DAVID HALL VS SEVEN EXPLORATION AND PRODUCTION

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE P.A BASSI

DATE: MONDAY 7^th MAY 2018

SUIT NO; NICN/LA/340/2017

BETWEEN

DAVID HALL

CLAIMANT

AND

SEVEN EXPLORATION AND PRODUCTION LIMITED

DEFENDANT

REPRESENTATION

ADEGOKE ——– For the Claimant

UBA ONYEAMA ——– For the Defendant

JUDGMENT

The claimant commenced this suit by way of a complaint filed on 20^th July 2017 together with the accompanying originating processes. The claimant’s claims as endorsed on the general form of complaint and statement of facts dated 30^th August 2017 are for the following reliefs against the Defendant:

(i) The sum of One Hundred and Thirty-One Thousand, Five Hundred and Sixty Pounds (GBP 131, 560) being the unpaid salaries and benefits accruing to the Claimant following termination of his employment.

(ii) An order directing the Defendant to immediately remit all outstanding pension payments from 2009 till 2013 to the Claimant’s Retirement Savings Account.

(iii) The sum of ₦5, 000, 000 (Five Million Naira) in cost and solicitors expenses in prosecuting this suit.

In reply, the Defendant filed a Statement of Defence and accompanying documents on 10^th August 2017.

Pursuant to an order of this court, the claimant on the 30^th day of November 2017 amended his list of witnesses and witness statement on oath. Claimant consequently opened his case and called David Hall who testified as CW

CW adopted his statement on oath dated 18^th August 2017 and the following documents were tendered through the witness and were admitted into evidence as exhibits and marked as ‘Exhibits C1 to C7’:

Contract of employment dated 2^nd October 2015;
Revised contract of employment dated 1 July 2009;
Exit notice dated 9^th May, 2017;
Redundancy policy manual;
Letter of engagement dated 8^th June, 2017;
Demand letter dated 19^th June, 2017;
Defendant’s reply dated 5th July, 2017.

CW was cross examined by the Defendant and discharged

On the 16^th day of December, the Defendant opened their case and called one witness – Titilayo Aboderin (DW) who adopted her statement on Oath dated 10^th August, 2017. The Defendant sought to tender 14 documents into evidence and these were admitted and marked ‘Exhibits D1 to D14’
Contract of Employment between David Hall and SEPTA dated 1^st April, 2009.
Copy of the Guidelines for Cross Border Arrangements under the Pension Reform Act RR/P&R/08/016.
Copy of Claimant’s Solicitors’ Letter to Defendant dated 19^th June, 2017.
Copy of Defendant’s Response to Claimant’s Letter dated 5^th July, 2017.
Copy of letter from Defendant’s solicitors to Claimant’s solicitor dated 19^th July 2017.
Evidence of Pension Payments to David Hall.
Expatriate Policy dated 23^rd July, 2014.
Exit Letter to David Hall dated 9^th May, 2017.
Redundancy Policy dated 21^st March, 2016.
Renewal of Expatriate Quota position dated 23^rd June, 2016.
Revised Contract of Employment with SEPL Principal Statement of Employment dated 2^nd October 2015.
Standard Bank – Pension Payment Remittance.
The Defendant’s Manual of Human Resources Policies.
A verifying affidavit made pursuant to section 84 of the Evidence Act Cap E14 2011.

All Exhibits were admitted into evidence without prejudice to the rights of the parties to address the court on their admissibility and evidential value in their respective final addresses.

CASE OF THE CLAIMANT

It was the case of the Claimant that he was an Asset Protection and Transportation Specialist with the Defendant and was on an initial gross annual salary of £85,000. That this was subsequently reviewed to £131,560 per annum in 2015.

That sometime in 2017, there was an organisational restructuring at the Defendant Company and his employment was no longer required. Claimant further contends that the Organisational restructuring was in effect a Redundancy and going by the Terms of the Defendant’s Redundancy Policy, he was entitled to the sum of £98,670 as his capped Redundancy pay.

Claimant also contends that he is entitled to the sum of £32,890 as payment in lieu of Notice. It was also the claimant’s case that the said sum of £36,620.54 had already been offered to him by the Defendant upon his exit from the company but he had rejected it as it did not represent his entitlements as the redundancy pay was not included.

Claimant in addition was laying claim to the sum of £76,500 as unremitted pension due to him from the Defendant which should have been paid into his Retirement Savings Account (RSA) with a Pension Fund Administrator (PFA) in Nigeria.

Finally, Claimant wants the sum of N5 million as costs and Legal fees for prosecuting this suit.

Claimant relied on the Exhibits admitted as indicated earlier in this judgment and prayed the court to grant his reliefs.

CASE OF THE DEFENDANT

It was the case of the Defendant that the Claimant was indeed its employee and as at the time the claimant signed his revised contract of employment in October 2015, the defendant had no Redundancy Policy in operation. It was the Defendant’s case that the Redundancy policy came into effect on the 21^st of March 2016 and so it was not applicable to the claimant. However, the Defendant contended that even if the claimant is entitled to the Redundancy policy, it had to be from effect from the date the policy came into effect and not from the date of the claimant signed his employment contract. Defendant position is that the 3 months’ salary in lieu was all the claimant was entitled to.

It was also the case for the defendant that the claimant never furnished it with details of a Nigerian Pension Fund account for remittance of his pension in Naira to the said account and so it is not obliged to remit any funds to the claimant’s Nigerian Pension Account if any. That it was the responsibility of the Claimant to open a Nigerian RSA and inform the defendant that he had elected to have an RSA in Nigeria for remittances to be made into the account.

Defendant further contends that it offered the Claimant the sum of £36,620.54 as full and final settlement of his exit entitlements and required him to sign a release from any further obligations towards him, but the claimant refused. The said £36,620 by the defendant’s calculation represented exit pay of £32,890, salary up to 9^th May 2017 of 3,243.95 and pension up to 9^th May 2017 of 486.59.

At the close of evidence for both parties, the court ordered for the filing of final addresses. Parties adopted the respective final addresses on the 20^th of February 2018 and the judgment was reserved.

THE DEFENDANT’S FINAL ADDRESS

The Defendant in his Final Address formulated 3 issues for determination.

They are;

1) Whether this suit as presently constituted is incompetent?

2) Whether the Claimant was made redundant?

3) Assuming (without conceding) that the Claimant was made redundant, whether the Defendant’s redundancy policy can operate retrospectively?

4) Whether from the circumstances and facts of this case, the Claimant has proved the grounds and conditions warranting the defendant to remit the sum of GBP 131, 560 (One Hundred and Thirty-One Thousand Five Hundred and Sixty Pounds) or any sums at all from 2009 till 2013 as pensions to the Claimant’s retirement savings account if any?

On Issue 1 which is “Whether this suit as presently constituted is incompetent?”, learned counsel for the defendant submitted that the answer the above issue in the affirmative. He referred to Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007 which he submitted made provision for seal and stamp on legal documents signed or filed by among others, a legal practitioner. Counsel particularly made reference to Rules 10 (1) which provides as follows:

(1) “A lawyer acting in his capacity as a legal practitioner, legal office or adviser of any Governmental department or Ministry of any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association”.

Furthermore, the Rules defines legal document to include pleadings. Rules 10 (2) provides that:

(2)” For the purpose of this rule, “Legal documents” shall include pleadings (emphasis ours), affidavits, depositions, applications, instruments, agreements, deed letters, memoranda, report, legal opinions or any similar documents.”

Counsel then submitted that effect of failure to comply with the provisions of Rule 10 of the Rules of Professional Conduct for Legal practitioners is clearly expressed in sub-rule (3) of Rule 10 which stipulates that:

(3) “If without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule(1), the document so signed or filed shall be deemed not to have been properly signed or filed.”

From the above, it is clear that a legal document which includes pleadings in a suit is required to bear the seal and stamp of the legal practitioner who signed or filed the document. That the implication of non-compliance with the express provision of this Rule is that the document so signed or filed shall be deemed not to have been properly signed or filed. Counsel then argued that in the instant case, the Form of Complaints which is the originating process by which this suit was commenced does not bear the seal and stamp of the legal practitioner (Olabode Adegoke) who signed the legal document. He therefore submitted that implication of the above thus, is that the Complaints and accompanying documents filed in this suit is incompetent.

Mr Uba Onyema referred Honourable Court to the case of ALL PROGRESSIVES CONGRESS (APC) V. GENERAL BELLO SARKIN YAKI APPEAL NO. SC/722/15 delivered on 28th October, 2017 where the Supreme Court affirmed that failure to affix NBA Stamp on a Legal Document renders such document incompetent. The court declared as follows:

“That the signing and or filing of a legal document by a lawyer will not be competent if the NBA is not affixed to it.”

Counsel then urged this Honourable Court to dismiss this suit.

However, Mr Onyema then submitted that in the event the court finds this suit as presently constituted is competent, he proceeded to proffer arguments on issues 2,3 & 4

On Issue 2, which is Whether the Claimant was made redundant, Defendant answered the above question in the negative and further submitted that the Claimant’s employment was terminated in line with the Claimant’s contract of employment and the Claimant was offered payment in lieu of notice. Counsel argued that during the pendency of the claimant’s employment, it was governed by the terms of exhibits D1 (2009 employment contract) which in clause 10 provides for payment upon termination of employment. This clause provides among other things for the payment of any unpaid portion of his base salary. That It however, did not make any provisions for redundancy benefits to be paid to the Claimant upon termination.

Defendant further submitted that the Claimant’s employment was reviewed in 2015 and the contract of employment was replaced by exhibit D11 (the 2015 contract). That Appendix A to Exhibit D11 provides for the particulars of basic salary, any cash allowances and bonuses which the Claimant was entitled to in the course of his employment and in the event of termination. He also submitted that Exhibit D13 (Manual of Human Resources Policies) was equally expressed to be incorporated in Exhibit D11.

Defendant relied upon Clause 13 of Exhibit D11 which provides:

“In the event that either party, the company or employee wishes to terminate this employment agreement, three (3) months’ notice in writing must be given by either party to terminate this Agreement.

The company also reserved the right to provide basic salary in-lieu of notice.”

It was also the submission of counsel that there is no provision in the terms of exhibit D11 that the Claimant’s employment could be terminated on grounds of redundancy and the Defendant exercised their option to payment in lieu of notice. The Defendant duly offered the Claimant his three months’ salary in lieu of notice when his employment was terminated. That other exit packages offered the Claimant included allowing the Claimant use of the Defendant’s company vehicle as well as the continued occupation of the Defendant’s house till the expiry of the Claimant’s resident’s permit in Nigeria.

That the exit sum of GBP 36,620.54 (Thirty-Six Thousand Six Hundred and Twenty Pounds Fifty-Four Pence) contained in exhibit D8 is in consonance with the express terms of the Claimant’s contract of employment and represents the Claimant’s three months’ salary in lieu of notice.

He then submitted that where the Defendant in terminating the Claimant’s contract of employment, complied with relevant clauses and pays the monies provided for in the Claimant’s contract of employment, the Defendant incurs no further liability as such termination is valid in the eyes of the law.

Counsel relied on KEYSTONE BANK v. AFOLABI (2017) LPELR-42390(CA) @page 17 at paras D-E where Per OKORONKWO, J.C.A held as follows:

“Where the employer fires an employee in compliance with the terms and conditions of their contract of employment there is nothing the Court can do as such termination is valid in the eyes of the law.”

He then prayed the court to hold that the Claimant was not made redundant and therefore, exhibit D8 represents the total payment payable to the Claimant upon the termination of his employment with the Defendant.

On issue 3, which is Assuming (without conceding) that the Claimant was made redundant, whether the Defendant’s redundancy policy can operate retrospectively, Defendant counsel answered the above issue in the negative and submitted that the Court will have to ascertain the effect of the words “Issued for use on 21^st March, 2016” stated in page 2 of 4 of exhibit D9 as the commencement date of the policy.

He further submitted that the implication of the words ‘Issued for use” simply means the commencement date of the Policy. In other words, it is the date in which the life of exhibit D9 was birthed and therefore, only looks forward and not intended to operate to cater for events which occurred prior to 2016, the effective date of exhibit D9. Counsel referred to the case of ALI v. FRN CITATION: (2016) LPELR-40472(CA), Per NIMPAR, J.C.A. at Pp. 11, Paras. D-E held that:

“Commencement simply means the beginning, the starting point, genesis, birth, kickoff, onset, initiation and dawning of a thing.”

Defendant then submitted that policies of this nature (as with laws) as in the instant case, exhibit D9 will not operate retrospectively. That it is an established principle of law and the cardinal basis of common law jurisprudence that laws, policies (whether private or public) do not apply retrospectively. In opinion of the defendant,what the Claimant is essentially asking this Honourable court to do is to deviate from this long established principle of natural justice.

Defendant placed reliance on GOLDMARK NIG. LTD vs. IBAFON CO. LTD (2012) LPELR – 9349 SC) 1 AT 42-43,ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD vs. GARBA (2002) 7 SC (PT 11) 138, ARE vs. A.G WESTERN REGION (1960) SCNLR 224, ELIAS v. FRN & ANOR CITATION: (2016) LPELR-40797(CA)

Finally, it was the submission of Defendant Counsel that exhibit D9 which has its commencement date as 21^st March, 2016 is intended to look forward and not backward and urged the court to so hold.

On issue 4 which is whether from the circumstances and facts of this case, the Claimant has proved the grounds and conditions warranting the Court to order the Defendant to remit the sum of GBP 131, 560 (One Hundred and Thirty One Thousand Five Hundred and Sixty Pounds) or any sums at all from 2009 till 2013 as pensions to the claimant’s retirement savings account if any Defendant counsel submitted that It is trite that parties are bound by the terms of the agreement voluntarily entered into by the parties and that the duty of the Honourable Court is to give effect to the said agreement by the parties in the absence of fraud, misrepresentation, mistake, deception etc. He referred the court to the case of ENEMCHUKWU v. OKOYE & ANOR (2016) LPELR-40027(CA) where Per Ogunwunmi J.C.A at p.13 paras C-D held as follows:

“In civil matters, parties are bound by their agreement. The Courts generally do not interfere in the manner that parties choose to do business with each other as long as it is not criminal. When contracts are voluntarily entered into by parties, they become binding on them based on the terms they have set out for themselves. It is trite that where there is a valid contract agreement, parties must be held to be bound by the agreement and its terms and conditions”.

Counsel argued that it is not in issue that the Claimant was employed as an expatriate in the Defendant’s Company and that the terms and conditions of the Claimant’s employment with the Defendant was governed exhibits D1 and D11.Furthermore that Exhibit D1 which was stated to be governed by English law provided that pension was not applicable as regards the Claimant’s employment in the Defendant’s Company. Additionally, Counsel submitted that the Claimant agreed with the Defendant that all matters, disputes and claims arising out of or in connection with the employment shall be governed by and construed in accordance with English law. Mr Onyema relied on

Clause 26.1 of exhibit D1 which states that:

“this contract, the employment of the employee hereunder and all matters, disputes and claims arising out of or in connection with it shall be governed by and construed in accordance with English law.”

Clause 26.2 of exhibit D1 states that:

“The appropriate Courts of law in England shall have exclusive jurisdiction to settle all matters, disputes and claims arising out or in connection with this Contract.”

He then argued that the period of 2009 till 2013 being the period the Claimant is asking this Honourable Court to make an order directing the Defendant to remit pension was the period in which only exhibit D1 (2009 contract) expressed to be governed by English law was fully in operation. To the Defendant, it is clear that on a combined reading of the above cited clauses of exhibit D1, it is apparent that the parties in this suit intended that their contractual relationship will be governed by English law. And in the event of any dispute arising therefrom, the Courts in England will have exclusive jurisdiction.

He therefore respectfully urged the Court to uphold the sanctity of the contract between the parties and to find that just as the parties have intended and agreed, they are bound by their agreement that any issues or claims arising out of exhibit D1 would be determined exclusively by courts of law in England, this Honourable Court lacks jurisdiction to make any orders regarding pension remittances from the year 2009 to 2013 being the period in which only the English Courts to the exclusion of any other will have jurisdiction to hear and determine issues arising from exhibit D1.

Defendant relied upon in the case of TEJU INVESTMENT AND PROPERTY CO. LTD V. SUBAIR (2016) LPELR-40087(CA), at Pp. 21-22, Paras. C-E relied on the pronouncement of Tobi, JSC in the case of NIKA FISHING CO. LTD V LAVINA CORPORATION (2008) LPELR-2035(SC) 1 AT 30-31 and held that:

“Parties are bound by the conditions and terms in a contract they freely enter into… The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used… when construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document… Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document…It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the Court can determine the terms of contract between parties thereto. The duty of the Court is to strictly interpret the terms of the agreement on its clear wordings… Finally, it is not the function of a Court of law either to make agreements for the parties or to change their agreements as made.”

And also the case of ADAMS .O IDUFUEKO vs. PFIZER PRODUCTS LIMITED & ANOR LER (2014) SC. 133/2004

In the alternative, in a situation where the court finds that it has jurisdiction to entertain the Claimant’s claims for pension, Counsel prayed the court this Honourable Court to consider the provisions of the Pension Reform Act 2014, the guidelines made pursuant to the Act and hold that the Claimant has failed to fulfil the conditions necessary to join the Nigeria Pension Scheme.

He referred to the National Pension Commission approved the Guidelines for Cross Border Arrangements under the Pension Reform Act which makes provisions for pension remittances with respect to foreign employees in Nigeria. In particular, Counsel relied upon Paragraphs 2.2 of the Guidelines which deal with “Foreign Employees in Nigeria” and gave discretion to any foreign employee of a company registered in Nigeria, to either join or not to join the Scheme.

Counsel submitted that the Guidelines placed a duty on a non-Nigerian to inform his employer of his interest to join the scheme, open a Retirement Savings Account (RSA) denominated in Naira with a Pension Fund Administrator (PFA) of his choice. He referred to

Paragraph 2.2.1 of the guidelines provides that:

“Any foreign employee of a company in Nigeria shall, at his/her discretion, join the contributory pension scheme, without considering whether or not he/she has a pension arrangement in his/her home country.”

Paragraph 2.2.2 provides that:

“The employee shall inform his employer of his interest to join the scheme.”

Paragraph 2.2.3 provides that:

“Pursuant to 2.2.2 above, the employee shall open an RSA with a PFA of his/her choice.”

Paragraph 2.2.4 further provides that:

“Such RSA opened shall be denominated in Naira.”

Defendant Counsel then referred the court to exhibit D2 and argued that from the provisions of the Guidelines, there are three mandatory conditions precedent which are placed on an expatriate who wants to benefit from the Nigerian Pension Scheme. He submitted that the conditions are as follows:

Elect whether or not to join the Nigerian Pension Scheme;
Inform the Nigerian employers of his interest to join;
Open a RSA denominated in Naira with a PFA.

Defendant argued that in the instant case, CW did not comply with any of these mandatory conditions precedent. That the Claimant did not aver in his Witness Statement on Oath or placed any material evidence before this court that he elected to join the Nigerian Pension Scheme and informed the Defendant at any time between 2009 and 2013 that he was interested in joining the Nigerian Pension Scheme. Furthemore Defendant submitted that CW admitted in the course of cross examination that he did not have any Nigerian registered RSA or a PFA when it was put to him that from his witness statement on oath, he does not have a retirement savings account denominated in Naira nor a Nigerian licensed pension fund administrator. Cnsequently, there is no RSA name and number or a PFA supplied for the purpose of the Claimant receiving his pension placed by the Claimant before this court.

That clearly in the opinion of the Defendant was an indication of the Claimant’s decision to opt out of the Nigerian Pension Scheme which relieves the Defendant of any duty whatsoever to remit any monies at all as pension in favour of the Claimant at any time prior to 2013. He then urged the Court to so hold.

Mr Onyema then urged this Honourable Court to therefore, dismiss the case of the Claimant accordingly.

CLAIMANT’S FINAL ADDRESS

In reply, the claimant submitted 3 issues for determination, which are;

Whether this suit is competent
Whether the Claimant’s termination amounts to a Redundancy
Whether the claimant is entitled to the reliefs sought following his termination

On issue one, Claimant argued that the Defendant’s submission that the suit is incompetent is lacking in merit and accordingly contended that the suit is competent as claimant counsel had attached a receipt for payment for the the Nigerian Bar Association stamp without which the document would not have been accepted for payment. Counsel relied upon the cases of WIKE EZENWO NYESOM VS HON.(DR) DAKUKU ADOL PETERSIDE & ORS (2016) NWLR (PT 1512) 574, FOLORUNSHO VS FRN (2017) LPELR 41972 (CA) and particularly TODAY’S CARS LTD VS LASACO ASSURANCE PLC & ANOR (2016) LPELR (CA).

Counsel then urged the court to hold that the suit is competent.

On issue two, Claimant counsel submitted that Exhibit C3 clearly showed that the termination of the claimant’s employment amounted to a Redundancy. Counsel further submitted that the DW admitted under cross examination that the organizational restructuring at the Defendant company which led to the termination of the claimant’s employment was a form of redundancy.

He argued that what is admitted need no proof and relied upon the cases of AJIBULU VS AJAYI (2014) 2 NWLR (PT1392) 483 @ 499, OLUFISOYE & ORS VS OLORUNFEMI (1989) 1 NWLR (PT95) 26, BUNGE & ANOR VS GOV RIVERS STATE & ORS (2006) 12 NWLR (PT 995) 573 @ 600.

Claimant counsel then prayed the court to hold that the termination of the claimant’s employment was by reason of Redundancy and is so entitled to be paid the Redundancy benefits as claimed especially as the redundancy policy had been used to pay other departing employees. Counsel referred to DW’s testimony which he stated admitted that over 30 employees were made redundant under.

Finally, counsel contended that there is nowhere in the Redundancy policy that states it is not retrospective. That as the Defendant contends that it is not retrospective, it had a duty to prove same. He relied on CHUKWUANU VS UCHENDU & ORS (2016) LPELR 41022 (CA) and OLATUNDE VS OAU & ANOR (1998) LPELR 2575.

On the claims for pension, claimant relied upon the PENSION REFORM ACT 2014 and CW’s testimony that he had on 3 occasions indicated his interest in coming under the scheme and he was informed that it was not available to him. That the defendant was at fault for not remitting the pension to under the PRA 2014 and prayed the court to order the defendant to immediately remit same and grant all the reliefs of the claimant.

DEFENDANT’S REPLY ON POINTS OF LAW

The Defendant’s Reply is predicated on the following issues which counsel submitted, were raised by the Claimant in their final address. The issues are:

The time within which to raise the issue of competence of this suit as argued by the Claimant in paragraph 4.5 of the Claimant’s final address.

The effect of evidence elicited during cross-examination but without pleading as demonstrated in paragraphs 4.20, 4.28.3 (c), and line 6 of 4.28.9 of the Claimant’s final address.

On the first issue which is the time within which to raise the issue of competence of this suit as argued by the Claimant in paragraph 4.5 of the Claimant’s final address, Defendant submitted that a challenge to the competence of a suit raises the issue of the court’s jurisdiction to hear and determine same, for the competence of a suit is an ingredient of jurisdiction. That therefore, the issue can be raised at any time. He referred to the case of BOGBAN V. DIWHRE (2005) LPELR-CA/B/88/2003, BOGBAN V. DIWHRE (2005) LPELR-CA/B/88/2003 and NWORA & ORS v. NWABUEZE & ORS (2013) LPELR-SC.418/2010 where Per MOHAMMED, J.S.C (P 21,Paras E-F) held that:

“The law is well settled that for a Court to have jurisdiction in a matter, it must be commenced by due process of law and upon the fulfilment of any condition precedent to assumption of jurisdiction”

Defendant argued that the Claimant’s suit was commenced without satisfying the pre-condition and requirements for a legal practitioner acting in such capacity to affix his/her stamp and seal on a legal document and therefore, this suit has come before this court without regard to due process of law.

On issue 2, which is the effect of evidence elicited during cross-examination but without pleading as demonstrated in paragraphs 4.20, 4.28.3 (c), and line 6 of 4.28.9 of the Claimant’s final address, Defendant submitted that the entire argument of the Claimant at paragraphs 4.20, 4.22, 4.25, 4.28.3 (c), 4.28.4 and line 6 of 4.28.9 is premised on a faulty foundation. That the Claimant has clearly misapplied the law as to unpleaded facts which were elicited during cross-examination and accordingly, none of the decisions cited by the Claimant at the said paragraphs of the Claimant’s final address will apply to support its conclusion about purported admitted facts that requires no proof.

Defendant argued that the paragraphs of the Claimant’s final address referred to above which deals on issues pertaining to benefits paid to ex-employees and number of roles affected by the Defendant’s restructuring exercise were not pleaded by the Claimant and In all the eighteen (18) paragraphs of the Claimant’s Statement of Facts and indeed documents relied upon by the Claimant, there is nowhere that the Claimant pleaded anything whatsoever regarding the number of roles affected by the restructuring exercise of the Defendant or indeed the ones affected where or where not paid any kind of benefits including redundancy. He therefore argued that the implication of this is that any evidence led in that regard including ones elicited under cross-examination goes to no issue and ought to be discountenanced by this Honourable Court.

Counsel referred the court to the case of OLADIPO & ORS .v. MOBA LOCAL GOVERNMENT AUTHORITY & ORS (2009) LPELR CA/IL/10/2008 on the effect of witness evidence elicited during cross-examination where In that case, Per Sankey J. C. A at page 44-45 at paragraph D-A held thus:

“It is settled law that evidence elicited during cross-examination is inadmissible in as much as it is unsupported by the pleadings of either party. Put another way, evidence elicited from witnesses during cross examination, but which was not pleaded, (and so upon which no issue was joined and canvassed), goes to no issue. See also the cases of Okwejiminor V Nigerian Bottling Co. Plc (2008) 5 NWLR (pt. 1079) 198Punch Nig. Ltd V Enyina (2001) 17 NWLR (pt. 741) 228; Ita V Ekpenyong (2001) 1 NWLR (Pt. 695) 587; SPDC V Anaro (2000) 10 NWLR (Pt.675) 248”

Reliance was also placed on in the case of PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES v. AYWILA & ANOR (2017) LPELR-CA/J/73/2015 it was held that:

“Any evidence based on unpleaded facts, even evidence elicited under cross-examination goes to no issue, same will be discountenanced”. MSHELIA, J.C.A. (P. 32, Paras. D-E)

In the opinion of the defendant, the case of AJIBULU vs. AJAYI (2014) 2 NWLR (PT 1392) PAGE 483 at 499 relied upon by the Claimant in submitting that facts admitted need not be proved is inapplicable and cannot assist the Claimant since in actual fact, the Claimant did not plead any facts which the Defendant did not join any issues on and therefore could not admit and urged the Court to so hold.

Finally Counsel prayed the Honourable Court to discountenance the submissions of the Claimant and dismiss this suit.

COURT’S DECISION

I have read all the submissions of counsel and the processes filed in this matter. I have evaluated the oral and documentary evidence as presented by both sides. I would however deal with the defendant’s preliminary point raised in its final address as it is a jurisdictional issue. The defendant contends that this suit is incompetent as constituted as the claimant counsel had failed to affix a seal and stamp approved by the Nigerian Bar Association pursuant to Rule 10 (1) & (2) of the Rules of Professional Conduct for Legal Practitioners 2007. Counsel then prayed the court to dismiss the suit.

I have read the Claimant Counsel’s response and have looked at the processes in the case file in arriving at a decision.

Attached to the complaint in the court’s file is a bank teller dated the 10^th day of February 2017 with the depositor’s name given as OLABODE ADEGOKE who on the face of the document, paid in the sum of N4,000 in favour of the Nigerian Bar Association. I do not know if the copy of the originating process served on the defendant was without a copy this bank teller. But the decision of the Court of Appeal in TODAY’S CARS LTD VS LASACO ASSURANCE PLC & ANOR (2016) LPELR-41260 CA which was relied upon by the claimant approves of what the claimant counsel has done in this situation. The court held that;

“ It is my considered view that having paid for the stamp and seal, all that remained was the domestic affair of the Nigerian Bar Association secretariat and where like in this situation the Nigerian Bar Association secretariat is tardy, such tardiness cannot be visited on the Appellant as all required to be done on the part of the Appellant counsel has been done. See OGBUNYIYA VS OKUDO (NO;2) (1990) 4 NWLR (PT 146) 551 @ 560B,561H,562A AND 571E and ALAWODE VS SEMOH (1959) 4 FSC 27 @ 29. It is pertinent to add that the rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession but more importantly, to ensure that legal practitioners fulfil their financial obligations in that regard to the Nigerian Bar Association. The Access bank deposit slip shows that the Appellant’s counsel has discharged his financial obligations to the Nigerian Bar Association. To hearken to the 1^st Respondent’s argument and hold in the diacritical circumstances of this matter that the Appellant’s Brief was not properly filed will be turning justice on its head”

The attaching of the evidence of payment for the NBA stamp and Seal by the Claimant’s counsel is sufficient proof that he has done all he needed to do to obtain the stamp and seal. In MR. J.E. IREKPITA V. FEDERAL MORTGAGE FINANCE LTD. (2010) LPELR-8639(CA) the court of appeal PER TUR, J.C.A also held that;

“The stamping and initiating of bank tellers is prima facie evidence of receipt of money from a customer to the bank. See Aero Flot v. UBA (1986) 3 NWLR (Pt.27) 188 at 223-224; Ishola v. S.G (Nig.) Ltd (1997) 2 SCNJ 1 at 23.” (P. 24, para. A)

On authority of Today’s cars (supra), I therefore find and hold that this suit is competent as claimant counsel had done the needful. The issue is resolved against the defendant.

Having done this, I would adopt the issues for the just determination of this suit to be as formulated by the learned counsel for the defendant –

Whether or not the Claimant was made redundant?

Whether assuming that the Claimant was made redundant, whether the Defendant’s redundancy policy can operate retrospectively?

Whether from the circumstances and facts of this case, the Claimant has proved the grounds and conditions warranting the defendant to remit the sum of GBP 131, 560 (One Hundred and Thirty-One Thousand Five Hundred and Sixty Pounds) or any sums at all from 2009 till 2013 as pensions to the Claimant’s retirement savings account if any?

In resolving issue 1, it is pertinent that I examine what the claims are and how they relate to this issue. Especially as the defendant counsel had taken the pains to proffer argument as to the fact that the claimant did not leave as a result of a redundancy at the defendant company.

In paragraphs 9,10, and especially 11 of the statement of facts, it was the claimant’s story that based on the redundancy policy of the Defendant, he (the claimant) was entitled to the sum of GBP 98,670 calculated on the basis of 8% of annual gross salary for each completed year of service up the sum equal to 9 months equivalent of the claimant’s annual gross pay. I must point out here that the defendant is not contesting the calculation. The defendant is contesting whether or not the claimant is entitled to the payment.

In proof of this entitlement, the Claimant tendered into evidence exhibit C1 which is the Revised contract of employment showing his annual base salary, Exhibit C3 which is the letter of disengagement dated 9^th of May 2017 and finally Exhibit C4 which is the Defendant’s Redundancy Policy. The Claimant’s sworn deposition in paragraphs 8,9 and particularly 10 averred the entitlement as stated in the statement of facts.

A close examination of the sworn deposition of TITILAYO ABODERIN who testified as DW would show that in paragraphs 7, 8 and 9, she testified that the Manual of Human Resources Management Policies and Procedures govern the employment of the claimant with the defendant and that as at the time the claimant was employed in 2009, there was no redundancy policy as part of the Human Resources manual. However, from 21^st of March 2016, a redundancy policy was introduced by the defendant which applied to the claimant.

In paragraph 24 of her sworn Deposition, DW testified that;

“Further to paragraph 23 above, the defendant avers that it initiated a meeting with the Claimant and informed him about the restructuring intentions of the defendant, the fact that his role with the Defendant would be affected and the exit payments which shall be made to him upon HIS REDUNDANCY.

Going further to paragraph 25 of the DW’s sworn deposition, she testified that;

“The claimant was offered the sum of GBP 36,620.54(thirty-six thousand, six hundred and twenty pounds, fifty-four pence) representing his full and final exit payments and was consequently required to release and discharge the defendant from any further obligations towards him. The claimant refused, failed or neglected to accept the sum offered him or sign the disengagement letter.”

I also refer to Paragraph 30 of the Deposition which provides;

“Assuming without conceding that the Claimant is entitled to benefit under the Redundancy Policy of the Defendant, the claimant is only entitled to benefit from the effective date (2016) of the Policy.

Paragraph 32 of the same deposition also states;

“That in addition to other redundancy benefits contained in the redundancy policy of the defendant and which the defendant already offered to the claimant as his exit payment, the claimant is only entitled to 8% of annual gross salary from 2016 when the policy was issued for use in the Defendant’s company”

What the Defendant is trying to do here in this Court’s opinion is to play with semantics and try to avoid accepting that indeed the Claimant was terminated as a result of redundancy. During Cross-Examination, the same DW testified that;

“The claimant’s employment was terminated because there was restructuring. The restructuring can be said to be a form of redundancy”

Married with her evidence in chief and as a representative of the defendant who also testified in paragraphs 1 and 2 of her sworn deposition that;

“I am the Human Resources Manager of the Defendant and by virtue of my position, I am conversant with the facts of this case
I have the authority and consent of the defendant to depose to this affidavit”

Now I have read the brilliant submissions of defendant Counsel to the effect that the termination of the claimant was not based on redundancy. But as Mr. Onyeama knows, submissions of counsel in final address is not evidence. The authorised witness to testify has done so to the effect that the payment offered to the claimant was indeed part of the Redundancy benefits. And went further to answer during cross that the restructuring at the Defendant company was a form of Redundancy. The evidence elicited from the DW go to the root of this claim and paragraphs 9,10 and 11 of the statement of facts.

Parties generally have a duty to prove that which they assert. I refer to MADAM SARAH OSCAR & ANOR V. MALLAM MANSUR ALIYU ISAH 2014) LPELR-23620(CA) where the court of Appeal per AKEJU, JCA held;

‘It is elementary that in civil cases, the person who asserts bears the burden of proving that which he asserts. See AMECHI v. INEC [2008] ALL FWLR (Pt. 407) 1; DAODU v. NNPC [1998] 2 NWLR [Pt. 538] 355; FASHANU v. ADEKOYA (1974) 6 SC 83.” (P. 24, paras. A-B)’

Parties also generally cannot rely upon the weakness of the adversary’s case to succeed. I refer to JACOB ADAMU VS GEORGE IGWESI (2014) LPELR 24000. However, exceptions to that rule exists and nothing stops a party from using what is elicited from the opposite party’s case to strengthen his own case. I refer to JOSIAH AKINOLA VS FATOYINKA OLOWO & 2OTHERS (1962)1 ALL NLR (PT1) 225 where the Supreme Court held that;

“the Rule that in establishing his claim, a plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case does not apply where the Defendant’s case itself supports that of the plaintiff and contains evidence on which the plaintiff is entitled to rely on.”

This was cited and relied upon by the Court of Appeal in OGBUEFI PHILIP OKADIGBO & ORS VS UDO OJECHI & ORS (2011) LPELR-4687 (CA) and OLOWO VS ALUKO (2014) LPELR 24235-CA.

The claimant here is well within his rights to refer to the favourable evidence as presented by the defendant. This must be weighed in addition to what evidence the claimant adduces in support of his claims to establish whether on the balance of probabilities, the claimant’s case succeeds.

Redundancy is a fact in issue and facts that go to establish it are admissible and can be relied upon by the court in resolving the issue. The evidence of DW on Redundancy at the Defendant Company would be taken into consideration in resolving this issue and I so hold.

The issue here is quite simple. The claimant has placed before this court his claims. In proof he has shown his entitlement to his annual salary, his employment letter showing the length of service. His termination letter showing the exit from the defendant company. The redundancy policy of the defendant and shown his calculation as to the amount he claims as redundancy benefit.

The defendant has through its witness has admitted that the restructuring was a redundancy and other staff had been paid off due to the redundancy. Defendant further testified that the offer made to the claimant was part of the redundancy benefit due to the claimant Reference here to paragraphs 23,24,25 & 32 of the sworn deposition of DW.

So, did the DW admit that there was a redundancy at the defendant company that lead to the termination of the Defendant’s employment? An admission has been defined by the BLACK’S LAW DICTIONARY 7^TH EDITION at PAGE 48 as “a voluntary acknowledgement of the existence of a fact relevant to an adversary’s case”

Section 20 of the Evidence Act 2011 also defines an admission as;

“a statement, oral or documentary or conduct which suggests any inference to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances mentioned in the Act”

The court in ANASAN FARMS LTD VS NAL MERCHANT BANK (1994) 3 NWLR (PT331) 241@ 252 defined an admission as;

“a statement oral or written by a party or his agent to legal proceedings and which statement is averse to his case”. See also IYEKE VS ABU (2015) LPELR 25735 (CA).

I find that paragraph 24 and 32 in particular of the DW’s witness statement on oath amounts to an unambiguous admission the fact that the claimant was terminated on the basis of redundancy and a corroboration of the claims. I therefore hold that indeed the termination of the claimant’s employment was as a result of redundancy and the provisions of exhibit C4 also tendered as exhibit D9 would apply to the claimant.

Before I make a pronouncement on the quantum due to the claimant as his redundancy benefits, I must address the period for which he is entitled to claim and benefit. The defendant had argued that even if the claimant is entitled to claim under exhibit C4 (D9), it must be from 2016 till his exit. Counsel argued that the said exhibit does not have retrospective effect and relied on several decisions to that effect. However, counsel left out one important consideration. All the authorities he cited related to statutes. Not Agreements or contracts but statutes. How that applies to contracts, I don’t know. No authority was given to show Statutes on one hand and contractual Agreements between parties on the other are one and the same for the purposes of resolution of retrospective application not laws as referred to the decisions cited.

I have painstakingly gone through exhibit C4 which is the redundancy policy and time and again, I find no reference to restrictions to commencement or application as Defendant counsel argued. It came into effect on the 21^st of March 2016 and in this court’s opinion, applied to all staff in the service of the defendant as at that date moving forward who could be affected by a redundancy. The Policy affects situations where redundancy occurs from 2016. It applied to the claimant. The exhibit did not in any clause restrict the benefits to the issue date.

It can be argued that it would not apply to staff who had left the defendant before exhibit C4 came into effect and that argument may be tenable. But for an employee who was in service when the exhibit came into effect, it must apply to such employee in the absence of any express clause to the contrary. I refer to BUREAU OF PUBLIC ENTERPRISES V. ASSURANCE BANK PLC & ORS (2009) LPELR-3896(CA) where the Court of Appeal per ABOKI JCA held as follows;

“It is trite law that where the language of any instrument are plain and unambiguous, the Court as well as the parties in the case should give it its plain and ordinary meaning and no person will be allowed to introduce extraneous words or meanings in the construction of such document. See Borishade v. N.B.N. Ltd. (2007) 1 NWLR Pt. 1015 page 229; Excel Plastics Industries Ltd. v. FBN (2005) 11 NWLR Pt. 935 page 59 at 84; UBN V. Ozigi (1994) 3 NWLR Pt. 333 page 388.”(P. 18, paras. D-F)”

Oral evidence or submission of counsel cannot change the contents of a document. It can only be varied by another document. See IJEWERE VS ERIBO (2014) LPELR 23263 (CA). The courts can only give meaning to a validly made agreement between the parties. See RENE ANTOUN & ANOR V. BENSON OGHENE (2012) LPELR-8502(CA) where the court of Appeal Per Danjuma JCA held;

“If an agreement has been reduced into writing, it is the terms and conditions as contained in the document that is the determinant factor and no oral or extraneous evidence is permissible. See UBN Ltd. V. Professor Albert Ojo Ozigi 1994 3 NWLR (Pt. 333) 385.

It is trite that more than one document can constitute the contract of employment and terms thereof between employer and employee. `Exhibit C 4 Modified the contractual relationship between the parties in this suit. I therefore find that in the absence of any express restrictions stated in exhibit C4, it applies to the claimant who became was terminated by virtue of redundancy after exhibit C4 came into effect. I so hold.

The claimant is therefore entitled to the sum of £98,670 (Ninety -eight thousand, six hundred and seventy pounds) as his redundancy pay and the sum of £32,890 (thirty-two thousand, eight hundred and ninety pounds) which represents his 3 months’ salary in lieu of Notice. The payment of the 3 months’ salary in lieu of Notice is undisputed having been offered the claimant by Exhibit C8 (same as D8) and the defendant has not disputed that aspect of the claim. Accordingly, the relief 1 of the claim for a total of £ 131,560 hereby succeeds and it is so granted. I so hold.

Now coming to the claim for pension, the claimant’s case is hinged on the alleged non-remittance of his pension coming up to £76,500 for the years 2009-2013. The Defendant had submitted that the law governing the relationship between the parties is English law. However, this was in the 2009 Agreement which was subsequently modified by the 2015 Agreement between the parties. The 2015 Agreement provided explicitly in Clause 23 that

“This Agreement shall be governed by and construed accordance with the laws of the Federal Republic of Nigeria”.

Under the said 2015 revised Agreement, clause 12 of Appendix A provides for the agreement of the parties on Pension. Accordingly, the issue regarding the Pension of the claimant would be dealt with in accordance with the laws of the Federal Republic of Nigeria. I so hold.

Now it was the defendant’s case that the claimant never elected to join the Contributory Pension Scheme in Nigeria nor opened a Retirement Savings account to that effect. That the claimant was obliged to open an RSA upon election to join the Nigerian Pension scheme and furnish the defendant with the details of such RSA for remittances into the account.

Now Exhibit D2 is a Certified True Copy of the Guidelines for Cross Border Arrangements under the Pension Reform Act. It provides thus under;

“2.1.1 Pursuant to the provisions of section 1(1) of the PRA’04, which states that “… there shall be established for any employment in the Federal Republic of Nigeria a contributory Pension Scheme for payment of retirement benefits of employees to whom the scheme applies”, the pension scheme under the PRA’04 shall be deemed to cover individuals under any employment in the Federal Republic of Nigeria. Such individuals shall include Nigerian employees of Embassies, High Commissions and International Organizations. However, foreign nationals working in Nigeria could at their discretion join the mandatory contribution scheme.

2.2.1 Any foreign employee of a company registered in Nigeria shall, at his/her discretion, join the contributory pension scheme, without considering whether or not he/she has a pension arrangement in his/her home country.

2.2.2 The employee shall inform his employer of his interest to join the scheme.

2.2.3 Pursuant to 2.2.2 above, the employee shall open an RSA with a PFA of his/her choice. 2.2.4 The RSA opened as in 2.2.3 shall be denominated in Naira. 2.2.5 Where the employee’s wage is paid in foreign currency, his/her employer shall convert his/her contribution to Naira equivalent and remit to the PFC.”

The Expatriate Policy of the defendant which is exhibit D7 Provides also in clause 4.8.3 titled PENSIONS that;

“Effective 1^st July 2013, the company provides a UK Pensions Scheme for its Expats by contributing a maximum of 15% of monthly base salary to the Expatriate’s pension account. The pension scheme is arranged corporately via the London office. A Nigerian pension scheme is also available for Expats who prefer this option. The company’s contribution is the same for both the UK and Nigerian schemes. An Expat may elect to participate in the pensions scheme by contributing a specific percentage of base salaries into his/her pension account. Notice of voluntary election to participate should be forwarded to host country Human Resource department”

The Claimant is obliged to show his entitlement to the sums claimed as the pension contributions from 2009-2013 by showing he complied with the above guidelines by opening an RSA and informing the defendant of that fact as well as furnishing the defendant with the details of the RSA for remittance of his pension in Naira.

I must point out here that the way the relief was couched, the claimant failed to make it clear what RSA he was referring to. The one at the Isle of Man or a Nigerian RSA with a PFA here in Nigeria. However, Exhibit D3 which was authored by the claimant’s counsel made reference to a Nigerian RSA in the following terms;

“Based on the foregoing and in addition to our client’s redundancy pay claim, we demand the immediate remittance of the sum of £76,500 as pension payments. As you are aware, SEPL’s failure to remit the said sum is a clear breach of the Pension Reform Act 2014, which provides for mandatory remittance of an employee’s pension within 7 working days”.

It therefore can be deduced that the RSA referred to in the claim is the one contemplated by the Pension Reform Act 2014 which I pointed out earlier, the claimant has not shown he elected to have an RSA in Nigeria in accordance with the guidelines and informed the defendant of his PFA and RSA.

The claimant has failed to adduce evidence that would show the entitlement to the pension from 2009-2013. No evidence was led to show the agreement of the parties to pay the claimant pension in Nigeria and what steps if any, the claimant had taken to come under the scheme. This head of claim must fail and in the circumstances, the court must find that the defendant was not obliged to remit £76,500 to the pension account of the claimant either contractually or under an obligation under the law. This head of Claim hereby fails and is hereby dismissed. I so hold.

I also award costs of N200,000 in favor of the claimant which is to be paid by the defendant.

For the avoidance of doubt, the I hereby order as follows;

(1) The Claimant’s relief 1 succeeds and the defendant is ordered to pay the claimant the sum of £131,560 (one hundred and thirty-one thousand, five hundred and sixty pounds) within 14 days failing which interest would accrue on the said sum at the rate of 10% per annum.

(2) Relief 2 for the remittance of £76,500 (seventy-six thousand, five hundred pounds) pension claims into the claimant’s RSA hereby fails and is dismissed.

(3) Costs of N200,000 is hereby awarded in favor of the claimant which must be paid within 14 days.

Judgment is entered accordingly.

Hon. Justice Paul Ahmed Bassi

Judge