. Conceptually, the 13th month pay is paid at the end of the year, hence the name “13th month”. An uncompleted year of service does not entitle an employee to this sum. The claimant resigned her employment on 1st June 2015 i.e. after only 5 months of service in the year. This means that she has not served out the year as to be entitled to 13th month salary. Accordingly, she is not entitled to the payment of the 13th month salary she claims. The claim for 13th month salary fails and so is dismissed.

42. The claim for gratuity is in the sum of N945,490. In proof of this claim, all the claimant did was to submit that the essence of gratuity was given judicial stamp in Intels (Nig.) Ltd & ors v. Williams [2013] FWLR (Pt. 675) 376, an authority that stated that gratuity forms part of accruable or deemed accruable terminal benefits payable to an employee whose services are no longer required or retired. This statement of principle is valid so long as gratuity is an entitlement under the contract of employment or the enabling law governing the employment relationship. In Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA), His Lordship Bage, JCA (now JSC) held that what is enforceable in contract before the Court is express terms of the contract, and where there is no express terms, the law looks for implied terms. And because there was nothing from the records to show the implied terms of the contract in issue to move or derive the trial Court to its enforceability, His Lordship held that the appellants cannot expect the trial Court to be a soothsayer or magician to arrive at a verdict in their favour in the absence of anything to that effect placed before the Court. To His Lordship, the state of the law is that in a contract of employment, or service, the terms of such contract is the bedrock of the appellants’ case, and the appellants cannot ask for any entitlement outside of the contract of employment (the emphasis is this Court’s). In Exhibit C6 dated 11th August 2015, the claimant prayed the defendant to pay her just entitlement including gratuity for the period she worked. Exhibit C7 dated 17th September 2015, a letter from the claimant’s solicitor to the defendant, also prayed for gratuity. The claimant did not, however, tender any document or instrument entitling her to gratuity. Under cross-examination, the claimant testified that she is entitled to gratuity; but when she was shown all the exhibits in the case file to indicate that which grants her the entitlement to gratuity, she could not point to any. Since there is no document that shows the claimant’s entitlement to gratuity, it becomes impossible then to determine how she came by the quantum of the sum she claims as gratuity. All this being so, the claim for gratuity has not been proved. It fails and so is dismissed.