MR.PETEROBI -vs- UPDC HOTELS LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJJANI-JUDGE

DATE: MONDAY, APRIL 16^TH 2018

SUITNO: NICN/LA/482/2017

BETWEEN:

MR.PETEROBI……………………………………………………………………….. CLAIMANT

AND

UPDC HOTELS LIMITED

(Trading as Golden Tulip, Festac, Lagos) ……………………………………… DEFENDANT

REPRESENTATION

O.A. Yusuf (Mrs) for the Claimant

F.O. Abbas with N.O. Emmanuel for the Defendant

JUDGMENT

This suit was instituted by the claimant via a Complaint dated and filed on the 3^rdof October 2017, which was accompanied by the other processes as required by the Rules of this Honourable Court. The defendant entered formal appearance and later filed its defense processes in opposition to the claimant’s case on October 25, 2017. By the Complaint, the Claimant is seeking for the following reliefs:

A DECLARATION that the Refusal, failure and or neglect of the defendant to pay to the Claimant his complete gratuity is wrongful, illegal, null, void and of no effect whatsoever.
A DECLARATION that the Defendant by virtue of the provision contained in page 12 of the Defendant’s Staff Handbook is entitled to pay to the Claimant, 12 weeks gross pay for each completed year of service in the sum of N1,620,000.00, having been in the employment of the Defendant for 5 years.
A DECLARATION that the Claimant is entitled to be paid the balance of his gratuity in the manner and amount listed below, to wit:

Name

Monthly salary

12weeks gross pay for each completed year of service

Total Gratuity

Amount previously paidas gratuity

Balance of Gratuity yet unpaid

Peter Obi

N108,000

N27,000 per week x 12 weeks= N324,000

N324,000 per year x 5 years= N1,620,000

N1,620,000

N750,000

N870,000

AN ORDER mandating the Defendant to pay to the Claimant forthwith the sum of N870,000 being and representing the balance of gratuity owed to the Claimant by the defendants having been in employment with the defendant from 6^th Oct 2009 to 12^th of November 2014.
Sum of N500,000 for instituting this suit against the defendant.
Interest at the rate of 21% per annum from the date of this suit until judgment is delivered, thereafter, interest at the rate of 10% per annum until judgment sum is liquidated.

At the trial, the claimant testified for himself as CW, while Mrs. Ooja Oche, a Human Resources Manager with the defendant, testified for the defendant as the DW. At the close of the trial, parties filed their respective written addresses. The defendant’s written address is dated 20 December 2017 but was filed on 21 December, 2017 while the claimant’s written address is dated and filed on 18 January, 2018. The defendant’s reply on point of law is dated 31 January, 2018 but filed on 1 February 2018.

THE CASE OF THE CLAIMANT

The case of the Claimant is that he was employed by the Defendant as a Food and Beverage Supervisor and he rose to become a Food and Beverage Manager, a position the claimant occupied until his resignation from the Defendant’s employment on 12^th November 2014. To the claimant, as at 12^th November 2014 when the Claimant tendered his letter of resignation from the Defendant’s employment, he was in the managerial cadre. The Defendant issued policies from time to time and these policies are binding on all the employees of the Defendant. One of such policies was the Memorandum issued by the Human Resource Manager of the Defendant directing that couples should not work in the same work environment and that if there were any such couples in the Defendant’s employment; either of the couples was advised to resign.The Claimant, in compliance with the Memorandum mentioned above, resigned as a result of the fact that he and his wife were employees in the Defendant’s establishment. The Defendant computed the Claimant’s gratuity immediately and paid him the computed sum, upon his resignation.

The Claimant’s main contention is that he was entitled to the sum of Eight Hundred and Seventy Thousand Naira (N870, 000.00) being the shortfall of the total sum of his gratuity.

The Claimant’s case is that, having worked for the Defendant for a period of five years, he was entitled to 12 weeks gross pay of each completed year of service as stated at page 12 of the Defendant’s Staff Handbook, and that if the Defendant had applied the computation stated in its Staff Handbook, it would have found that he was entitled to receive the sum of One Million, Six Hundred and Twenty Thousand Naira(N1,620,000.00) as gratuity as against the sum of (Seven Hundred and Fifty Thousand Naira (N750,000.00) which the Defendant paid to him as his gratuity.

THE CASE OF THE DEFENDANT

It is the Defendant’s case that its employees are well taken care of, their gratuities calculated correctly and paid promptly to them upon their exit from its employment.

The Defendant states that it has fully paid the Claimant’s gratuity to him in the sum ofSeven Hundred and Fifty Thousand Naira (N750, 000) which is his total gratuity as computed in accordance with the Defendant’s policy.The Defendant further states that upon receipt of the Claimant’s Solicitors letter of demand dated 23^rd of May 2017, it investigated the claims made by the Claimant’s Solicitors in the letter of demand and upon conclusion of its investigation, it prepared a response dated 3^rd of July 2017 by which it informed the Claimant’s Solicitor of the basis of calculation of the Claimant’s gratuity.It is the Defendant’s case that the correct formula for calculation of the Claimant’s gratuity in accordance with the Defendant’s Handbook, the Defendant’s Human Resources practice and letter dated 3^rd July 2017 is (Annual Basic Salary/52) x (No of weeks payable) x (No of years of service)

The Defendant states that prior to its letter of 3^rd July 2017, it had earlier written another letter dated 3^rd of February 2014 to the Claimant by which it communicated the Claimant’s emoluments as at the time of his disengagement to him, but the Claimant neither responded to this letter nor made any reference to its existence via his pleadings. It is the Defendant’s case that it had refused to pay the alleged balance of the sum of N870,000(Eight Hundred and Seventy Thousand) to the Claimant because it is not liable to pay same to the Claimant since it has fully discharged its obligation towards the Claimant by promptly calculating and paying his full gratuity in the sum of Seven Hundred and Fifty Thousand Naira (N750,000.00 ) to him upon his disengagement from the services of the Defendant.

THE SUBMISSION OF THE DEFENDANT

The Defendant submits the following sole issue for determination:

Whether the Defendant is entitled to consider its additional human resource department policies which are no less binding than Exhibit CWK, the Staff Handbook, in computing the Claimant’s gratuity.

ARGUMENT OF SOLE ISSUE

To the defendant, the whole issue in this case revolves around whether the Defendant is entitled to rely on its internal human resources department’s policy on payment of gratuity which states that the gratuity of managerial staff shall be calculated based on the gross salary of the employee concerned, as against relying on the general provision of the Defendant’s Employee Staff Handbook, which states that the gratuity should be calculated using the gross salary of the employee concerned. That there is sufficient evidence that the Defendant is entitled to consider its internal human resources department’s policy as it affects computation of gratuity, as this policy forms part of the Claimant’s contract of employment.

The defendant argued that the Claimant admitted under cross-examination that the reason for his resignation from the Defendant’s employment was based on a memorandum which was issued by the Defendant on couples working in the same organization. That the Claimant also admitted that the Defendant’s Staff Handbook had no policy on couples working in the same organization. To the defendant, if the Claimant could rely on a policy of the Defendant on couples working in the same organization as the basis of his resignation, it simply goes without saying that he must also be bound by the Defendant’s policy on gratuity, which states that the gratuity for managerial staff must be calculated based on the basic salary of the employee and not his gross pay. The defendant argued that is therefore clear from the above that any other policy issued by the Human Resource Department of a company must, as a matter of fact, form part of an employee’s contract of employment.

It is submitted by the defendant that a contract of employment is an embodiment of all those documents which regulate the engagement of an employee by his employer and is not restricted to any particular document. Citing Alhaji Mohammed BalaAudu v Petroleum Equalisation Fund (Management) Board & Anor.(2010) LPELR-3824 (CA) P. 16 Paragraph A-C andMobil Producing Nigeria Unlimited.& Anor. v. Udo Tom Udo [PC No. 542] (2008)LPELR-8440 P. 67 Paragraph C-E

The defendant went on that in the instant case, what forms the Claimant’s contract of employment includes his Letter of Appointment, all his letters of promotion, the Staff Handbook, the Memorandum emanating from the Office of the Human Resources Manager which reviewed the contract of couples working in the same organization and upon which basis the Claimant advisedly resigned his appointment, and all the other policies of the Human Resources Department of the Defendant to the knowledge of both the Claimant and the Defendant.

That under her re-examination, the Defendant’s sole witness explained to the Court that the provision on gratuity in the Defendant’s Employee Staff Handbook was only applicable to junior staff of the Defendant, as there was a separate Human Resources Department’s policy for computation of terminal benefits of the Defendant’s staff in the Managerial cadre. That the Claimant was aware of this policy for the computation of the gratuity of managerial staff, as he had, by his Letter of Appeal dated 22^nd April 2015(Exhibit CWP), pleaded that the Defendant should not apply the special policy of using the annual basic salary as the basis of its computation of the Claimant’s terminal benefits.The defendant further stated that it is an elementary principle of law that special provisions derogate from general provisions in interpretation of contracts and of statutes. That it is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter.A case falling within the words of the special provision must be governed thereby and not by the terms of the general provision,citing the case of Schroder v Major (1989) 2 NWLR (Pt. 101) 1 and In Ajayi v Owolabi (2009) LPELR-3672

The defendant also submitted that in the instant case, the provision heavily relied on by the Claimant and on which he insists that the calculation of his gratuity should be based, is a general provision which applies to all the Defendant’s employees, as the Staff Handbook does not discriminate on the status of members of staff. That the general applicability of the provisions of the Handbook on gratuity has been restricted by the policy of the Defendant which states that the gratuity for managerial staff shall be calculated based on the basic pay of the employee, whilst the provision on gratuity in the Handbook would only be applicable to the junior staff of the Defendant.The Defendant further argued that its sole witness maintained under cross-examination and re-examination that the section of the Employee Handbook (Exhibit CWK), which was heavily relied on by the Claimant does not apply to him because he falls in the managerial cadre in the Defendant’s employment. That the Claimant is aware that the computation of his terminal benefits cannot be based on Exhibit CWK which was why in his (claimants) “Letter of Appeal” (Exhibit CWP), he pleaded with the Defendant not to apply the policy to him in the computation of his gratuity since he only spent 11 (eleven) months as a manager before he had to resign from the Defendant’s establishment.

The defendant therefore submitted that It is trite law that facts admitted need no further proof. Citing section 123 of Evidence Act. To the defendant by the Claimant’s choice of not challenging the accuracy of the Defendant’s calculation, he is deemed to have admitted that the sum calculated as the Claimant’s gratuity is accurate when the basic salary is employed as the basis of computation, citing Imana vs. Robinson (1979) N.S.C.C. Vol. 12 page 1 at 5; and Consolidated Resources Ltd V. Abofar Ventures (Nig) Ltd (2007) 6 NWLR (pt 1030) 221. To the defendant, the Claimant’s challenge is mainly anchored on his insistence that the Defendant should have used his gross salary rather than his basic salary which challenge has been demonstrated in this case to be wrong and baseless, particularly owing to the fact that the Claimant admitted that he was in the managerial cadre at the time of his resignation and that different criterion exists for computation of the gratuity of employees in the managerial cadre.

It is further submitted by the defendant that the instant suit is an extortionist venture and was brought in bad faith since the Claimant who, as a former manager in the Defendant, knows that he is not entitled to the sum he is claiming, but he only instituted this lawsuit in order to intimidate the Defendant and to mislead this Honourable Court to grant the reliefs, which he is seeking,citingMessrs NV Scheep& Anor v. The MV’S Araz’ &Anor.(2000) 15 NWLR (Pt. 691) 622 at page 664 where the Court held that bringing an unmeritorious claim in bad faith would amount to an abuse of court process. That the Claimant is aware that his gratuity cannot be calculated based on his gross salary

The defendant also argued that Immediately the Claimant resigned from the employment of the Defendant, his terminal benefits was computed and the sum of Seven Hundred and Fifty Thousand Naira (N750, 000.00) was immediately paid to him by the Defendant. That the Claimant subsequently contacted the Defendant for explanation and he was informed that he was in the Managerial cadre and therefore basic salary, rather than gross, was used as the basis of computation of his terminal benefits. That the Claimant was not satisfied and he engaged his solicitors to recover his alleged shortfall. That the Defendant promptly informed the solicitor of the basis of calculation of the Claimant’s gratuity.

It is the defendant’s submission that this suit is not maintainable as the Claimant has no scintilla of evidence to substantiate the claim he is making before the Court. That his letter of appeal, Exhibit CWP, is helpful in this regard as he had pleaded with the Defendant not to resort to its policy regarding computation of terminal benefits for staff in the managerial cadre because he had only spent 11 (eleven) months in the said position, and that having appealed to the Defendant in the past to waive the application of the policy regarding gratuity to him, the Claimant is estopped from denying the existence of the Defendant’s policy on payment of gratuity to the managerial staff of the Defendant.

It is further submitted by the defendant that the Claimant’s position is based on sentiments, which have no place in a court of law. Courts deal with facts, and not sentiments, and it is the duty of any party who claims to be entitled to any relief, which he is claiming before the Court to produce proof in support of same;.citingAnike v. S.P.D.C.N. Limited (2011) NWLR (Pt. 1246) 227 at 245

The Defendant finally submitted that the Claimant’s suit is unmeritorious and is therefore liable to be dismissed for the following reasons:

The Claimant’s contract of employment with the Defendant includes all agreements regulating the Claimant’s engagement with the Defendant, which therefore includes the Defendant’s human resources department’s policy of using the annual basic salary to calculate the gratuity of employees in the management cadre of the Defendant.
The Defendant has a separate policy for computing the terminal benefits of its managerial cadre staff, as the general provisions on terminal benefits in the Defendant’s Employee Handbook(Exhibit CWK)only applies to junior staff in the Defendant’s employment.
The Claimant admitted that he was a managerial staff at the time of his resignation from the Defendant’s employment.
The Defendant’s witness under re-examination reiterated that the section of the Staff Handbook on gratuity does not apply to the Claimant as there was a special human resources department’s policy on gratuity that applies to employees in the managerial cadre of the Defendant.
The Claimant, by his letter of appeal (Exhibit CWP), admitted that he was aware of the Defendant’s policy, which states that the gratuity for managerial staff shall be calculated based on the basic salary of the employee, as he appealed to the Managing Director of the Defendant not to apply the company’s policy to him since he only spent Eleven(11) years as a manager in the Defendant’s employment.
The Defendant has correctly and accurately calculated the Claimant’s terminal benefits and promptly paid same to him upon his resignation.

SUBMISSION OF THE CLAIMANT

The claimant in his final written address formulated the following issues for determination:

Whether the Defendant’s Staff Hand book on Conditions of Service does not form part of the Claimant’s contract of employment and Whether the Claimant by virtue of the provisions of Clause 12, Pages 11 & 12 of the same Staff Handbook on Conditions of Service is not entitled to the balance of his gratuity in the sum of Eight Hundred and Seventy Thousand Naira (N870,000)
Whether an unknown policy purportedly originating from the internal human resource department of the Defendant can take the place of the Defendant’s Employee Handbook on Conditions of Service, same having not been tendered and not being part of the contract of employment documents given to the Claimant at the point of acceptance of his offer of employment
Whether from the pleadings and the evidence led in this Suit, the Claimant has made out a case to be entitled to the reliefs sought

On the first issue, the claimant argued that the position of the law is very clear that in a written contract of employment, the provisions are binding on the parties thereto and it is outside the powers of the Court to look anywhere else for the terms with regard to the termination of the contract other than in the written agreement,citing CBN vs Archibong (2001) 10 NWLR Pt 721, Pg 492@507

It is the Claimant’s case that the court in determining the issues before it, ought to carefully carry out a study of the contract documents exchanged by parties at the point of employment as these documents remain the bedrock of all future dealings between the parties. Claimant referred the Honorable Court to Exhibit CWC-C2 (Claimant’s Letter of Employment) particularly Clause 15 which specifically states as follows:

‘Other Terms and Conditions: Other terms and conditions applicable to you will be found in the Employee Handbook of Conditions of Service, a copy of which will be supplied to you by the Human Resource Manager on resumption of duty….’

Claimant submitted that from the above, the Defendant in referring the Claimant to its Employee Handbook of Conditions of Service (Exhibit CWK), is a clear indication of the fact that the Defendant’s Staff Handbook is the only contract document which provides for the method of computation of gratuity within the defendants organization, citing Henry OkechukwuMbonuvs Independent National Electoral Commission (2013) 36 NLLR, PT 111, Pg 785@812, where the NIC held per Hon Justice A.O Obaseki-Osaghae held:

‘where a letter of appointment of an employee states that ‘ other conditions of appointment will be as applicable in the Federal Civil Service’, it simply implies that such an employee’s appointment is governed by the Federal Public Service Rules.

The claimant urged this Court to find that the principle in the above cited case is the same as in this instant case where the Claimant’s letter of employment (Exhibit CWC-C2) in clause 15 states that all other terms and conditions as applicable to the Claimant’s employment is contained in the Employee Handbook of Conditions of Service (Exhibit CWK)

The claimant reproduced the Provisions of Exhibit CWK which states:

‘Gratuity pay is considered to be appreciation from the Hotel management for an associate’s long and fruitful service to the Hotel. Therefore an associate who is dismissed or resigned to avoid dismissal for major offences such as stealing and fraudulent acts will not be entitled to gratuity pay.

Associates having completed a period of three years of unbroken service to the Hotel, upon resignation or termination of his/her employment contract will be entitled to five weeks pay for every completed year of service.

3 years but less than 5 years

5 weeks gross pay for each completed year of service

5 years and above but less than 10 years

12 weeks gross pay for each completed year of service

10 years and above but less than 15 years

16 weeks gross pay for each completed year of service

15 years and above but less than 20 years

18 weeks gross pay for each completed year of service

20 years and above

20 weeks gross pay for each completed year of service”

It is the Claimant’s case that the Defendant Staff Handbook is essentially one of the contract of employment documents availed the Claimant at the time he was offered employment by the Defendant. Placing reliance on the case of A.R Momoh vs CBN (2008) 10 NLLR, Pt 25, Pg 62@85, where the Court of Appeal held that:

‘The law is long settled that in interpreting the provisions of a written contract, no addition thereto or subtraction therefrom is permissible. The words used must be given effect to and no word should be proved in the interpretation of the intention of the parties, otherwise the court will be seen as re-writing the agreement between the parties’.

It is the Claimant’s submission that the Defendant is bound by the Staff Handbook which was and still is, in existence as part of employees’ conditions of service (the Claimant inclusive) and therefore must bind the Defendant and serve as a reference point for any of its dealings with the Claimant. That the Claimant who was employed on the 6^th of October, 2009 and resigned from the employment of the Defendant on the 12^th of November, 2014 spent a total of 5 years and 1 month (Five Years and One Month) in the Defendant company and as such qualifies under the category of 5 years and above but less than 10 years = 5 weeks gross pay for each completed year of service as stated in Exhibit CWK

The claimant also argued that the Defendant has failed to furnish this Honorable Court with any other document to controvert the provisions of its staff handbook (Exhibit CWK) and or provide this Honorable Court with any other document that forms part of the contract of employment with the Claimant and which contains a different provision on gratuity other than that which the Claimant is claiming, citing the case of Brawal Shipping Nig Ltd v Ometraco International Ltd, (2011) 10 NWLR Pt 1255, Pg 290@303 where the Court of Appeal held that:

‘even if a fact is duly pleaded, it would be deemed to be abandoned if there is no evidence led to prove such averment unless it is admitted or undenied’

It is the Claimant’s case that there exists no document emanating from the Defendant to support its claims that the Claimant’s gratuity ought not to be calculated in accordance with the provisions stated in its own Staff Handbook. That the onus of proving the existence of such a document falls squarely on the Defendant and same has not been discharged. Claimant submitted that it is a trite principle of law that oral evidence cannot take the place of documentary evidence, citing Dr Charles EzenwavsKatsina State Health Services Management Board (2011) 9 NWLR, Pt 1251, Pg 89@118 where the Court held that:

‘where a case is fought on pleadings supported by documentary evidence, oral evidence should not be allowed to contradict the clear terms of the documents since the task before the court is to interpret or construct the terms of the documents’

The claimant cited the case of Akinwunmi O. Alade vsAlic (Nig) Ltd and LadipoFalemu (2010) 19 NWLR Pt 1226, Pg 111@144 where it was held that:

“No Court will act on an untendered document’

The claimant went on that under cross examination, the Defendant’s witness alleged that the supposed correct formula for calculation of the Claimant’s gratuity is contained in Exhibit DWB (Defendant’s Letter to the Claimant dated 3^rd of July 2017), that contrary to the foregoing statement, the Defendant’s Letter dated 3^rd July 2017 (Exhibit DWB) is just a mere response to the Claimant’s Solicitor’s letter dated 23^rd of May 2017 (Exhibit CWO-O3) and that it cannot in any way be remotely considered a binding contract document to be relied upon by this Honorable court in the determination of the correct formula for the computation of the Claimant’s gratuity. The claimant referred this Court to the response of the Defendant Witness under cross examination where she said that:

‘yes, I agree that we are here to determine the correct computation of the Claimant’s gratuity and nothing else’

‘No, we do not have any formal basis for computing gratuity of the Claimant’

The claimant therefore argued that the Defendant’s witness’ admission under oath where she stated that :there was no formal basis for computing the gratuity of the Claimant, is a clear admission on the part of the Defendant that there exists no other written contract document apart from the contract of employment documents tendered by the Claimant in support of his claim. That this admission made by the Defendant’s witness has also affirmed the Claimant’s position that the purported ‘Human Resources Department Policy ‘ was only conjured up at the start of this suit in an attempt to blindfold the Court and same is a non- existent document. The claimant placed reliance on Akinwunmi O. Alade vsAlic (Nig) Ltd and LadipoFalemu (2010) 19 NWLR Pt 1226, Pg 111@144 where the Court held:

‘ in a written contract of service, the provisions are binding on the parties thereto and it is outside the powers of the Court to look anywhere else for the terms with regard to the termination of the contract other than in the written agreement’

To the claimant, an in-depth study of Paragraph 3.10 of the defendant’s final written address will reveal that the Defendant expressly admitted that the Defendant’s Staff Handbook (Exhibit CWK) does not discriminate on the status of members of the Defendant’s staff. That this admission made by the Defendant supports the claimant’s submission in the foregoing paragraphs that there is nothing in the Defendant’s Staff Handbook to suggest the categorization of staff into junior and managerial staff. The claimant then asked: at what point did the Defendant categorize its staff and how was it done if there is no formal document to that effect?

Premised on the facts, evidence and position of the law, the claimant urged this Court to find that the Claimant has proved it’s case by providing all the necessary documents to evidence the fact that there was indeed a contract of employment between him and the Defendant and that same contract terms be followed in the calculation of his gratuity. The Claimant also argued that he has also shown that the documents tendered by him were given to him by the Defendant at the time of their offer and his acceptance of his employment. Reliance was placedon Mr Matthew Idenhenvs Registered Trustees Ikoyi Club 1938 (2014), 45 NLLR. Pt 145, Pg 558@575.

The claimant therefore submitted that the Court should desist from giving any consideration to the unsubstantiated argument of the Defendant and uphold the case of the claimant.

On the second issue, the Claimant submitted that the Defendant erroneously submitted in its final address that the Claimant ought to consider its internal human resources department’s policy as ‘the general applicability of the provisions of the Handbook on gratuity has been restricted by the human resources department’s policy of the Defendant which states that the gratuity for the managerial staff shall be calculated based on the basic salary of the employee whilst the provision on gratuity in the Handbook would only be applicable to the junior staff of the Defendant’. The Claimant further submitted that the position of the Defendant cannot be more wrong as there is nowhere in the Claimant’s contract of employment that mentions or references any policy of the sort being the ‘internal human resources department’s policy. That it is impossible for the Claimant to be bound by an unknown document/policy which he has never laid eyes on and which existence was not known by the claimant until the commencement of this suit. Claimant placed reliance on the case of A.R Momoh v CBN (2008) 10 NLLR, Pt 25, Pg 62 @85.

The Claimant went on that it is indeed rather strange and unheard of in law for the Defendant to implore the Honorable Court to rely on a document that was not tendered and does not form part of the documents before the court neither has it ever been seen by the Claimant and his counsel in this suit, citing Mrs Elizabeth Anikevs Shell Petroleum Development Co Nig Ltd, (2011) NWLR Pt 1246, Pg 227@245 where the Court of Appeal held:

It is the claimants submission that the Defendant’s attempt in its pleadings and final address before the court to categorize its employees into junior and managerial staff for the purposes of denying them their full gratuity in the way and manner stipulated by the Handbook has been negated by the evidence of the Defendant’s witness under oath when she admitted that:

‘the policy was made after the employee Handbook and the policy is not before the Honorable court’It is the contention of the Claimant that a purported policy made after the Handbook cannot be binding on the Claimant as it does not form part of his contract documents given to him when he was offered employment by the Defendant. That at the time the Claimant accepted the offer of employment from the Defendant, the Claimant accepted based on the terms and conditions which were clearly spelt out in his letter of employment (Exhibit CWC-C2) and that the essence of a contract is to ensure that both parties’ rights and interests are well covered and to prevent a party from conjuring up all sorts of informal policies here and there. The claimant placed reliance on the decision of the Supreme Court in the case of CBN &Anor v Igwillo (2011) 24 NLLR, Pt 69, Pg 299@336

It is the claimant’s submission that if the Defendant is relying so much on the provisions of this ‘unseen’ policy, then it is only logical that they produce the document and tender same as evidence before this court and that this Court is not a Father Christmas and cannot be expected to act on a document not before it and which has never been seen by the Claimant, his counsel and most importantly the Honorable court.

The claimant further submitted that the Defendant has the onus and or responsibility of proving that the so called ‘policy’ exists by producing a copy of same and its contents before this Court, that the position of the law is clear that the burden of proof in civil cases is not static, that it shifts depending on the preponderance of evidence to the other party who would fail if no other evidence is adduced. Citing Mr Matthew Idenhenvs Registered Trustees Ikoyi Club 1938 (2014), 45 NLLR. Pt 145, Pg 558@577, the claimant submitted that the burden of proof has shifted to the Defendant to prove the existence of the contents of the purported policy as it affects the calculation of the Claimant’s gratuity in the Defendant Company.The claimant also referred this court to the case of Festus Keyamo vs Peter Folorunsho& 3 ors (2011) 9 NWLR Pt 1252, Pg 209@241

On the third issue, the claimant submitted that it is clear from the pleadings, evidence and documents tendered by the Claimant, that he has discharged the legal burden expected of him in proving his case before this Honorable Court. That from a holistic look at the materials placed before the honorable court, it will be discovered that the Claimant in this suit has supplied enough evidence to show to the court that there was indeed a contract of employment between him and the Defendant. The Claimant submitted that in his pleadings, he has averred to the fact that he was employed by the Defendant on the 8^th of September 2009 and that he left the defendant’s employment on the 12^th of November 2014 thus making it a total of 5 years and 1 month which he spent in employment with the Defendant. The Claimant went on that in support of this averment, he has also furnished the court with the evidence of all the documents given to him by the Defendant when he was given an offer of employment. The Claimant refers the court to Exhibits CWC –C2 (Letter of employment), and Exhibit CWK (Employee Handbook) tendered before this court during trial along with other Exhibits.

Claimant submitted that a study of pages 11 & 12 of the Exhibit CWK (Employee handbook) will reveal that the only provision on gratuity within the Defendant company is contained therein and what is applicable for its employees is clearly spelt out without any ambiguity whatsoever. That in applying the provisions of Exhibit CWK, the court will discover for itself that an employee who has spent 5 years and above in the employment of the Defendant is entitled to 12 weeks gross pay for each completed year of service and will also find that the Claimant who has spent a total of 5 years and 1 month is entitled to the same 12 weeks gross pay for each year of service.(breakdown of which can be found in the pleadings). The Claimant urged this court to align itself with the principle laid down by the Supreme Court in the case of AlhajiJimohAjagbe v LayiwolaIdowu (2011) 17 NWLR Pt 1276, Pg 422@448.

The Claimant further submitted that the Defendant in making a case for itself stated in its pleadings that the Claimant’s calculation of his gratuity ought not to have been based on the Employee Staff Handbook given to him but rather in accordance with the Defendant’s internal human resource policy but on cross examination, the Defendant again stated that the correct computation of the claimant’s gratuity is contained in Exhibit DWB (letter dated 3^rd of July 2017). To the claimant, his position remains that Exhibit DWB is nothing more than a response to the Claimant’s solicitor’s letter dated 23^rd May 2017 ( Exhibit CWO) written three years after the Claimant has left the employment of the Defendant. This, according to the claimant, cannot in any way or manner bind the Claimant and even more so, does not remotely form part of the contract of employment documents given to the Claimant at the start of his employment with the Defendant.

It is the Claimant contention that the Defendant has also failed to prove to this Honorable Court how the contents of a policy, purportedly called the ‘internal human resource department policy’ can override the provisions of their Employee Handbook and Conditions of service. That the Defendant in proof of its case neither supported its pleadings with the relevant document nor did it tender this ‘so called’ policy before the Honorable court.

In view of the above position of the law, and on the strength of evidence placed by the Claimant before this Honorable court, we urge the Court to hold that based on the failure on the part of the Defendant to show that any other document supersedes the Employee Handbook and Conditions of Service, and on the admission made by the defendant’s witness under cross examination that there is no document relating to the said policy before this honorable court, the Defendant has failed to legally discharge the burden of proof shifted on it to prove that the Claimant is not entitled to the balance of his gratuity in accordance with the provisions of page 11&12 of the Employee Handbook in the sum of Eight Hundred and Seventy Thousand Naira (N870,000)

The claimant Finally urge this Court to hold that the Claimant has successfully proved his case by showing that by virtue of the letter of employment and the Employee Handbook given to him, he had a valid contract of employment with the defendant which entitles him to the 12 weeks gross pay for each completed year of service and is thus entitled to the balance of his gratuity in the sum of Eight Hundred and Seventy Thousand Naira (N870,000)

DEFENDANT’S REPLY ON POINT OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS

In its reply on point of law to the claimant’s final address, the defendant submitted that the sole issue of law, which arises from the Claimant’s Final Address is:

“Given the Claimant’s admission of the existence of the Defendant’s Human Resources Department’s Policy on the payment of gratuity to employees in the managerial cadre of the Defendant in his Letter of Appeal dated 22^nd April 2015 (Exhibit CWP), can the Claimant now deny the existence of the Human Resources Department’s Policy on the ground that the policy was not in writing?

The Defendant submitted that Claimant’s argument revolves mainly around the non-tendering of the Defendant’s Human Resources Department’s Policy on payment of gratuity to employees in the managerial cadre and the insinuation that the policy does not exist. The Claimant then drew an analogy from cases of employment with statutory flavor where the contract was governed by Federal Public Service Rules to invite the Court to follow the reasoning in those cases. Further, the Claimant referred copiously to a number of cases on termination of employment to insist that, since the Court held in those cases that termination has to be in accordance with the basic contracts of employment, in this case too, gratuity has to be in accordance with the Offer of Employment Letter and the Staff Handbook, and nothing more.

The defendant also submitted that the law is elementary that facts which have been admitted need no further proof. Thus, it is submitted that the mere fact that the Claimant admitted the existence of the Defendant’s Human Resources Policy on the payment of gratuity of employees in the managerial cadre of the Defendant in his Letter of Appeal dated 22^nd April 2015 (“Exhibit CWP”) and appealed for a waiver of the application of the policy to him, goes to show that there was no need for the Defendant to establish the existence of the Policy since the Claimant had admitted its existence. To the defendant, it is grossly misleading for the Claimant to argue that the non-tendering of the Human Resources Department’s Policy document is fatal to the defence of the Defendant. The defendant went on that it is worthy of note that the Claimant did not deny that there were policies of the Defendant, which were binding upon him regardless of whether or not they were in writing. An example of such policy is the memorandum issued from the HR Department of the Defendant prohibiting couples from working in the Defendant’s organization and advising the affected couples to resign, one for the other. It was not, and could not reasonably be argued on behalf of the Claimant, that since the Memorandum of the HR Department of the Defendant was not contained in the Offer of Employment Letter to the Claimant, nor was it part of the Staff Handbook of the Defendant, it was not binding on the Claimant and the other staff of the Defendant. That notwithstanding that it came after the Claimant had been admitted into the Defendant’s employment, it was still fully binding on the Claimant as all other documents forming part of his contract of employment, which was why the Claimant complied and resigned accordingly.

Defendant further submitted that it is also instructive to state that the Defendant’s Memorandum dated 4^th August, 2014 admitted as “Exhibit CWI” did not explicitly state that the affected couples must resign, one for the other. That instead, it only directed the affected couples to report to HR Department of the Defendant for further directives. That the further directives from the HR Department was the advice to resign. It is submitted by the defendant that the said advice to resign, upon which the resignation of the Claimant took effect also formed part of the policies and notwithstanding that it is unwritten, is as binding as the other written terms.

It is reiterated therefore by the defendant that a contract of employment can be oral or in writing, unless there is a law requiring that a particular contract of employment must be in writing. Citing the case of Mobil Producing Nigeria Unlimited. & Anor. v. Udo Tom Udo [PC No. 542](2008) LPELR-8440 P. 67 Paragraph C-E

It is the submission of the defendant that the Claimant has not directed this Honourable Court to any law requiring the instant contract of employment between the parties to be in writing. Hence, the Defendant is perfectly entitled to make an additional oral contract to the existing contract of employment, be it in form of a policy or a directive. That the only requirement of the law is that the other party must be aware and there is abundant evidence that the Claimant in this case was well aware of the policy regarding computation of gratuities for the staff of the Defendant in the managerial cadre.

To the defendant, the two principal judicial authorities, cited by the Claimant in his Final Address are very helpful in resolution of the main issue before this court.Thedefendants therefore replicated and adopt them in this Reply. The first judicial authority according to the defendant is of the Court of Appeal in Festus Keyamo v. Peter Folorunsho& 3Ors. (2011) 9 NWLR (Pt. 1252) 209 at 241 where the Court held as follows:

“a trial court has the right within the precinct of the case before it to explore all angles and aspects of facts, look at them with an analytical mind, express its opinion and make its findings based on the evidence before it.”

The second dictum is of the Supreme Court, in Ajagbe v Idowu (2011) 17 NWLR (Pt. 1276) 422 at 448, where the apex Court, per Mukhtar JSC (as he then was), held as follows:

“a court in evaluating evidence must take into consideration every little aspect of it and the surrounding factors. It is not for the Judge to accept evidence hook line and sinker without weighing its preponderance and probability. As courts of justice, they should give careful consideration to the overall evidence before them and the claim as a whole. Civil suits are determined on preponderance of evidence and balance of probabilities.”

It is submitted by the defendant that a careful review of the evidence before this Honourable Court would reveal that the Claimant only embarks on a gold-digging mission to appropriate to himself more than he is in fact, entitled to. It is further submitted by the defendant that it is highly more probable that the Claimant was aware of the policy that as a manager it was his annual basic salary and not his annual gross salary that would be used in computing his gratuity, but was just feigning ignorance to hoodwink this Honourable Court into assuming that his case was justiciable. To the defendant, overall evidence before this Honourable Court and the surrounding circumstances of the case suggest that the Claimant who resigned as a manager had all reasons to understand that he was not entitled to any sum more than he was actually paid as his gratuity.

The defendant also submitted that the Claimant makes heavy weather of non-tendering of the policy document of the Defendant, if it ever existed, and that the non-tendering of same makes the defence completely bottomless. Submitting further that we have however demonstrated above that even if the policy was not reduced to writing, it is not fatal to the defence since it was communicated to the Claimant and he was well aware of the policy ahead of the time of instituting this action contrary to the wrong impression conveyed in his Final Address that he only got to know as of the time of instituting the action. His letter of appeal to the Defendant dated 22^nd April 2015, admitted in this case as “Exhibit CWP” clearly proves that he was aware of the policy, but he only appealed that the Defendant should not apply it to him because he only enjoyed his position as a Manager for 11 months before he was advised to resign as a result of another policy of the Defendant.

Defendant went on that assuming without conceding that it is legally imperative for any such policy to be reduced to writing, it is not mandatory to tender same before this Honourable Court for the purpose of establishing what has already been admitted. The defendant therefore submitted that documents are just a means of proving a fact, they are not facts in themselves and that facts admitted require no further proof. Citing section 123 of the Evidence Act and the case of Imana vs. Robinson (1979) N.S.C.C. Vol. 12 page 1 at 5; and Consolidated Resources Ltd V. Abofar Ventures (Nig) Ltd (2007) 6 NWLR (pt 1030) 221. The defendant went on that under cross-examination, the Claimant admitted that he wrote “Exhibit CWP” by which he pleaded with the Defendant that it should not apply the policy of calculating the gratuity based on his basic salary because he only stayed for 11 months as a manager. It is submitted by the defendant that the Claimant is deemed to have admitted the existence of the policy and he is therefore estopped from denying the existence of such policy now before this Honourable Court. We further rely on sections 27 and 169 of the Evidence Act. That it would therefore be a surprise for the Defendant that the Claimant be allowed to insist on the production of the policy as a document for the defence to avail the Defendant. The Defendant submitted that the existence of the policy is a fact in issue, but not in dispute. In Ajagbe v Idowu (supra), quoted by the Claimant, the Supreme Court, per Mukhtar JSC, held as follows:

“It is trite law that evidence of a fact that is not in dispute and that is relevant to a matter in controversy is good and credible evidence that can be relied upon for the determination of the issue in controversy. See Omoregbe v. Lawani 1980 3 – 4 SC. 108, Okupe v. Ifemembi 1974 3 SC. 97, and Durosaro v. Ayorinde 2005 8 NWLR part 927 page 407.”

To the defendant, it is therefore not the law, with due respect, that the Defendant’s non-tendering of a document supposed to be the policy is fatal to the defence. It is only when the content of a document is directly in issue that tendering the document becomes imperative, not when a contract, which need not be in writing, is meant to be established, as the policy in this case, which exists to the knowledge of the Claimant.

The defendant argued that it is curious that the Claimant is insisting that his contract of employment be restricted to his Letter of Offer of Employment (“Exhibit CWC1-C2”) and Staff Handbook (“Exhibit CWK”) and that as a written contract, no addition nor subtraction is to be allowed thereon. Should this Honourable Court accept this submission, it would mean that the gross salary which he claimed to be N108,000/month is incorrect. Rather, from Exhibit CWC1-CWC2, the Claimant’s gross salary is not more than N50,000/month. That it is mischievous to maintain that the Court should follow one principle for one purpose and abandon that same principle for another reason. That the Defendant has always maintained that this Honourable Court should, as it is entitled to, consider all pieces of evidence, oral and documentary, to help in resolving the issues in controversy. It is therefore the submission of the Defendant that the cases of Alade v Alic& Anor.;Idehen v Registered Trustees of Ikoyi Club; and Ezenwa v Katsina State Health Services Management Board sought to be relied on by the Claimant are unhelpful to his case as he cannot be allowed to approbate and reprobate at the same time.

To the defendant, the cases of Momoh v CBN and Mbonu v INEC also cited by the Claimant are of no relevance since they are cases of employment with statutory flavor. In such employments, the employers are not at liberty to add to the statutes which basically govern the employment relationship between the parties until such statutes are amended. That it is unhelpful to the instant case because the case before your Lordship is not on employment with statutory flavor. Rather, it is on a master-servant relationship basically regulated by mutual agreements of the parties which are flexible and amenable to change as opposed to an employment with statutory flavor which is rigid and can only be changed by an amendment to the relevant statutes or rules governing the employment relationship. To the defendant it is appreciable if the dicta of the courts in those cases insist on strict compliance with those documents and nothing more, since those documents embody the totality of all understandings between the parties.

The Defendant finally submits that the Claimant’s suit is unmeritorious and is therefore liable to be dismissed for the reasons already adumbrated in the Defendant’s Final Address dated 20^th December 2017 and the other reasons highlighted in this Reply.

COURT’S DECISION

I have carefully considered all the processes filed and the submissions of the parties. The case of the claimant is that the defendant had improperly computedand paid to the claimant gratuity upon the claimant’s resignation from the Defendant’s employment after spending over five years. The claimant is contending that his gratuity ought to have been computed based on Defendant’s Staff Hand Booki.e Exhibit CWK that governed the relationship between parties.

The Defendant’s argument is that the Claimant’s gratuity was properly computed and paid, that the Claimant resigned from the Defendant’s employment in a managerial cadre and that gratuity of Defendant ‘s staff that resigned on Managerial Cadre is computed based on the Defendant ‘s policy on gratuity of staff on managerial cadre and not on Exhibit CWK. To the defendant, it is entitled to make additional oral contract be it in the form of policy or directives.

In my opinion, only two issues present themselves for determination in this suit and they are:

Whether the terms of contract between the parties to this suit are both oral and written
Whether the claimant has made out a case for grant of any or all the reliefs being sought.

On the first issue, the claimant’s contention is that he was employed by the defendant vide exhibit CWC-C2 which the claimant said contained the terms of the employment. It is the claimant’s case that clause 15 of Exhibit CWC-C2 states that other terms and conditions applicable to the claimant will be found in the Employee Hand Book of Conditions of Service i.e Exhibit CWK.To the Claimant therefore, Exhibit CWK is essentially one of the contract of employment documents availed the claimant at the time he was offered employment by the defendant, citing A.R Momoh V CBN (supra), the claimant submitted that the defendant is bound by Exhibit CWK which the claimant submitted was and still is part of the employees condition of service.

The defendant’s contention is that a contract of employment can be oral or in writing except where the law requires it to be in writing. To the defendant therefore, it is entitled to make additional oral contract to the existing contract of employment, be it in form of policy or directive and that the only requirement of the law is that the other party must be aware. To the defendant, there is abundant evidence in this case that the claimant is aware of the policy regarding computation of gratuities for the staff of the department in the managerial cadre.

With respect to the learned counsel for the defendant, I find the above argument as misleading because I have carefully examined the contents of Exhibit CWC-C2 and Exhibit CWK and I did not see anything therefrom that permits the defendant to add oral contract to the existing contract of employment. Page 4 paragraph 4 of Exhibit CWK provides that:

“therules contained in these condition of service are subject to any alteration or correction at any time. However, suchchanges will be brought to the notice of the workers through notice board…”

It is my considered opinion from the above that Exhibit CWK has given room for alterations or changes and when ever such alterations or changes are made, the defendant’s employees will be notified on the notice board of the defendant’s company. It follows therefore from the above that the relationship between the parties to this suit is governed at the relevant time by written contract which comprised of Exhibits CWC-C2, CWK and such alterations or corrections made on Exhibit CWK which alterations or corrections must be brought to the notice of the defendant’s employees on the notice board and not by oral announcement as the defendant wrongly argued. I find and I so hold.The case of Mobil Producing Nigeria Unlimited.& Anor. V Udo Tom Udo relied upon by the defendant is of no moment in this case.It is settled law that under contract of employment the court and the parties have their duties, rights and obligations in the determination of such contract whether it is an employment with statutory flavor or under the common law. The court is not entitled to look outside the contract of service as to the terms and conditions. They must be gathered therefrom and/ or from other sources which can be incorporated by reference to the contract as the case may be. Courts have no jurisdiction to interpret or construe contractual documents more favourable to a party outside the terms and conditions provided in the documents. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that give right to contractual relationship in the interest of justice. See Daodu V U.B.A Plc. (2004)9 NWLR (Pt.878)276.

It follows from the above that the contract between the parties to this suit is purely written as can be gathered from Exhibits CWC-C2 and CWK, the documents that governs the relationship between the parties. I find and I so hold. It is settled law that where more than a single document provides for the terms, such documents must be construed jointly in order to have the correct and total account what the terms of the contract are. Once the terms are ascertained, it becomes mandatory for the court to ensure that parties to the contract had enjoyed their freedom of contract. See Ladipo V. Chevron (Nig.) Ltd. (2005) 1 NWLR (pt. 907) 277 CA.

Turning to the second issue for determination,the law is that when an employee or former employee complains that his employer is in breach of the condition of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said condition of service, he has the onus:

To place before the court the staff conditions of service or terms of the contract of employment; and
To prove in what manner the said staff conditions of service or terms of contract of service were breached by the employer.

The Claimant in an effort to prove reliefs a,b,c and d tendered exhibits CWC – C2 (claimant’s letter of offer of employment with the defendant) which under clause 15 states that other terms and condition applicable to the claimant will be found in the Employee Hand Book of condition of service, a copy of which will be supplied to the claimant by the Human Resources Manager on resumption of duty. The claimant also tendered the defendant’s employee Hand Book of Condition of Service i.e. Exhibit CWK.Item 12 at the page 11 – 12 of Exhibit CWKtitled gratuity status as rightly submitted by the claimant,among other things that: Associates having completed a period of three years of unbroken service to the Hotel, upon resignation or termination of His/her employment contract will be entitled to five weeks pay for every completed years of Service; five years and above but less than 10years 12 weeks gross pay for each completed years of service.

It is the claimants submission that he was employed on the 6^th of October 2009 vide Exhibit CWC-C2 and resigned from the employment of the Defendant on 12^th ofNovember 2014 which the defendant acknowledged in Exhibit CWJ and that having spent a total of five years and one month in Defendant’s company, the claimant as such qualities under the category of 5 years but less than 10 years and therefore is entitled to l2 weeks gross pay for each completed year of service. It is the claimants’ submission also that Exhibit CWK is essentially one of the contract of employment documents availedthe claimant at the time the claimant was employed by the Defendant citing A.R. Momoh V. CBN (2008)10 WNLR PT.25, Pg. 62 to 85.

The claimant averred at paragraph 14 of the statement of facts that for the purpose of computing his gratuity,his monthly salary is N108,000 which if divided by 4 weeks will give N27000 which if multiplied by 12 is N324,000 which amount if multiplied by the claimants year of service is N 1,620,000. The claimant sated at paragraphs 13 of Exhibit CWA-A3 (claimt’s statement on oath) that the defendant had paid to him a total sum of Seven Hundred and Fifty Thousand Naira only (N750, 000) as his gratuity without justifying the basis upon which the said sum was paid. The testimony of the Claimant i.e Exhibit CWA-A3 remained unshaken during cross examination. I find and I so hold.

The Defendant’s contention is that there is nothing wrong in the computation it had made of the claimant’s gratuity which stood at Seven Hundred and Fifty Thousand Naira only (N750, 000which according the defendant was based onthe Defendant’s policy on payment of gratuity which stated that the gratuity of Managerial Staff shall be calculated based on the basic salary of the employee concerned and that the said policy forms part of the claimants contract of employment. That if the claimant could rely on Exhibit CWI, the Defendant’s human resources policy on couple working in the same organization as the basis of the claimant’s resignation from the Defendant’s employment. To the Defendant, it simply goes without saying that the claimant must be bound by the Defendant’s policy on gratuity and that any other policy issued by the Defendant’s Human Resources, Department must as a matter of fact, form part of an employee’s contract of employment, citing Alhaji Mohammed Bola Audu V Petroleum Equalisation Fund (Management) Board &Anor (2010) LPELR – 3824 (CA

The Defendant maintained in paragraph 13 of its statement of defence that the correct formula for the calculation of the claimants gratuity in accordance with the Defendant‘s hand book (Exhibit CWK), the Defendant’s Human Resources Practice and letter dated 3^rd July 2017 is as follows:

Annual Basic Salary/52 x no of week’s payable x

No of years of service.

Exhibit DWB is the Defendant’s letter dated 3^rd July 2017, it is the Defendant’s response to the claimant solicitor’s letter of demand of 24rd May 2017 (Exhibit CWO). In Exhibit DWB, the Defendant stated that in view of the claimant elevation and in line with the Defendant’s policy, calculation of gratuity for manager grade is based solely on the annual basic salary of the claimant of which the claimant was informed as the claimant admitted in his letter of 22^nd April, 2015 (Exhibit CWP). The Defendant also stated in exhibit DWB that by its letter of 3^rd February, 2014 i.e. Exhibit DWC, the claimant’s annual basic salary was stated as N650,000 and going by the above formula, the claimant is only entitled to the sum of Seven Hundred and Fifty Thousand Naira only (N750, 0000 being gratuity due to him for his 5 years of service (September, 2000 – December, 2014) which sum the Defendant said it had promptly paid to the claimant.

In all the documents tendered by the Defendant in this case i.e. Exhibits CWP, DWA, DWB and DWC, there is nothing to convince this court of the existence of the said Human Resources Policy for calculation of the gratuity of the Defendant’s staff on managerial cadre. Apart from Exhibit CWP, there is nothing placed before the court by the Defendant to prove the existence of the alleged defendant’s internal policy on calculating gratuity of the Defendant managerial staff with basic salary. Can Exhibit CWP serve as the said policy? I think the answer is no. Exhibit CWP is a letter written by the Claimant to the Defendant titled “save my soul: Deprivation of terminal benefit”. I have carefully examined the contents of Exhibit CWP and to me by the said letter, the claimant was pleading with the General Manger of the Defendant to have regards to the Claimant’s outstanding payment and years of service to pay him the balance of his gratuity but the response the Claimant got was that the claimant fell on managerial cadre which resulted in the use of basic salary in calculating the claimants gratuity as against the others in which they used gross salary to calculate their gratuity.

I did not see, anywhere in Exhibit CWP where the claimant begged the Defendant not to calculate his gratuity based on the said policy, the claimant merely stated what he observed that would jeopardize his five years hardship and what he perceived as a trap to deprive him of his terminal benefit. This, in my humble view cannot relieve the Defendant of the evidential burden of proving its assertions on the existence of the alleged policy which forms the basis of calculating the claimant’s gratuity. I find and I so hold. The courts in plethora of cases have stated, a party who wants the court to believe in the existence of certain facts must establish those facts to the court in form of evidence. See Federal Mortgage Finance Ltd V. Ekpo (supra) @ P.20 paras. A-B

Exhibit DWA is the Defendant‘s witness deposition on oath in which the Defendant at paragraphs 12, 13, and 16 gave the basis upon which it arrived at the computation of the claimant’s gratuity. However, there is nothing placed before the court to buttress the Defendant’s assertion. On Cross Examination, the Defendant’s witness was asked to tell the court what the policy on which it based its calculations of the Claimant’s gratuity was., The DW said it was on the Defendant’s staff hand book i.e. Exhibit CWK.When asked to the look at Exhibit CWK and tell the court where the policy is, the DW said the policy was made after Exhibit CWK.When asked if the said policy was before this court, DW said the policy was not before this court.The Defendant also said in Exhibit DWA –A3 at paragraph 11 that the correct formula for calculation of the Claimant’s gratuity is contained in Exhibit DWB and repeated this under Cross Examination, but further confirmed that Exhibit DWB is only a response to the Claimant’s letter of demand and did not form part of the documents given to the claimant at the point of his employment.The DW read page 12 of Ex CWK under cross examination and confirmed that from October 6,2009 to November 12, 2014 amounts to 5 years 1 month that the claimant spent in the defendant’s employment.The DW also said under cross examination that the claimant Annual gross salary as per Exhibit DWC (defendant’s letter of annual appraisal to the claimant dated February 3, 2014) at the time he resigned was One million and three hundred thousand naira only(1.3m) However, when asked that 1.3 million if divided into 12 month will be N108,000 which if also divided in to four weeks will give N27,000 which represents the claimants gross pay per week.The DW said he could not be able to answer. It is glaringly clear from the foregoing that the defendant had no basis for computing the claimant’s terminal benefits using the claimant’s annual basic salary as against the claimant’s gross salary provided by Exhibit CWK. The response made by the DW under cross examination is a clear testimony of this fact. I find and I so hold. The law is that evidence elicited during cross examination be credible and admissible. See Halliru Lawal Malumfashi V Dauda Ibrahim Kurfi (2009) LPELR 8363.The DW statement on re-examination goes to no issue in my humble view as the Defendant has not placed anything before this court to justify the existence of the said policy, I find and I so hold.

I am satisfied and I hold that the claimant sufficiently placed before this court the evidence of his entitlement to the outstanding balance of his gratuity which evidence remained unshaken, uncontroverted and credible. The law is that any evidence that is unchallenged or uncontroverted, a trial court has a duty to act on it where credible. See Kaydee Ventures V The Hon Minister FCT & Ors. (2010) LPELR- 1681.Reliefs a, b, c, dand e are grantable and I so hold.

On the whole, and for all the reasons given, I hold that the claimant’s case succeeds and for the avoidance of doubt it is hereby ordered that:

The defendant shall pay to the claimant within 30 days of this judgment the sum ofEight Hundred And Seventy Thousand Naira Only (N870, 000) as the outstanding balance of the claimants gratuity.
Cost of this suit is put at Two Hundred Thousand Naira (N200, 000) only also payable within 30 days of this judgment.

3 Failure to comply with the above Orders within 30 days attracts 10% interest per annum.

Judgment is entered accordingly

…………………………………………

HON. JUSTICE MUSTAPHA TIJJANI

JUDGE