Mr. Suleiman Mozum Abubakar -VS- First Bank of Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICAL DICISION

HOLDEN AT ABUJA.

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

17^TH DAY OF MAY 2019 SUIT NO. NICN/ABJ/189/2017

BETWEEN:

Mr. Suleiman MozumAbubakar …………………………………..……………………………………………. Claimant

AND

First Bank of Nigeria Ltd ………………………………………………..………………………………………… Defendant

REPRESENTATION:

Efe G. Daniel, Esq; For the claimant, appearing with Collins D. Marchall,Esq; and DanladiAbiyaye,Esq;

N. Jimmy, Esq; For the defendant, appearing with U. Akpa, Esq; and IfeayiKalu,Esq;

JUDGMENT.

The claimant filed this action on 23^rd day of June 2017 vide a complaint accompanied with statement of facts, list of witness, statement on oath, list of documents and copies of the documents. The defendant with the leave of court entered formal appearance and then filed its statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the documents. In reaction, the claimant filed a reply to the statement of defence, additional written statement on oath.

By the complaint the claimant is prays for the reliefs stated hereunder as follows:-

A declaration that there existed a contract of employment between the claimant and the defendant and that all terms and condition of the said contract is properly documented in a document titled handbook.
A declaration that the defendant cannot unilaterally deviate or vary the content of its handbook under whatever guise and that all the terms and conditions of the contract stated in the defendant’s Handbook remains the existing and binding terms of contract between the claimant and the defendant as at time the claimant exited from the defendant’s employment.
A declaration that the claimant lawfully brought his contract of employment to an end under the terms and conditions clearly spelt out in the defendant’s handbook under voluntary early retirement scheme on the 25^th of January 2016.
A declaration that the claimant is entitled to payment of insurance claims following the auto accident he had while on official assignment for the defendant.
A declaration that the claimant is entitled to partake in the sharing of the defendant’s profit like any other staff of the defendant whom the defendant paid having worked from January to December of the year 2015 the period for which the payment is based.
An order of this Honourable court directing the defendant to comply with the terms and conditions stated in its handbook and pay the claimant the arrears of his unpaid severance benefit under the voluntary early retirement scheme in the sum of N240,642,875.60 (Two Hundred and Forty Million, Six Hunderd and Forty Two Thousand, Eight Hundred and Seventy Five Naira, sixty kobo) only being special damages specified as follows:-

PARTICULARS OF SPECIAL DAMAGES:

N71,798,510.10 (Eighteen Million, Three Hundred and Sixty Thousand, Two Hundred and Twenty Seven Naira, Eighty Eight Kobo) only representing the claimant’s gratuity for 29 years, seven Months.
N46,084,365.60 (Forty Six Million, Eighty Four Thousand, Three Hundred and Sixty Five Naira, Sixty Kobo) only representing one (1) year total annual emolument under voluntary early retirement scheme of the defendant.
N6,000,000.00 (Six Million Naira) only representing unpaid profit sharing for the year ended December 2015.
N100,000,000.00 (One Hundred Million Naira) only representing insurance claims for permanent disability following a ghastly road along Lokoja – Abuja Road on official assignment on the 23^rd day of March 2013.
N1,760,0kobo).00.00 (one million, seven hundred and sixty thousand naira) only being hospital medical bill paid at Fountain Side Hospital, Gwarimpa-Abuja for bone operation.
N15,000,000.00 (fifteen million naira) only being accumulated pension before the advent of Pension Act in 2004 in the hand of the Defendant.

AN INJUNCTIVE ORDER of this Honourable Court restraining the
Defendant from further harassing, intimidating, writing, threatening andvisiting the Plaintiff at home or wherever by external Solicitors, staff of the Defendant or any person(s) engaged by the Defendant as debts recovery agents or whosoever by whatsoever name called while the Defendant is still holding on to the Claimant’s entitlements until this matter is finally disposedoff and all entitlements paid.
AN ORDER of this Honourable Court directing the Defendant to pay the Claimant his share of the profit for the year ended 2015 in the sum of N6,000,000.00 (six million naira) only like his contemporary on same grade of Principal manager.
AN ORDER of this Honourable Court directing the Defendant to calculate and pay the Claimant his Insurance Claims of N100, 000,000.00 (one hundred million naira) only following the permanent disability that he suffered as a result of the auto crash having been insured.
AN ORDER of this Honourable Court directing the Defendant to reverse all interest it purportedly charged on the alleged Claimant balance of loan as Claimant’s entitlement naturally erases the said loan as at the time of Claimant exit.
AN ORDER of this Honourable Court directing the Defendant to pay the Claimant the sum of N20, ODD, 000 .00 (twenty Million Naira) only as general damages.
AN ORDER of this Honourable Court directing the Defendant to pay the
Claimant the sum of N20, 000, 000 .00 (twenty million naira) only as
punitive/exemplary damages.
AN ORDER of this Honourable Court directing the Defendant to pay 20% interest on all monies accruing to the Claimant from the date of his retirement from service up to the date of judgment in this case and 10% interest thereafter on the total amount awarded by this Honourable Court as post judgment interest.
The sum of N2,500,00 (two million, five hundred thousand naira)
only being cost of instruction, legal advice and filing of this suit.

THE CASE FOR THE CLAIMANT

The claimant testified for himself as CW1. CW1 testified that he joined the services of the defendant on the 7^th day of July 1986 and retired from the service of the defendant on the 25/1/2016 as a principal manager having served the defendant for 29 years 7 months. CW1, stated that during his service with the defendant he had worked in different branches and in different capacity until he voluntarily retired from the services of the defendant on the 25/1/16, while serving at Maitama Branch office, Abuja.CW1also testified that the defendant refused to pay him all his entitlement stated in the handbook for the staff that voluntarily resigns his/her appointment by payment of (1) one year total emoluments plus holiday allowance in addition to payment of gratuity. CW1 stated that at the time he apply for retirement he was 55 years of ageand had served the defendant for 29 years and 7 months and that he still had 5 years to serve before attaining the mandatory retirement age of 60 years and 5 years 5 months more for the mandatory 35 years stipulated in the defendant’s handbook as well as the Nigeria Labour Law. CW1, continued with his evidence that the defendant failed and refused to respond to the letter of retirement stated in paragraph 4 of the statement of facts. However, vide letter dated 5/2/16 the claimant received a letter from the defendant titled Re-retirement from service authored by the duo of Olamide O. Oshofolu and NkechiIvwurie, both of the defendant’s Human Capital Management Unit, head office wherein the defendant passively referred to the claimant’s letter of 23/1/16 but dwells heavily on the indebtedness of the claimant to the defendant which the defendant stated was N19,992,460.60 that must be settled within 30 days from the date of receipt of the said letter or else, the hitherto welfare loan earlier granted to the claimant while in service of the defendant will be re-classified as commercial loan and that same will run at the prevailing commercial interest rate per annum. As at the time of receipt of exhibit …. The defendant had not calculated and pays all his entitlements in tandem with the provision of the defendant’s handbook and had still not paid same till date. The claimant was not paid profit for the year ended December 2015. The payment is usually paid between the month of March and April of the preceding year before the defendant proceeds to hold its annual general meeting wherein it will publically declare its profit to all shareholders for the year ended in December of the previous year. The defendant has refused to pay the claimant the sum of N6,000,000.00 paid to his contemporaries for the year ended December 2015. The claimant also stated that he is entitled to payment of gratuity and that it was provided for in the defendant’s handbook. The method used in the industry for calculation of gratuity is the monthly basic salary of any retiree or any staff that qualifies for gratuity as at the time of retirement/exit multiply by twelve and by the number of year spent or simply put, annual basic salary multiplied by the numbers of years spent (1.e monthly basic salary x 12 x no of years or yearly basic salary x no. of years spent). The defendant is put on notice to produce the document containing the formula for calculating gratuity for employee approved by union and management as same shall be relied upon.The claimant stated that his one year total emolument is N46,084,365.60. the defendant s refused to pay the 1 year emolument provided for in the handbook till date for employee that retires early.

The claimant also stated that on the 23/3/13 while on duty in the employment of the defendant as the coordinator of Kogi, Kwara and Niger States, he was involved in a ghastly motor accident that nearly claimed his life wherein he suffered multiple fractures on both legs. CW1, stated that as a result of the ghastly motor accident he was hospitalized for several weeks at Cedarcrest Hospital following multiple fractures on his leg. CW1 also stated that the defendant refused to pay the claimant insurance claims/compensation for the permanent disability he suffered as a result of the Auto crash the claimant had while on official assignment even though the policy between the defendant and the said defendant had a robust insurance arrangement/agreement with its sister company FBN Assurance that handles the defendants insurance for it and its customers. It is stated that since the accident the claimant has been going in and out of hospitals following the complications and very excruciating pains he has been suffering from the leg that finally culminated into another major bone surgery at fountain Sode Hospital, Gwagwalada Abuja on the 27/1/17 at the cost of N1,760,000.00. all these expenses entails using his personal money as he is no longer entitled to enjoying free medical treatment under the auspices of the defendantand more so that he must see an orthopaedic or bone surgeon/specialist from time to time for the reason of his age and as a retiree that is yet to be paid his entitlements is more painful, worrisome and heart breaking having worked for 29 years and 7 months with the defendant immediately after graduating from the university as a youth. The claimant finds it difficult to climb upstairs without aid and assistance of somebody.

CW1, stated that he was entitled to unpaid pension in the sum of N15,000,000.00 being cumulative pension with the defendant before the commencement of the new pension reform that took effect from 2004. The claimant waited for several months after his voluntary retirement for the payment of his entitlements clearly spelt out in the defendant’s handbook inform of his gratuity and the one year total emoluments/holiday allowance for everybody who voluntarily resigns as well as the payment of his profit sharing for the previous year 2015 all to no avail.

Under cross-examination counsel CW1 stated that in paragraph 5 of the witness statement on oath that the defendant refused to him his entitlement stated in handbook on voluntary retirement. On 31/12/13 a sum of N7,213,330.00 was credited to my account is not gratuity. I spent 29 years 7 months. At the time we joined first Bank there is a Scheme called First Bank Provident Fund every staff is a member. We have been contributing 5% emolument while the employer (defendant) 10% every Months. If the 5% and 10% are calculated is more than what they paid. The sum of N7,423,338 paid to me on 22/6/14 is not entitlement. I did not complained because is my investment. Gratuity is paid after retirement. The money paid to me is while I was in service. I retired voluntarily on my own. First bank has designated hospitals for staff. While I was in service the two hospitals were not retained by the bank. Ceder hospital I was taken there while I was subconscious by the staff of the bank. While fountain side hospital I went there after I left service. On 23/10/13 I submitted bill of N700,000.00 bill which I was reimbursed. I equally claim N750,346.60 from defendant on 11/12/14 the amounts were paid to the hospital not to me for my medical treatment. I was not paid early retirement incentive by the defendant. Those who retired by the age of retirement fall within this retirement. I don’t know whether those who retired before age of 50 years fall within the early retirement, is the bank that knows. I know what I claim is what I am entitled to. While I was manager I took two loans. I was not able to liquidate the loans at the time of my exit from 2016 to 2017 I did not make any complaint to the bank or made demands. It is not right to say this suit was instituted because the bank has started pressuring me. U receive letter from the bank that I did not pay they would sue me if did not pay.

THE CASE FOR THE DEFENDANT.

The defendant called one witness DanjumaDaudaAkukabi, who testified as DW1. DW1 after being sworn identified his witness statement on oath and adopted it as his evidence in this case. DW1 also tendered two exhibits marked as DW1A and DW1B1-2. In the evidence contained in the witness statement on oath,it was stated that the claimantwas employed by the defendant on the 7/7/86 and was 55years old when he retired and after serving the defendant for 29 years and 6 months. The defendants had paid gratuity to exiting staff who have spent a minimum of five years in service and the computation is based on the annual salary, transport, housing and lunch allowances vis-à-vis the number of years of service of an employee. In ensuring that life after work is provided for, the defendant in 2013 came up with a creative retirement package whereby staff who were due for retirement or opted for voluntary retirement and even those who had few years to retire, were paid their gratuities by two instalments with effect from December 2013.

The essence of paying or receiving retirement benefit i.e gratuity before actual date of retirement was to enable intending retirees plan their future lives by applying their incomes into profitable business ventures prior to effective dates of their retirements. The claimant fell into the category of those who benefited from the retirement plan as well as so many other staff of the defendant including DW1. It was on that premise that the sum of N14,636,626 was credited to the account of the claimant by two instalments, viz; the sum of N7,213,313.00 on the 31/12/13 and another sum of N7,413,313 on the 2/6/14. The said sums were credited to the claimant’s account number 20044298540 with the defendant and the claimant dutifully and joyfully utilized same. The statement of account of the claimant evidencing payments of gratuity and the various withdrawals done by the claimant is hereby pleaded.The employee/employer relationship with the claimant as well as other staff who benefitted from the gesture continued until January 2016 when the claimant officially put his retirement letter and same was duly acknowledged and responded to by the defendant. As at the time of his voluntary retirement and as at the time his gratuity was credited to his account, there was no decision of management of the defendant urging any staff to retire with incentive. Retirement with incentive is not automatic. It is only applicable when management of the defendant, for strategic management/banking reasons, approves incentive for early retirement and this is a fact of common knowledge to all the defendant’s staffers.

As a policy of the defendant , profit share is not a part of staff remuneration. It is strictly at the discretion of the management of the defendant and as it were, profit share was not paid to any staff in the 2015, financial year and no staff of the defendant benefited from it. Prior to the claimant’s exit from the employment of the defendant he was involved in a motor accident on Saturday 23^rd March 2013 while he was on a private mission.

The defendant has a life assurance policy for all categories of her employees and the insurance policy covers full compensation in the event of death of an employee, while medical bills incurred by an employee from designated or approved hospitals are reimbursed. The claimant submitted a medical bill of N349,000 on 23/10/13 and another bill of N750, 000 on 11/12/14 and the two bills were promptly reimbursed by the defendant.

DW1, stated that all the entitlements of the claimant were duly paid. The claimant’s pension of N991,346.60 was duly transferred to the claimant’s pension fund administrator i.e premium pension, and same is reflected in the claimant’s retirement savings account statement. As it stands now it is the claimant that is indebted to the defendant in the cumulative sum of N16,604,162.93 as at July 2017 and not the other way round.

The indebtedness of the claimant to the defendant arose out of two home loan facility in the sum of N19,618,384.62 obtained by the claimant in April 2009 and another in the sum of N8,000,000.00 obtained on 2/10/12. It was stated that before his retirement, the claimant was able to pay a reasonable portion of the indebtedness leaving a balance of N10,604,162.93 and N5,487,070.53, respectively as at 13/7/17. On the whole it is the claimant that is indebted to the defendant as the defendant is not in anyway liable to the claimant.

Under cross-examination DW1 testified that he joined the services of the defendant with GCE ‘O’ Level on 15/7/85 I am manager by grade. The claimant joined service of the defendant on 7/7/86. Exhibit Dw1B1-2 was tendered under-cross examination through DW1. Gratuity was paid in 2013 and 2014 and the claimant retired in 2016. The gratuity was not paid in anticipation of retirement. Any employee that served for 5 years will be entitled to gratuity I heard of leaving of service benefit exhibit CW1D1-15. What has been credited to claimant incorporate what I read. Gratuity is made up of annual basic salary housing allowance transport allowance and luncheon allowance viz: number of years in service. I confirmed paragraph 5 of my deposition. CW1C1-67 paragraph. I am not encouraging employee to go contrary to handbook. Before pension reform Act N999,000 the pension accrued to claimant from effective date of pension reform Act to the time of retirement is what has been paid as gratuity. The claimant retired voluntarily. He is not entitled to additional payment upon voluntary early retirement. DW1 read Article 8.12.1 of exhibit CW1C1-67 and stated that what was stated there is at the discretion of the management. The claimant has been paid his entitlement as per exhibit DWA. Prior to 2007 claimant is not known to be disable person.the claimant was involved in an accident along Abuja Lokoja road while in the employment of the defendant. I know the bank has life Assurance Policy. I am not aware of group assurance policy. The is now deformed. I am not aware of any payment insurance to him. I do not know the terms of the loan taken by the claimant. I got to know from records against the claimant.

REPLY TO THE STATEMENT DEFENCE.

The claimant stated that the defendant’s claim of payment of gratuity was not true as what it paid into his account in 2013 was the proceeds of my investment over the years from a provident scheme called First Bank of Nigeria Plc provident scheme. An account is held for each individual that is managed by the trustees on behalf of the members for which the claimant claimed to be a member where investment income earned by the accounts will be fully allocated to members. That there are two designated distribution dates of 30^th September and 31^st March between these dates, the Trustees will announce interim interest rates to be added to the balances of members. The contribution in the scheme’s fund by both parties i.e the defendant and the claimant is based on total emolument (which is total annual basic salary, total annual housing allowances, total annual transport allowance and total annual lunch allowance) of members for which the claimant was one. The two instalment payment of N7,213,313.00 on the 31s of December 2013 and another sum of N7,423,313 paid on 2^nd day of June 2014 represents part of my entitlements that was not even properly calculated as provided for in the documents titled leaving services benefits which the defendants erroneously and intentionally termed gratuity payment. That every member contribute 5% of their monthly total emoluments whilst the bank contributes 10% of the member’s monthly total emoluments into the provident scheme. That the money allegedly tagged gratuity was never my gratuity as the said money was the proceeds of the 5% and 10% total emoluments contribution of my person and that of the defendant under the provident scheme over the years together with accrued interest as well as profit from the investment from the scheme. That it is common knowledge that gratuity is only paid to workers/servants who had either retired or resigned after several years from service. The claimant voluntarily resigned his appointment with the defendant only in January 2016 in compliance with the defendant’s handbook and so therefore the claims of the defendant payment of gratuity in 2013 is absurd and bizarre.

The claimant stated that he has not received any payment from the defendant since his letter of voluntary early retirement. The claimant complied with the requirement of defendant’s handbook on voluntary retirement. The accident involving claimant happened on a Wednesday while on duty 27/3/13.

THE SUBMISSION OF THE DEFENDANT.

The defendant distilled two issues for resolution. They are:-

‘‘Whether this Honourable Court has jurisdiction to adjudicate and grant reliefs d, g, I, and j sought by the claimant.’’
‘‘Whether from the pleading and evidence adduced in this Honourable Court, the claimant has established his case to be entitled to the reliefs sought.’’

ARGUMENT

ISSUE ONE

Counsel submitted that jurisdiction is lifeline of any proceedings. Where there is no jurisdiction, the entire proceedingno matter how well conducted is void pro tonto. In support of this submission counsel placed reliance on ADEGBOLA V OSIYI (2018) 4 NWLR (PT.1608) 10 PARAS.D-E and NGERE V OKURUKET XIV (2017) 5 NWLR (PT.1559) 440. Counsel also submitted that issue jurisdiction can be raised at any time even for the first time on appeal, without leave, whether at the Court of Appeal or at the Supreme Court because of its fundamental nature. In support of this submission counsel relied on APC V NDUUL (2018) 2 NWLR (Pt.1602) 1 at 27 paras. F-G. it is also the submission of counsel that jurisdiction of a court can be challenged on the basis of the claims or reliefs sought in the writ of summons or statement of claim etc. on this contention counsel cited the case of SUN INSURANCE (NIG.) PLC V UECC LTD (2015) 11 NWLR (PT.1471) 576 @ 598, PARAS.C and AKPAMGBO-OKADIGBO V CHIDI (2015) 10 NWLR (PT.1466) 171 @ 200, PARAS.A-B.

It is the contention of counsel that from the writ of summons and the statement of facts filed by the claimant in this suit, it is incontrovertible that reliefs d, g, I and j sought by the claimant against the defendant are not within the jurisdictional competence of this noble court. Counsel referred to section 254C of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and submitted that there is nothing in the constitutional provisions or any other law empowering this court to adjudicate on claims or reliefs bordering on loan transaction, debt recovery and insurance claim etc, as contained in reliefs d, g, I and j sought against the defendant in this suit. Counsel argued that juxtaposing the four reliefs with the provisos of section 254C of the constitution will unequivocally revealed that this court is devoid of jurisdiction to grant those reliefs. To buttress this contention counsel relied on the case of RODA V FEDERAL REPUBLIC OF NIGERA 2015 10 NWLR PT.1468 427 @ 466-467, PARAS. H-A, where the apex court says:

‘‘The law is also settled that a Court’s jurisdiction is prescribed, embedded or engraved in the statute which creates it. It usually circumscribed and not open ended and at large…..’’

It is the contention of counsel that in the instant case, while this court has unfettered jurisdiction to adjudicate reliefs a, b, c, e, f, h, k, l, m and n, the other reliefs as enumerated are outside the scope of jurisdiction of this court.

Counsel urged the court not to dabble into a simple contracts relating to insurance claims, loan transactions and debt recovery.

To support his argument on absence of jurisdiction to hear and determine the four reliefs being objected to counsel placed reliance on the decisions of this court in the cases of ADEWUNMI V ACCESS BANK PLC (2013) 34 NLLR (PT.102) 792 @ 881., SUIT NO. NICN/ABJ/197/2015, ADEYEMI OLUWAFEMI BADIRU V NIGERIA IMMIGRATION SERVICE & 5 ORS.(unreported) delivered on 11/7/2016 and OHIKHOKHAI V RADIOGRAPHER REGISTRATION BOARD OF NIGERIA (2015) 59 NLLR (PT.206) 624 and SUIT NO. NICN/ABJ/362/2016, MR. MOHAMMED ABDULRASHEED V FIRST BANK OF NIGERIA LTD (unreported) delivered on 29/11/18.

Counsel commended the above decisions of this court and urged the court to hold that it lacked jurisdiction to entertain reliefs d, g, I and j of the claims.

ISSUE TWO

In arguing issue two counsel submitted that section 133 of the Evidence Act 2011, the burden of proving various claims/reliefs submitted to this Honourable Court by the claimant lies on the claimant. In support of this submission counsel relied on the case of CBN V ARIBO (2018) 4 NWLR (Pt.1608) 130 @ 166, Paras. B-D, where the Supreme Court held thus:-

‘‘He who asserts must prove. In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading.’’ Counsel also cited UNIVERSAL TRUST BANK NIGERIA LTD V AJAGBULE (2006) 2 NWLR (PT.965) 447, OMISORE V AREGBESOLA (2015) 15 NWLR (PT.1482) 205.

Counsel contended that a critical look at reliefs a-e of the claims will show that they are declaratory in nature and the Supreme Court has made it categorically clear that a party seeking for declaratory reliefs must adduce credible, cogent, convincing and unequivocal evidence to prove his case. Counsel referred to the case of CHIEF GAFARU AROWOLO V CHIEF SUNDAY EDUN PLOWOOKERE (2011) 18 NWLR (Pt.1278) 280 @ 304, paras. D-F, where it was held that :

‘‘A declaratory action is discretionary in that by such action a plaintiff prays the court to declare an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim. A person claiming such right must show the existence of a legal right subsisting and in future, and that the right is contested. What would, entitle a plaintiff to a declaration is a claim which a court is prepared to recognize and if validly made, it is prepared to give legal consequences to. The burden of establishing a case based on declaration rests more on the plaintiff whose evidence must be credible, convincing, positive, affirmative and unequivocal in support of his case. Such evidence must be in accordance with his pleadings.’’

Counsel submitted that to demonstrate the severity and the uncompromising burden of proof placed on a party seeking declaratory reliefs, the Supreme Court has consistently opined that a party seeking declaratory reliefs must adduced credible and cogent evidence to prove his case even where the defendant has admitted the fact in issue in his pleadings. GE INT’L OPERATIONS (NIG) LTD V Q. OIL & GAS SERVICES LTD (2016) 10 NWLR (Pt.1520) 310@ 330, paras.D-E.AGI V PDP (2017) 17 NWLR (Pr.1595) 386, BULET INTL. (NIG) LTD VOLANIYI (2017) (Pt.1594) 260.

It is submitted that relief (a) is not grantable in that the handbook cannot be said to contain all the terms and condition of the contract. A perusal of exhibit CW1C1-67will show that it does not and cannot contain all the terms and conditions of the contract between the claimant and the defendant. The claimant did not even plead those specific terms and conditions for easy reference by the court before making the declaration sought. Counsel submitted there was nowhere in the handbook where the name of the claimant was mention. There was also nothing in the exhibit stated terms of contract of employment such as post or position, commencement date of employment and the yearly or monthly salary of the claimant. It is therefore in appropriate for a court of law to declare that all the conditions of the contract between the parties are properly documented in a document titled handbook.

On relief (b) counsel urged the court not to grant it as the claimant did not lead any evidence to show all the terms and conditions of the contract stated in defendant’s handbook he merely dumped the 67 pages document without leading evidence to show the page or paragraphs containing all the terms and conditions alleged. Counsel submitted urging the court to declare that ‘the defendant cannot unilaterally deviate or vary the content of its handbook under whatever guise’ is vague, unspecific or speculative as there is nothing in the pleadings of the claimant to show how or where the content of the defendant’s handbook was unilaterally deviated or varied. LUNA VV COP (2018) 11 NWLR (PT.1630) 269, ONOVO V MBA (2014) NWLR (P.1427) 391. Counsel contended the clamant is not entitled to relief (b)

On relief (c), is not grantable. Though there is no dispute that the claimant brought his contract of employment to an end, the contestable area is where the claimant alleges that the contract of employment was brought to an end under the terms and conditions clearly spelt out in the defendant’s handbook under voluntary early retirement scheme on the 25/1/16. In making this claim claimant failed to refer the court to the portion, page or paragraph of the handbook where the ‘terms and conditions’ are ‘clearly spelt out in the defendant’s’ handbook under voluntary retirement scheme. By implication the claimant is expecting the court to go through the 67 pages document I.e exhibit CW1C1-67 to look out for the terms and conditions of the claimant’s contract of employment and ascertain whether or not they are in harmony with the facts pleaded and evidence adduced by the claimant before making the declaration sought. Counsel submitted it is the duty of party who tender bulk document to relate it same to specific aspects of his case. ANDREW V INEC (2018) 9 NWLR (PT.1625) 507, SAEED V YAKOWA (2013) 7 NWLR (PT.1352) 124. Counsel argued that though claimant has testified that he retired voluntarily and has not been paid his entitlement under the handbook, he did not specifically adduced evidence to specific page or paragraph of the handbook that support his claim. He merely dumped the document to the court and expect the court to do the rest for him.

It is submitted a court of law as held in KAYIL V YILBUK (20115) 7 NWLR (PT.1457) 26, cannot make a case for a party. It is in fact the duty of the court to confine itself to the case of the parties, nothing more and nothing less. OYEYEMI V OWOYEYE 2017 12C NWLR PT.1580 364.

On relief (f), and concomitant particulars of special damages are amorphous in the way they are couched. The claimant is urging the court to use terms and conditions in the staff handbook and pay the claimant the arrears of his unpaid severance benefit under the voluntary retirement scheme in the sum of N240,642,875.60 being special damages viz; gratuity and pension by the defendant.

The question begging for answer under this claims is N6 M unpaid profit share, N100 M insurance and N1,760,000.00 medical bill part of arrears of the claimant’s unpaid ‘severance benefit’ under the voluntary early scheme? The answer is in the negative. i.ethe term severance benefit whether in arrears or as at when due, does not include profit share, insurance claims and hospital bills, because they are not part of staff remuneration. They are referred to as incentives. On this contention reliance was placed on section 124(1) (a) of the Evidence Act 2011. If this court hold these are not part of severance benefit then, the question to answer is has the claimant pad his severance benefit by the defendant.

In paragraph 17(1) (c) of the statement of defence it was stated that the defendant came up with a creative retirement package where any employees, like the claimant, who opted out for voluntary retirement even though they had few years to retire, were paid their gratuities by two instalments before the actual retirement period. The essence of paying retirement benefit i.e gratuity before the retirement date was to enable intending retirees plan their future lives prior to effective dates of retirement. It was stated that the claimant was one of those who benefitted the statement of account was tendered as evidence. The claimant’s account was credited and it was made clear the payment was for gratuity. DW1 also admitted benefitting from such scheme and his evidence was not challenged under cross-examination. The evidence is deemed admitted. On this submission reliance was placed on University of Ilorin Teaching Hospital V Abegunde (2015) 3 NWLR (Pt.1447) 421. It was argued denial of the claimant is not enough. Counsel relied on the case of NEPA V AUWAL (2011) 5 NWLR (Pt.1241) 574 @ 595; where it was held that:

‘‘Pleadings do not translate into evidence. The plaintiff must lead evidence in proof of the averments in the pleadings. Where there is no evidence to back up the pleadings, such averments are deemed abandoned and cannot take the place of evidence in court.’’

It is submitted by counsel that apart from the claimant’s inability to prove the money paid to him was proceed of investment of the claimant from a provident funds scheme, there are several facts giving credence to the defendant’s claim that the claimant was paid his severance benefit. The facts are:

The claimant tendered letter of resignation exhibit CW1Awithout demanding or requesting for severance benefit and yet he claims he was not paid prior to his retirement.
The defendant acknowledged receipt of the claimant’s resignation letter i.e exhibit CW1L and requested the claimant to liquidate his indebtedness to the defendant and the claimant did not demand for his severance benefit or ask for a set off from his purported N240,642,875.60 arrears of severance benefit. Even the stern warning at paragraph 4 of the letter exhibit CW1L that; ‘’your account has been modified to allow debit interest charges..’’ appears not have been strong enough to prompt the claimant to ask for his retirement benefit or a set off as the case may be.’’

It took a period of full year for the claimant who has been hospitalized and had huge medical bills to settle to remember his severance benefit as evidence in the request for payment by Efegov&Associates via exhibit CW1I1-2.

As a former banker, the claimant cannot claim that he did not see or notice that the transaction details or purpose for payment of N14,636,626 credited to himby the defendant in two instalments was tagged ‘’gratuity’’. He gladly utilized the money without questioning why or how his purported ‘provident scheme’ money metamorphosed into gratuity’.
The claimant tendered exhibit CW1B1-2 to show his gratuity was not paid but ended up admitting that the payment in two instalment represent part of the entitlements of the claimant that was not even properly calculated.

Consistency is the rule in pleadings approbation and reprobation is not allowed. In support of this contention counsel for the defendant relied on the cases of ASABORO V PAN OCEAN OIL CORP (NIG) LTD (2017) 7 NWLR (Pt.1563) 42, A. T. LTD V A. D. H. LTD (2007) 15 NWLR (Pt.1056) 118. Counsel submitted relief f, as couched is not grantable. The court cannot assume the role of a mathematician or accountant to engage in subtraction or addition of money for a party. In support of this contention counsel cited and relied on the case of IGHEDO V PHCN PLC (2018) 9 NWLR (Pt.1623) 51 “80, where the decision in GANIYA BADMUS & ANOR V ABEGUNDE (1999) 11 NWLR (Pt.627) 493 was cited with approval. The court held:

‘‘where a plaintiff sets out to adduce evidence in proof of the special damages claimed by him and the evidence being deficient or unsatisfactory is rejected by the court, that should put an end to the claim. The trial court is not entitled to embark upon his own assessment of the special damages using his conceived parameters in place of evidence.

Relief (g) not grantable dealt with under objection. Apart from issue of jurisdiction, it is argued the relief is at large, wide and unspecific.

Relief (h) and (I), are in the realm of special damage which require a higher standard of proof. ENEH V OZOR (2016) 16 NWLR (Pt.1538) 219, BRITISH AIRWAYS V AYOTEBI (2014) 13 NWLR (PT.1424) 253 at 258, paragraph A-F.

Relief (j), is hypothetical and speculative should be refused.

Relief (k) and (l), damages are not awarded as a matter of course. It is not meant to give windfall to the claimant. It must be justified and for it to be justified, the award must be predicated in sound principle of law. GE NTL OPERATION NIG.LTD V Q OIL & GAS SERVICES LTD (2016) 10 NWLR (PT.1520) 304, ADENIRAN V ALAO (1992) 2 NWLR (PT.223) 772. In the case at hand claimant has not by the defendant adduced any evidence to prove any wrong done to him. In the absence of any wrong no exemplary damages can be granted which is punitive in nature.

Relief (m), interest no evidence adduce to establish necessity for granting interest.

Relief (n), no evidence adduce to establish how claim for cost

In concluding, counsel urged the court to dismiss the suit for frivolous, preposterous and as the erudite

THE SUBMISSION OF THE CLAIMANT

The claimant submitted three issues for determination. They are:

Whether there is a legally binding contract between the claimant and the defendant.
Whether there are legally admissible evidence that substantiate the claims of the claimant before the court.
Whether the claimant is not entitled to his claims having successfully proved his case orally and supported with documentary evidence.

ARGUMENT

ISSUE ONE:

It is the submission of counsel that vide exhibit DWB1-2, the claimant commenced his contractual relationship with the defendant. The claimant voluntarily exited the services of the defendant on the 25^th day January 2016, under the voluntary early retirement scheme of the defendant exhibit CW1A. The voluntary early retirement is as enunciated in the defendant’s handbook exhibit CW1C1-67.

It is the contention of counsel that the contract between the claimant and defendant is a legally binding and enforceable contract of service that was reduced into writing by the parties as evidenced in exhibits DW1B1-2, CW1C1-67 and CW1D1-15 and CW1A. (the letter of appointment, the handbook of the bank, the booklet titled leaving service benefit and the claimant’s letter of retirement). Counsel submitted that the court cannot go outside these document in determining the terms stipulated or agreed therein in deciding the right and obligations of the parties. On this contention the case of BUKAR MODU AJI V CHAD BASIN DEVELOPMENT AUTHORITY AND 1 OR (2015) 16 NWLR 16 NWLR (Pt.1486).

It is also contended that parties are bound by the terms of their contract freely entered and parole or oral evidence cannot be invoked to contradict , add to or vary the terms of a written agreement. RESORT SAVINGS & LOANS LTD AND 1 OR.V SKYE BANK PLC & 1 OR.(2015) 17 NWLR (Pt.1488), IGNOBLS HOTELS LTD V BENTEC ELECTRICAL LTD (2015) 1 NWLR ((Pt.1441).

It is the submission of counsel that there is no dispute that the contract of service between the claimant and the defendant is regulated by exhibit CW1C1-67 as espoused at pages 5 and 6 of the handbook. Counsel submitted that the said condition of service provided for voluntary early retirementat page 26, paragraph 1(a). it is also the submission of counsel that section 8.12.1 paragraph (a) of the condition service exhibit CWD1-67 provisions for payment of one year total emoluments plus holiday allowance in addition to payment of gratuity was made for whosoever qualifies under the scheme. It is equally submitted that at page 63, section 155.10 paragraph 1(b) make provision for payment of compensation to any staff that suffers permanent disability while still in service of the defendant as a result of any form of accident as all staff in the defendants employ were fully insured. Counsel also contended that at page 30 section 9.2 paragraph 1(i)and (ii) of exhibit CW1C1-67 provides for variable pay otherwise called pay for performance (PFP).

It also argued that paragraphs 1, 2, and 3, at page 2 of exhibit DW1B1-2 dated the 11^th day of January 1986 stated categorically that the claimant is entitled to the defendant generous non-contributory pension scheme, and some other entitlements before the advent of new pension reform Act. It is further argued that the claimant served for 18 years and was already pensionable under the non-contributory pension scheme of the defendant stated in exhibit DW1B1-2 before the advent of the new Pension Reform Act. Section 15.6 paragraph 6 of page 62 of exhibit CW1C1-6 states that the claimant contributes 8.5% percent while the defendant contributes 16.5 percent of the claimant’s total emoluments as monthly pension effective from 2004 under the new Pension Reform Act 2004 totalling 25% of claimant total emoluments monthly as pension contribution.

It is submitted by counsel that exhibit CW1D1-15 defines total emoluments of any staff of the defendant at page 5 paragraph 3.4 as:

Annual Basic salary
Annual housing allowance
Annual Transport allowance
Annual Luncheon Allowance.

It is the submission of counsel that exhibit CW1C1-67 and exhibit CW1D1-15, are documents that emanates from the defendant to all staff including the claimant and in law the most reliable evidence is documentary evidence. In support of this contention counsel relied on the case of FELICIA AKINBISADE V THE STATE (2006) 17 NWLR (Pt.1007) 188.

It is also the contention of counsel that extrinsic evidence will generally not be acceptable to vary the terms of agreed upon. ANDREW NWEKE OKONKWO V COOPERATIVE & COMMERCE BANK NIG.PLC & ORS.V (2003) 2 SCNJ, UBN V OZIGI (1994) 1 NWLR (PT.333) 400.

It is submitted that the assertion in paragraphs 7 and 8 of the statement of defence that the claimant has been paid gratuity in two instalment while he was still in service of the defendant is laughable and lack substantiality.

It is the contention of counsel that there was offer and acceptance between the parties when the claimant accepted and commenced work with the defendant. There was a reciprocal offer and acceptance again between the parties when the claimant tendered his letter of voluntary early retirement on that penultimate 25/1/16. That is the fulcrum on which the law of contract rotates. In support of this contention counsel relied on the cases of JALCO LIMITED V OWONIBOYS COMMERCIAL SERVICES LTD (1995) 4 SCNJ 256, NWAJI V COASTAL SERVICES NIG. LTD (2004) ALL FWLR (PT.219) 1150, GOODWILL & TRUST INVESTMENT LTD (2011) ALL FWLR (PT.576) 517.

Counsel submitted that in the case of UNILORIN TEACHING HOSPITAL V ABEGUNDE (2015) 3 NWLR (PT.1447) 15, the Court of appeal held that; where oral evidence of adverse parties are in conflict, documentary evidence should be used as a barometer to determine their veracity.

Counsel submitted that the claimant has complied with the defendant’s handbook exhibit CW1C1-67 in quitting services of the defendant.

Counsel urged the court to hold that there was and still a binding and enforceable contract between the claimant and the defendant as shown in exhibits DW1B1-02, CW1C1-67, and CWD1-15. The defendant cannot unilaterally change, alter or handpicked favourable clauses from the exhibits to the detriment of the claimant. On this contention counsel relied on the cases of UBN V OZIGI (1994) 3 NWLR (PT.333) 385, FBN V AKINYOSOYE (2005) 5 NWLR (PT.918) 340.

Counsel also submitted that where oral evidence of parties is inconflict, documentary evidence should be used as a barometer to determine their veracity.

Counsel contended by section 1 page 1 of exhibit CW1C1-67, contain policies and benefits programmes of the defendant. It containterns and conditions of service as well. Counsel relied on SAVANNAH SUGAR CO. LTD V ZACKSON LTD (2019) LPELR 46382(CA) on terms and conditions of contract.

ISSUE TWO

It is the contention of counsel that in proof of his case the claimant tendered his letter of appointment, the handbook of the defendant as well as medical bills obtained from two different hospitals in Abuja i.e exhibit CW1F1-3 and exhibit CW1G attesting to his health as well as his letter of voluntary early retirement application to the defendant were tendered in proof of the claimant’s claims. The letter of appointment dated 11/1/1986 and marked as exhibit DW1B1-2 stated at page 2, paragraph 1 thus: ‘on confirmation as a permanent staff, you will become eligible for membership of our generous non-contributory pension scheme’

It is submitted as at 2004 when the new pension reform Act came into force as the law regulating contributory pension in Nigeria, the claimant has already served the defendant for 18 years from January 1986 to 2004. The claimant is legally entitled to monthly payment of pension from the defendant under the defendant generous non-contributory pension scheme stated at paragraph 1, page 2 of exhibit DW1B1-2, the letter of offer of employment which the defendant had not been paying the claimant till date.On this submission counsel placed reliance of the case of IGNOBIS HOTELS LTD V BENTEC ELECTRICAL LTD (2015) 1 NWLR (Pt.1441) where it was held parties are bound by their terms of their contract. If any dispute should arise with respect to the contract, the terms in any documents which constitutes the contract are invariably the guide to its interpretation.

Section 15.6 at page 62, paragraph 6 of exhibit CW1C1-67, (defendant’s handbook) the claimant contributes 8.5% of his monthly total emoluments while the defendant contributes 16.5% (totalling 25%) under the new pension reform Act. Exhibit CW1D1-15 (leaving service benefits explanatory booklet) defines what total emoluments is at paragraph 3.4 at page 5 of the booklet.

Exhibit CW1E is pay slip of the claimant. The claimant’s monthly total emoluments were as follows:-

Basic monthly salary N202,820.65
Basic monthly housing allowance N111,524.33
Basic monthly transport allowance N97,812.50
Luncheon allowance of N26,833.33

Vide paragraph 6 of section 15.6 at page 62 of exhibit CW1C1-67, the claimant contributes 25% of the above stated allowances monthly as his pension contribution under the new pension reform Act. Counsel contended that the defendant embraced the provisions of the pension reform Act, thus why members of staff of the defendant contributes 8.5% of the basic salary, transport, housing and lunch while the bank contributes 16.5%. it is submitted 25% of the claimant’s monthly total emoluments as shown on exhibit CW1Etranslate to N109,747.70, which also translates to N1,316,972.42 annually. The claimant voluntarily retired from the services of the defendant in January 2016. The clamant had since the commencement of new pension reform Act contributed for 12 years paying the sum of N1,316,972.42 annually by virtue of exhibit CW1C1-67, section 15.6 at page 62 and exhibit CW1E. As at the time of the claimant exit from the service of the defendant, he had contributed a total sum of N15,803,669.00. Counsel argued parties are bound by their agreement.

Counsel referred to paragraph 13 of the statement of defence where in the defendant claimed to have remitted N991,346.60 to claimant’s pension fund administrators on 20/6/2007 which it claimed was the claimant’s pension for 18 years. Counsel submitted assuming but without conceding that what was stated was indeed the payment ofpension paid to claimant for the 18 years he served the defendant before the advent of Pension Reform Act. The question begging for answer is, where is the contribution of the claimant and that of the defendant stated at paragraph 6 at page 62 of exhibit CW1C1-67 from 2004 till January 2016 (a period of 12 years) when the claimant voluntarily retired from the services of the defendant? The defendant did not tender any document nor lead any iota of evidence whatsoever to prove that it remitted any amount at all as the claimant pension to any institution for the 12 years the claimant and the defendant contributed a whooping 25% i.e a quarter of the claimant monthly total emoluments that is made up of basic salary, housing, transport and lunch allowance). Counsel argued mere traverse is not enough without proof that the pension contribution of the claimant under the pension reform Act CAMEROON AIRLINE V OTUTUIZU (2011) 4 NWLR (Pt.1238) 512, where the court held that averments in pleading are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleaded are true.

It is the submission of counsel that he who assert must prove. The claimant proved before the court that the defendant is yet to pay him his pension contribution which defendant claimed it embraced at section 15.6 at paragraph 6 at page 62 of exhibit CW1C1-67 (the defendant’s handbook) totalling N15,803,669.00para 22 of statement of facts dated 23/6/17. Counsel submitted that the failure to deny paragraph 22 is deemed admission. NAPOLEON S. ORIANZI V ATTORNEY GENERAL RIVERS STATE & 3 ORS. (2017) 6 NWLR (Pt.1561), ADESANOYE V ADEWOLE (2000) 9 NWLR (Pt.671) 127, SHUGABA UMARU GANA V FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (Pt.1633).OKOEBOR V POLICE COUNCIL (2003) 12 NWLR (Pt.834) 444, OMOREGBE V LAWANI (1980) 3-4 SC and MANAGGE V GWAMMA (2004) 7 SC (Pt.ii) 76, (2004) 14 NWLR (Pt.893) 323.

According to counsel the claimant who exited the services of the defendant after 29 years 7 months of unblemished service. Vide paragraph 1.3 at page 4 of exhibit CW1D1-15 anybody that serves for 5 years and upward in the employment of the defendant is entitled to payment of gratuity. Counsel also contended that it is notorious fact that world over that gratuity is paid to workers only at the point of exit or after exit. According to counsel it is laughable, bizarre, ridiculous, criminal and unimaginable on the side of the defendant who credited partially (not all) into account of the claimantall that the claimant labored to save as revealed in exhibit CW1D1-15 at paragraph 1 at page 5 for 29 years 7 Months, kept with the defendant as TRUSTEE to be paid in two separate instalments clearly stated at paragraph 3.2 at page 5 and paragraph 6 page 8 in exhibit CW1D1-15 is what the defendant suddenly turned round and termed/christened gratuity which it claimed it paid to the claimant account two years before the claimant voluntarily retired.

Counsel submitted vide exhibit CW1D1-15, at page 7 gratuity is entirely financed by the bank. Counsel submitted what the defendant paid in two instalments is not gratuity but proceeds of joint savings which is kept with the defendant as a trustee as revealed at paragraph 1 at page 5 under the FBN provident Scheme in exhibit CW1D1-15. Investment income earned by the accounts will be fully allocated to members. There are two distribution dates 30^th September and 31^st March, between these dates the trustees will announce interim interest rates to be added to the balances of exiting members. At page 7 of exhibit CW1D1-15 it was provided in section 2 and 3 that each member will at exit from service be entitled to a gratuity, in addition to the benefit.

Counsel contended that the defendant has not denied being in possession of the claimant’s 15% total emolument monthly contributions spanning 29 years and 7 months together with accrued interest that the defendant is expected to pay in two tranches to claimant stated in exhibit. DW1 has admitted the existence of the exhibit as a document that emanated from the defendant. The claimant entitlement under this head is N23,310,827.60 out of which the defendant merely paid N14,636,626,00 leaving a whooping balance of N8,674,201.10.

Counsel submitted that going by the defendant paragraph 17(b) of statement of defence, how many years did the defendant used in calculating the defendant’s gratuity in 2013 while claimant was still in service.

On method of calculation of gratuity the claimant submitted that the defendant in paragraph 17(b) has supported the evidence of claimant on that. ALHAJI LASISI SALISU & 1 ANOR. V ALHAJI ABBAS MOBOLAJI & 2 ORS. (2016)15 NWLR (PT.15350 , where it was held a plaintiff can rely on defendant’s pleading and evidence which support his caseand court is allowed to act on it.

It is the contention of counsel that the claimant has adduced evidence before the court n proof of his entitlement to payment under voluntary retirement benefits which is one year total emolument less variable pay i.e total guaranteed pay including location and leave allowance/holiday travel allowance this is in addition to the normal entitlements of eligible staff under the bank existing pension scheme.Page 26 under article 8.12.1(a) exhibit CW1C1-67. The defendant has admitted that the claimant exited the system in compliance with the handbook. See exhibit CW1A. Counsel submitted that the claimant has proved that the defendant has refused to pay the claimant his one year total emolument plus leave and holiday allowance provided for in exhibit CW1C1-67, conditions of service.

According to counsel the claim of N6,000,000.00 was made pursuant to so section 9.2 at page 30 of exhibit CW1C1-67. The defendant has consistently paid claimant profit sharing and performance over the years exhibit DW1A was relied upon at page 51 on 24/4/12 the defendant paid the claimant the sum of N4,142,900.69 and at page 64 of exhibit DW1A on 31/1/13, it paid N3,000,000.00at page 66 on 19/4/13 claimant was paid N4,863,658.71 at page 75 on 4/4/14 claimant was paid N4,141,228.17 and N1,215,914.68 (N5,357,142.85. the current claim is for year ended 31/12/15 while the claimant was still in service of the defendant as principal managerthe next grade/rank to Assistant General Manager.

Counsel submitted it is not in dispute claimant worked up to December 2015. It is also not in dispute that the defendant did not declare loss in its operation during the year ended 2015and so cannot unilaterally deviate from the provision of exhibit CW1C1-67 under variable pay clearly state in section 9.2 at page 30. In FELICIA AKINBISADE V THE STATE (2006) Niki Tobi, stated that when documentary evidence supports oral evidence, the oral evidence becomes more credible. This is so because documentary evidence serves as a hanger from which to access oral testimony.

On claim for N100,000,000.00 is for permanent disability following the auto accident that he was involved in along lokoja Abuja road while still in service of the defendants coordinator for kogi, kwara and Niger states while on official assignment on 27/3/13. The claim is predicted on section 15.10 at page 63 of the handbook exhibit CW1C1-67. Counsel submitted DW1 testified that claimant was not disableprior to the accident. He did not also denied there is insurance policy in place for all categories of staff including the claimantand no compensation has been paid t him despite life insurance.

The claim of N15,000,000.00 is for claimant’s contribution as well as contribution of the defendant under section 15.6, paragraph 6 at page 62 of exhibit CW1C1-67. Para 22 of statement of claim.

The claim of special damages of N1,760,000.00 is for medical expenses expended by the claimantfor surgical operation on his damaged legs. Exhibit CW1F1-3, and CW1G.

According to counsel for the the Claimant is permanently consigned to the
usage of two crouches as he lost the free use of the two legs following
the accident. We humbly urge the Court to grant the Claimants claims as
stated under the special damages. It is settled law as enunciated in MTN
NIGERIA COMMUNICATIONS LIMITED VS AQUACULTURE COOPERATIVE FARMERS SOCIETY LIMITED (2016) 1 NWLR (PT.1493) 339 at page 359 paragraph B – C that a Court is entitled to act on unchallenged and un- contradicted credible evidence thus:

“A court is entitled to accept credible evidence that was not challenged and contradicted on any issue calling for decision before it”

ISSUE THREE

‘‘Whether the Claimant is not entitled to his claims having successfully
proved his case orally and supported with documentary evidence?

In arguing this issue counsel for the claimant submitted it is trite that he who alleges must prove. The Plaintiff in this suit claimed 5 declarations and 9 Orders of this Honourable Court
pursuant to all his uncontroverted relevant claims that were properly pleaded and supported with documentary evidence and further corroborated by the oral testimony of the Claimant as well as that of DWl the sole witness of the Defendant. The Supreme Court in the case of FELICIA AKINBISADE VS THE STATE (2006) 17 NWLR (PT.1007) AT PAGE 188 PER NIKI TOBI JSC of blessed memory emphasized the reliability of documentary evidence in proof of case stated thus:

“The most reliable if not the best evidence is documentary
evidence. It is, in most cases, more reliable than oral or parole
evidence. Although documentary evidence could be subject of
forgery by human conduct, act or intervention, the instances of
forgery are less when compared with oral or parole evidence
where witnesses tel/lies with ease”

NIKI TOBI JSC went further wherein he stated thus in the same case of FELICIA AKINBISADE VS THE STATE (2006) 17 NWLR (PT.1007)

“When documentary evidence supports oral evidence, the oral
evidence becomes more credible. This is so because documentary evidence serves as a hanger from which to access oral testimony”.

It is the contention of counsel that the Claimant had never and will never deny the fact that he was indebted to the Defendant to the tune of N16,604,162.93 stated in paragraph 17 (p) of the Defendant’s Statement of Defense. The Defendant is entitled in law and in equity to subtract the said amount of N16,604,162.93 from the Claimant’s benefits even though it never counter claimed for same. The Supreme Court in ALHAJI LASISI SALISU &1 OR VS ALHAJI ABBAS MOBOLAJI &2 ORS (2016) 15 NWLR (pt.1535) On Whether Plaintiffs Can Rely on Defendants’ Pleading and Evidence Which Support Their Case thus:

“The Plaintiffs are entitled in law to rely on defendants’ pleading and
evidence which support their case and hence the court is allowed to act thereon. In the instant case, the evidence of the respondent elicited during cross examination. Linking respondents to Eleso, …..” [AkinolaVsOluwo(1962) 1 SCNLR 352; OdunranVsAsarah(1972) 1 All NLR (pt.2) 137 referred to} (pp.280 – 281, paras H – A)

The Defendants stated at paragraph 17 (a) (b) (h) ((i) (I) (m) and (r ) of its
statement of Defense corroborating all the claims of the Claimant.

The claimant reproduced below the averment of the Defendant at Paragraph 17 (a) of the Defendant Statement of Defense admitting that the Claimant was 55 years old as at the time of his retirement which automatically qualifies Claimant for voluntary early retirement benefits provided for in the handbook EXHIBIT CW1C1-67 at page 26.

“The Claimant was employed by the Defendant on the 7^thJuly, 1986 and was 55 years old when he retired and after serving the Defendant for 29 years and 6 months”

Paragraph 17 (b) attest to the fact that the Claimant is entitled to payment of gratuity and that same is computed based on the annual salary, transport, housing and lunch allowance as espoused by the Claimant at paragraph 14 of the Claimant statement of Claims. Paragraph
17 (h) of the Defendant’s Statement of Defense confirmed the claims of the Claimant that he exited from the Defendant’s service in 2016 and so the only acceptable method of calculating gratuity stated by the Claimant at paragraph 14 of his statement of Claims that was
corroborated by the Defendant at paragraph 17 (h) that gratuity is
calculated on the numbers of years multiplied by annual basic salary. At same paragraph 17 (I) the Defendant’s statement of Defense, the Defendant admitted that the Claimant was involved in an auto accident while still in the service of the Defendant on Wednesday 23^rdMarch, 2013 stated in the Claimant reply to Statement of Defense dated 27^th
January, 2018 and not Saturday 23^rdMarch, 2013 reflecting in the Defendant’s final written address. That there was and still in place insurance cover for all categories of staff including the Claimant at paragraph 17 (m). The Defendant finally in its statement of Defense at
Paragraph 17 (r) admitted that the Claimant paid substantial part of the
loans he took while still in the service.

See the case of ALHAJI MUFUTAU MOHAMMODU GBADAMOSI ESUWOYE VS ALHAJI JIMOH ABODUNRIN IMAM BOSERE substituted for ALHAJI SHEU F. OVENIYI) AND 8 ORS. (2017) 1 NWLR (pt.1546) at ratio 11 on meaning of cause of action where the Supreme Court stated thus:

‘‘the purpose of litigation, a cause of action entails the fact or combination of facts which gives rise to a right to sue and it consists of two elements:-

The wrongful act of the Defendant which gives the Plaintiff his
cause of complaint and
The resultant/consequent damage.

It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the plaintiff a substantive right to make a claim for such remedy or relief against the Defendant. The existence of cause of action is an indispensable prerequisite” (ONUEKWUSI Vs R.T.C.M.Z.C. (2011) 6 NWLR (pt.1243) 341 Per ONNOGHEN, JSC at pages 298-299.

The supreme Court in the case of KERIAN IKPARA OBASI VS MIKSON
ESTABLISHMENT INDUSTRIES LTD (2016) NWLR (PT.1539) On attitude of Court to technicality over substantial justice per (Ngwuta, J.S.c.) thus:

“thedays of technicality in the application of law and rules are spent. Technical justice has been replaced by substantial justice in our Courts” at P.366, paras F

The Defendant’s admitted that the Claimant was a staff, that he served for 29 years 7 months, that he exited the services of the Defendant voluntarily in 2016 at the age of 55, that the Claimant was involved in an auto crash while in the services of the Defendant and that the Defendant had in place Insurance cover for all categories of staff. Same Defendant
admitted that the Claimant gratuity is calculated on the bases of total
emoluments by numbers of years spent and so forth and so forth.

In KAYILI VS YILBUK (2015) 7 NWLR (PT.1457) AT RATIO 13 stated thus:

“By section 75 of the Evidence Act, where a fact is admitted, it is deem proved and needs no further proof. . .see Adedeji VS Oloso (2007) 5 NWLR (pt.l026)133 (pp.63 paras. E-H; 67 paras E-G)”

In CBN VS ARIBO (2018) 4 NWLR (PT.1608) 130 AT 66 PARAS. B-D the Supreme Court held thus:

‘‘He who asserts must prove. In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any
presumption that may arise on the pleading”

The Supreme Court in the case of HON. (MRS.) DORATHY MATO VS HON. IORWASE HERMAN HEMBER AND 2 ORS (2018) 5 NWLR (PT.1612) P.2S8 @ 295, PARAS, E-F held thus at ratio 8 on Effect where statute prescribe means of doing a thing:

“It is trite that where a statute provides for a means of doing a thing, no other means or manner shall be permitted … the failure to comply with these provisions made the entire exercise null and void.

NwabuezeVsOkoye(1988) 4 NWLR (pt.91) 664; EzeobiVsNzeka
(1989) 1 NWLR (pt.98) 478 referedto.}p.295, paras. E-F)

In the case of GUARANTY TRUST BANK PLC VS CHUKWUMEZIE PETER EKEMEZIE (2016) 2NWLR (PT.1497)(p.618, paras. D-F on meaning of damages thus:

Damages are the pecuniary compensation or award given by process of law to a person who suffered loss or injury, whether, to his person or property through the unlawful act or commission of another. The rationale for awarding damages is to compensate the aggrieved party for the loss or place him in a position in which he would have been if he had not suffered damages or injury for which he is claiming compensation. This is expressed in the Latin phrase restitio in integrum’’

Counsel contended that it is only laughable that the Defendant who admitted all the claims of the Claimant suddenly turned round in its final written address to challenge the jurisdiction of the Court concerning some reliefs and even proceeded to attaching the judgment of Hon. Justice Lifu as well as referring to a judgment that had not been made available to parties that was delivered by Hon. Justice Esele(in which the Claimant counsel actively participated) whom it knows very well are colleagues of my Lord on same footing and that their pronouncement can never serve as binding authority on this Court under the doctrine of Stare Decises
further lend credence to the extent of the Defendant’s insatiable desperation. We most humbly commend to the Court the case of JUKOK INTERNATIONAL LTD &1 OR VS DIAMOND BANK PLC (2016) 6 NWLR (PT.1507) page 55, to submit with the greatest respect that Defendant Counsel’s address or submission for that matter does not change the
case of the Claimant. We respectfully leave your Lordship with the holding of his Lordship Oregola JCA at page 111, paragraphs C – D, of the Report, thus:

“It is now firmly established that counsel’s submission no matter how alluring, brilliant or eloquent is but a poor submission for evidence, properly adduced and admitted”

6.12 Section 254C (1) of the Constitution states thus:

“Notwithstanding the provisions of subsection 251, 257, 272 and anything contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have
and exercise jurisdiction to the exclusion of any other court in civil cause and matters-

Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the condition of service, including
health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

The Defendant has a penchant for constantly wanting to pull wools over the face of the Court by constantly distorting facts and law. The above quoted section of the Constitution speaks for itself. It is only laughable that the Defendant is challenging the jurisdiction of the Court urging the court not to pronounce on reliefs d, g, I, and j that are directly related or connected with the facts in issue as espoused by the Constitutional provision stated above. As if that was not enough, the Defendant was quoting with approval the decision of my lord colleagues of coordinate jurisdiction and was urging my lord to abide by same. What a
desperation to hoodwink the Court? The Defendant at paragraph 6.67 at page 31 of its final written address

An order that the Claimant merely stated that he should be awarded interest of 20% on all monies accruing to him from the date of his retirement from service and thereafter 10% post judgment interests. It is not in dispute that since 2016 after the Claimant had retired; the Defendant has failed, refused and neglected to pay all his entitlements as provided under the terms and condition stipulated in the Defendant handbook (EXHIBIT CW1Cl-67) that had been properly x-rayed above.

In N.P.A. VS AMINU IBRAHIM AND CO &1 OR (2018) 12 NWLR (PT.1632) the Supreme Court stated thus on principle guiding award of pre-judgment interest:.

It is however a valid law that a court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a SUCCe55!U( party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved…. “(per Sanusi J.S.C) at paragraphs H-A) pages 87-88.(underline for emphasis)

All the Claims of the Claimant in this suit are all predicated on facts and law as related to all the documents tendered in evidence in the trial most especially the handbook of the Defendant.

It is submitted that justice is a three way traffic, one to the victim (as in this case the Claimant), second to the Court and finally to the offender(s) as a deterrent. “Ubi jus ubiremedium” The Defendant illegally denied the Claimant all his entitlements that were adequately provided for in EXHIBITS CW1C1-67 and CW1D1-15. The Defendant also illegally converted the proceeds of the Claimant savings as espoused by EXHIBIT CW1C1-15 and termed same gratuity believing that the Claimant will not be able to know. This is fraudulent on the side of the Defendant and the Court is the only institution that is Constitutionally empowered under Section 6 (6) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) to mete out appropriate sanctions against the Defendant to serve as a deterrent in the future and to also made the Defendant pay substantial cost for intentionally and criminally subjecting the Claimant to incurring unnecessary legal expenses as well as wasting the time of the Claimant for years by imposing punitive/exemplary damages against the Defendant. We so urge the Court to grant our prayers

The Claims of punitive damages is to deter the Defendant from embarking on such heinous act of flagrant and arrogant violation of laws with impunity in the future. We most humbly urge the Court to rule in favour of the Claimant on all the issues raised having successfully proved his case and his entitlements as clearly enshrined in the Defendant’s handbook which is the document that spells out the terms and conditions of service of the Claimant.

In concluding his submission counsel submitted that without any fear of
contradiction, but with the greatest respect to this Honourable Court, that the Claimant had discharged the burden of proof placed on him by Sections 131 (1), 133 and 136 (1) of the Evidence Act, 2011 and had reached the standard of proof required by Section 134 of the Evidence Act 2011.

On the whole, the Claimant had discharged the legal and evidential burdens as stated by the Supreme Court in KALA VS POTISKUM (1998) 3 NWLR (PT.540) 1 AT 17AB; 1998 1-2 SC 132 AT 146 in establishing the admissibility of evidence on the basis of all the documentary evidence, judicial and statutory authorities referred to above, counsel urged the court to enter Judgment for the Claimant in tandem with all his claims, having satisfactorily proved all the claims in his pleadings, by way of oral submission and by way of all the documents submitted before this Honourable Court that were not objected to and
furthered corroborated by the pleadings and the two EXHIBITS of the Defendant.

COURT’S DECISION

I have carefully and painstakingly perused the processes filed in this suit. I have also attentively listened to submissions of counsel for both parties in advancing the case of their respective client.

The defendant has submitted two issues for determination. While the claimant submitted three issues for resolution. Having regards to the state of pleadings, the exhibits tendered and the submissions of counsel, the two issues distilled by the defendant are adequate to dispose of case.

RESOLUTION OF ISSUE ONE

‘‘Whether this Honourable Court has jurisdiction to adjudicate and grant reliefs d, g, I and j sought by the claimant.’’

By this issue, the jurisdiction of this court to hear and determine reliefs d, g, I and j sought by the claimant is being questioned.Where point of law touches on the jurisdiction of court to entertain the suit or reliefs, it can be raised at any time, even at the Supreme Court. this is because absence of jurisdiction to entertain claim will render any step taken in the matter a nullity and such issue can even be raised orally or by a court suomotu. See OLOBA V AKEREJA (1988) 2 NSCC 120, AGBITI V THE NIGERIAN NAVY (2011) 4 NWLR (PT.1236) 175, NNPC V ORHIOWASWLE (201`3) 13 NWLR (PT.1371) 211, UTIH V ONOYIVWE (1991) 1 NWLR (PT.166) 166, KATO V CBN (1991) 9 NWLR (PT.214) 126, ZAKARI V NIGERIA ARMY (2012) LPELR-9246(SC). This means the issue of jurisdiction being raised at the address stage is proper and within the law.

The point of jurisdiction being raised by the defendant relates to the power of the court to entertain reliefs d, g, I and j (reliefs being objected to). To the defendant (objector) this court has no jurisdiction to entertain these reliefs as they are not within the items of jurisdiction of the court as contained in section 254C of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). It is the submission of counsel that this court does not have jurisdiction on payment of insurance claim, debt recovery and interest rate on loan. This court cannot dabble into these claims simply because they arose from employer and employee relationship. The claimant’s response to the issue of jurisdiction on the four reliefs is as contained at paragraphs 6.11 – 6.13 of the claimant’s final written address. It is the contention of counsel that it is laughable for the defendant who admitted all the claims of the claimants suddenly turned around in its final written address to challenge jurisdiction of the court concerning some of the reliefs before the court. Counsel contended that the cases relied by the defendant in raising the objection are by the doctrine stare decisis not binding on this court. The submission of counsel does not change the claims of the claimant. While placing reliance on section 254C of the constitution as amended counsel argued that the reliefs being objected to directly relate or connected with the facts in issue as espoused by the constitutional provisions.

The objection to the competence of the Court to hear and determine the four reliefs being objected to by the defendant in based on the provision of Section 254C of the 1999 Constitution (as amended) by the Constitution (Third Alteration) (No. 3) of 2010. It is pertinent to state that Courts are creations of statutes and the Constitution, and they derive their jurisdiction from the Constitution or statute establishing them. The Constitution has circumscribed the extent and limit of the jurisdiction of the National Industrial Court of Nigeria in Section 254C thereof, and so the Court cannot go outside this provision to operate outside its jurisdiction. This is because jurisdiction is life blood of any adjudication, because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision of court without jurisdiction is a nullity dead and of no legal consequence whatsoever. By Section 254C of the Constitution (as amended), the National Industrial Court of Nigeria is conferred with exclusive jurisdiction to determine cases on labour employment, payment or non-payment of salaries, gratuity, pension and matters connected therewith. See United Nigerian Textiles Ltd v. Abu (2014) LPELR-CA/K/276/2009; & A.G. Federation v. Abubakar (2008) 16 NWLR (Pt. 1112) 135, NIGERIAN UNION OF TEACHERS, NIGER STATE V CONFERENCE OF SECONDARY SCHOOL TUTORS (COSST) NIGER STATE CHAPTER & ORS. (2012) 10 NWLR (PT.1307) 89.

Section 254C-(1) (a) (b) & (k) of the 1999 Constitution (as amended) by the Constitution (Third Alteration) (No. 3) of 2010 provides:

“254C-(1) Notwithstanding the provision of Section 251 , 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes or matters-

(a) Relating to or connected with any labour, employment, trade union, industrial relations and matters arising from the workplace, the conditions of service, including: health, safety, welfare of labour employee, worker and matters incidental thereto or connected therewith;

(b) Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or Law relating to labour, employment, industrial relations or any other enactment replacing the Acts or Laws;

(c) Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lockout or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matter connected therewith or related thereto;

(d) Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the court has jurisdiction to hear and determine;

(e) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;

(f) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;

(g) Relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace;

(h) Relating to, connected with or pertaining to the application or interpretation of international labour standard;

(i) Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;

(j) Relating to the determination of any question as to the interpretation and application of any-

(i) collective agreement;

(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;

(iii) award or judgment of the court;

(iv) term of settlement of any trade dispute;

(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;

(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;

Relating to or connected with trade disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
Relating to-

(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;

(ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and

(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;

(m) relating to or connected with the registration of collective agreements.

(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.

(3) The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the Court premises on matters on which jurisdictions are conferred on the Court by this Constitution or any other Act or Law:

Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.

(4) The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain.

(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any Act of the National Assembly or by any other Law.’’

The jurisdiction of a Court to entertain an action is determined by examining the law conferring jurisdiction on the court See Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465; Umanah v. Attah (2006) 7 NWLR (Pt. 1009) 503; KLM Airlines v. Kumzhi (2004) 8 NWLR (Pt. 875) 231; OHMB v. Garba (2002)14 NWLR (Pt. 288) 538. Accordingly, the subject matter of the action must be within the exclusive jurisdiction of the Court for the Court to have requisite jurisdiction. This is in keeping with the long established and settled legal position that jurisdiction is determined by the claims as endorsed in the originating process commencing the suit. In P.D.P. v. Sylva (2012) 13 NWLR (Pt. 1316) 85 at 127, D-F, the Supreme Court per Rhodes-Vivour, JSC, stated thus:

“Jurisdiction of a Court to entertain a suit is resolved by a scrupulous examination of the writ of summons, the statement of claim and the reliefs claimed. No other document should be examined.” See also Daru v. Umar (2013) LPELR-21905(CA); Njikonye v. MTN Nig. Comm. Ltd (2008) 9 NWLR (Pt. 1092) 332 at 365 & 361; Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 at 331-332; Okasia v. Oguebego (2015) LPELR-CA/A/737A/2014; Unity Bank v. Onwudiwe (2015) LPELR-CA/B/201/1999; Inegbedion v. Selo-Ojemen (2013) LPELR-19769; Ports & Cargo Handling Services Co. Ltd (2012) LPELR-9725; Onuorah v. K.R.P.C. Ltd (2005) LPELR-2707, 1 at 15; OHMB v. Garba (2002) 14 NWLR (Pt. 788) 538 at 536; &Ndaeyo v. Ogunaya (1977) SC 11.

Consequently, to justify the application of the Constitutional provision of Section 254(C)-(1) of the Constitution (supra) to this case, the Court must confine itself to a consideration of the facts of the case as disclosed in the initiating processes filed by the claimant, in this instance the complaint and statement of facts. since it is the claim that determines the jurisdiction of the Court. I have earlier reproduced the claims of the claimant in this judgment. In the light of the provision of section 254C of the Constitution as amended and the four reliefs being objected to it will be difficult to see how it can be successfully argued that this court can assume jurisdiction on reliefs that borders on insurance claims, recovery of debt or interest rate. It is clear that the claimant’s case before the court apart from being on severance or terminal benefits it also contained reliefs on insurance, debt recovery and interest rate. The claims on insurance, debt recovery and interest rate, having not been within the purview of section 254C of the constitution as amended which conferred on this court jurisdiction, are not properly brought before this court. I am fortified in this position by the decision of the Supreme Court in the case of LEWIS V UBA 2016 1 SC PTI 96, where it was held that contract of employment and personal loans between employee and employer are two distinct contracts having distinct subject matters and their duration not-coexistent nor can it be said that one is defendant on the other or that the right to terminate contract of employment by either party could operate as a condition precedent to repayment. Therefore, this court lacks jurisdiction to entertain the reliefs being objected to by the defendant and I so hold.

In the circumstance, the duty of a Court where it lacks jurisdiction is to strike out therelevant claims over which it had no jurisdiction to entertain. I therefore resolve issue one in favour of the defendant. Reliefs d, g, e, I are hereby struck out for lack of jurisdiction.

ISSUE TWO

‘‘Whether from the pleadings and evidence adduced in this Honourable Court, the Claimant has established his case to be entitled to the reliefs sought.’’

The defendant had argued that a critical look at the reliefs sought by the claimant and his pleadings vis-à-vis the evidence adduced by the claimant, the claimant has failed to discharge the burden proof to entitled him to the reliefs sought. The claimant on his part maintained that he has discharged the burden of proof by his claim with the evidence adduced before the court, the documentary evidence as well as admission of the defendant and the exhibits tendered by the defendant which supported the claimant’s case.

Reliefs (a), (b), and (c) are declaratory reliefs. From the evidence before the court there seems to be proof that vide exhibit DW1B1-2, the claimant joined the services of the defendant onin 1986 and rose to the rank of Principal Manager the post on which the claimant voluntarily retired from the service of the defendant as per exhibit CW1A a letter dated 23^rdJanuary 2016. It is also manifestly clear that the contract of service between the claimant and the defendant is governed by exhibit CW1C1-67, which is the conditions of service governing employment relationship between the defendant and its employees. It must always be borne in mind that where a contract (which include contract of employment), involves several documents, a court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of the ATTORNEY GENERAL OF KADUNA STATE V ATTA (1986) 4 NWLR (Pt.38) 785 and LAYLAND NIG. LTD V DEZENGOLF WA (1990) 2 NWLR (PT.14) 610. It is also trite that where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in witting. Also settled is in the interpretation of a contract involving several documents, the documents must be read together. See ROYAL EXCHANGE ASSURANCE NIG. LTD & 4 ORS.V ASWANI TEXTILE INDUSTRIES LTD (1991) 2 NWLR (PT.176) 639, CBN V IGWILLO (2007) 4 – 5 SC 154.

The contract of service between the claimant and the defendant was in writing as shown by exhibits DW1A letter of appointment and CW1C1-67 the conditions of service (handbook). There is also exhibit CW1D1-15, leaving service benefit this clearly goes to establish that without doubt that the full terms and conditions the contract of employment between the parties and same must be construed accordingly. See NIGERIA PRODUCE MARKETTING BOARD V ADEWUNMI (1972) 11 SC (REPRINT) 73 ANS SULE V NIGERIA COAL BOARD (1985) 6 SC 62. This court in construing the rights and obligations of the claimant and the defendantwill confine itself to the written terms and conditions of service as encapsulated in exhibit DW1B1-2, CW1C1-67 and CW1D1-15. See BALOGUN V SHELL PETROLEUM DEVELOPMENT CO. LTD (2003) 6 SC (PT.II)19.The law is home book that parties are bound by the terms of the contract and these terms should be read as they are without any embellishment. So once parties enter into contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract. See A.G. RIVERS STATE V A. G. AKWA-IBOM STATE (2011) 3 SC 1; UWAH & ANOR. V AKPABIO & ANOR.(2014) 2-5 SC1; KOIKI V MAGNUSSON (1999) 5 SC (PT.III) 30; UNION BANK OF NIGERIA LTD V B. U. UMEH SONS LTD (1996) 1 NWLR (PT.426) 565.

A contract is one with statutory flavour where the conditions for appointment and bringing the contract to an end are governed by an enabling statute. If follows naturally that a valid appointment or determination of the contract must satisfy provisions of the statute.

On the other hand, contract of master and servant without statutory flavour as in this case are classified as ordinary contract of service. Such contracts are governed by an employee handbook where the conditions of service are spelt out.

From the above exposition of law and the evidence adduced coupled with the exhibits tendered, it is without any doubt that a contract of service existed between the claimant and the defendant. The contract was reduced into writing as per exhibits DW1B1-2 and the terms and conditions governing the contract is as contained in exhibits CW1C1-67 and CW1D1-15.

There is also no dispute that vide exhibit CW1A, the claimant voluntarily retired from the service of the defendant. For proper appreciation the content of exhibit CW1A is hereto reproduced:

C/OMaitama ii Br

Murjanatu House,

Maitama, Abuja.

23^rd January 2016.

The Group Head Human Capital,

Head Office, Lagos

Through the Executive Director,

North Directorate,

Abuja.

RETIREMENT FROM SERVICE: EFFECTIVE 25/1/2016

Following management’s decision, I wish to retire from the bank’s service effective as indicated above.

I am 55 years old and have spent 29 years 7 months in the service of the bank to date.

I have handed over my duties to Mrs.AsiotaAdewale.

I thank management for affording me the opportunity to leave the bank to date.

I hereby attached my Identity card for records.

Kindly acknowledge receipt.

Yours Faithfully

Suleiman M. Abubakar

SGN

CC: DanjumaAkakabi. Sn010278

From the above quoted exhibit CW1A, it appears that the claimant tendered his voluntary retirement from service of the defendant in compliance with the decision of management of the defendant. As at the time of retirement the claimant was 55 years of age and has served the defendant for a period of 29 years 7 months.

A careful perusal of the provision of Article 8.12.1 of exhibit CW1C1-67 on retirement provides as follows:-

Article 8.12.1 RETIREMENT

The compulsory retirement age for every employeeis sixty (60) years or (35) years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or have served up to 30 years or at his/her own discretion or at the discretion of the management.

Early retirement benefits:

One year total emolument less variables pay (i.e total guaranteed pay including location and leave allowances/holiday travel allowances). This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. However, any applicant who has less than one year to retire normally will have their incentive payments prorated.
Senior officers who wish to take advantage of the scheme subject to management’s approval will be allowed to go with their status cars. Status cars that are two years old and above will attract a payment of 10% of the purchase price while those cars less than two years old will attract 25% of purchase price.

If the content of exhibit CW1A and the provision of Article 8.12.1 of exhibit CW1C1-67 are juxtaposed, it will be clear to every discerning eyes that the claimant’s retirement falls within the purview of voluntary early retirement as provided in exhibit CW1C1-67, i.e the defendant’s Handbook (conditions of service) Article 8.12.1.

In view of the foregoing revelation, it is my view that the claimant is entitled to declaration that there was existed between the claimant and the defendant contract of employment entered into vide exhibit DW1B1-2 and governed by exhibits CW1C1-67 and CW1DD1-15.

The claimant is also entitled to declaration that the contract of employment entered between the claimant and the defendant as per exhibit DW1B1-2, and government by exhibits CW1C1-67 and CW1D1-15, cannot be varied except in line with exhibits CW1C1-67 and CW1D1-15.

The content of exhibit CW1A also established that the claimant’s retirement from the service of the defendant is governed by the provision of voluntary early retirement as encapsulated in in Article 8.12.1 of exhibit CW1C1-67.

Relief (e) which is for a declaration that the claimant is entitled to partake in sharing of the defendant’s profit like any other staff of the defendant whom the defendant paid having worked from January to December 2015, the period for which the payment was based.

According to the claimant the provision of section 9.2 paragraph 1(i) (ii) of exhibit CW1C1-67provides for variable pay otherwise known as pay for performance. It is submitted that the claimant had consistently paid claimant pay for performance over the years. Counsel referred the court to exhibits DW1A pages 51 on 24/4/12, on 31/1/13, 19/4/134/4/14 on these dates claimant was paid. Thus, why he is claiming N6,000,000.00 for pay for performance for the year 2015 it is also submitted by the counsel for the claimant that the defendant did not declare loss.. The defendant on its part has argued that the claimant is not entitled to pay for performance, as the said payment is not part of claimant’s remuneration, it is a payment that is at the discretion of the defendant and that it had not paid for pay for performance for year 2015.There is no doubt that the handbook exhibit CW1C1-67 has made provisions for payment of pay for performance. See section 9.2 at page 30 of handbook. It states:

9.2 Variable Pay

The variable pay represents additional emoluments payable to each staff subject to Bank achieving its targets, the performance of the respective staff department/branch and the performance of the respective staff. The variable pay is paid based on performance only to staff who are on the payroll of the bank on the day of payment.

Staff who have received warning letters will not benefit from the variable pay. While staff on suspension will not be paid until the determination of their case.’’

It is very clear from the foregoing provisions of the handbook that members of staff are entitled to payment of pay for performance provided they were in the service of the defendant for the period of payment. However, the defendant has denied ever paying pay for performance for year 2015. The claimant has not adduced any concrete and credible evidence to establish that the defendant really paid its staff pay for performance entitlement for year 2015. If the claimant was serious on his claim he would have compelled the defendant to produce before the court the evidence of the payment or call those who have benefitted to testify or produce evidence of the payment. From the evidence adduced by the claimant the amount payable for each year was not the same it differs from year to year and there was no evidence adduced as proof that the claimant’s entitlement for pay for performance for 2015 is the sum of N6,000,000.00. Though the claimant is entitled to benefit from2015 pay for performance for having served the defendant for that year, the claim cannot be granted the relief due its vagueness and lack of proof. This head of claim failed and is hereby refused.

Relief (f ) is for an order directing the defendant to comply with the terms and conditions stated in the defendant handbook and pay the claimant the arrears of his unpaid severance benefit under the voluntary early retirement scheme in the sum of N240,642,875.60 being special damages specified as follows:-

N71,798,510.10 representing the claimant’s gratuity for 29 years, seven Months.
N46,084,365.60 representing one year total annual emolument under voluntary early retirement scheme of the defendant.

N6,000,000.00 representing unpaid profit sharing for the year ended December 2015

N100,000,000.00 representing insurance claims for permanent disability following a ghastly road accident along Lokoja –Abuja road on official assignment on 23/3/13
N1,760,000.00 being hospital medical bill paid at Fountain Side Hospital, Gwarimpa Abuja for bone operation.
N15,000,000.00 being accumulated pension before the advent of pension Act in 2004 in the hand of the defendant.

The defendant has argued that relief (f) and the concomitant particulars of special damages are amorphous in the way they are couched. Counsel posited that the question to answer is are particulars or items ii, iii, iv and v i.e unpaid profit share, N100,000,000.00 insurance claim and N1,760,000.00 medical bill part of severance benefit whether in arrears or as at when due, because they are not part of staff remuneration. Counsel submitted that they are referred to as incentives. These are facts of common knowledge in banking sector. It is submitted that if it is held that these items of special damages are not severance benefit, then the question that need answer is was the claimant paid his severance benefit, viz: gratuity and pension by the defendant. Counsel submitted that it was averred in paragraph 17(c) that the defendant came up with a creative retirement package whereby employees, like the claimant, who opted for voluntary retirement even though they had few years to retire, were paid their gratuities by two instalments before the actual retirement period. It was stated that the essence of paying retirement benefit i.e gratuity before the retirement date was to enable intending retirees plan their future lives prior to effective dates of retirement. The claimant was one of those that benefited. The counsel for the defendant has contended that to buttress payment of severance benefit, the defence witness DW1 has testified that he benefitted from the payment.

It is trite law that upon cessation of employment, an employee apart from his terminal benefits he will be entitled to what he is entitled to as at the date of determination of his employment.Therefore contrary to the submission of counsel for the defendant that gratuity and pension are the only severance benefits that can be claimed. If an employee has earned any incentives he will be entitled to claim such as part of his severance benefits. I shall now consider the items of special damages to determine whether or not the claimant is entitled to those items of claims.

There is no doubt that claims for terminal benefit are in law regarded to be claims for special damages. It has been decided by the decision in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, is that a claim is circumscribed by the reliefs claimed; and the duty of a plaintiff, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. This court has in several decisions held that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017 and Stephen Ayaogu& 16 ors v. Mobil Producing Nigeria Unlimited &anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017. To prove the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr Mohammed Dungus&ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits”, being monetary sums, is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. To succeed in a claim for special damages, it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC), Mr Ignatius Anyanwu&ors v. Mr Aloysius Uzowuaka&ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA).

According to counsel for the defendant items ii, iii, iv and v of relief (f) were not severence benefit. For the counsel for the defendant severence benefit covers only item i payment of gratuity. However, a careful exhamination of relief (f) the claimant is seeking for payment of entitlement provided under voluntary early retirement.

As pointed out earlier an assidious examination of exhibit CW1A in conjunction with provision of Article 8.12.1 of exhibit CW1C1-167, will lead to irresistable conclusion that retirement of the claimant was done under the voluntary early retirement as provided for under Article 8.12.1 of exhibut CW1C1-67. At the expense of being repetative, i shall reproduced again the provision of Article 8.12.1 of exhibit CW1C1-67. This is for proper appreciation of the issue involved.

Article 8.12.1 RETIREMENT

The compulsory retirement age for every employee is sixty (60) years or (35) years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or have served up to 30 years or at his/her own discretion or at the discretion of the management.

Early retirement benefits:

One year total emolument less variables pay (i.e total guaranteed pay including location and leave allowances/holiday travel allowances). This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. However, any applicant who has less than one year to retire normally will have their incentive payments prorated.

It is patently clear that an employee of the defendant that retired under the voluntary early retirement under Article 8.12.1 of the handbook is entitle to one year total emolument less variables pay i.e total guaranteed pay including location and leave allowances/holiday travel allowance. This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. In item i the claimant is claiming the sum of N71,798,510.10 (Seventy One Million Seven Hundred and Ninety Eight Thousand Five Hundred and Ten Naira, Ten Kobo) representing the claimant’s gratuity for 29 years, seven Months. In item ii the claimant is claiming the sum of N46,084,365.60 (Forty Six Million, and Eighty Four Thousand Three Hundred and Sixty Five Naira, Sixty Kobo) representing one year total annual emolument under voluntary early retirement scheme of the defendant. It is appropriate at this juncture to reproduce the relevant pleadings of the parties in respect of the claim for gratuity and entitlement under voluntary early retirement.

The relevant paragraphs of the statement of facts are:

The claimant avers that he is entitled to payment of gratuity and that this payment is provided for in the defendant’s Handbook. The method used in the industry for calculation of gratuity is the monthly basic salary of any retiree or any staff that qualifies for gratuity as at the time of retirement/exit multiply by twelve and by the number of years spent or simply put, annual basic salary multiplies by the numbers of years spent i.e monthly basic salary x 12 x Nos of years or early basic salary x no of years spent). The defendant is put on notice to produce the document containing the formula for calculating gratuity for employee approved by union and management as same shall be relied upon during the hearing of this suit.
The claimant avers that he retired voluntarily from the service of the defendant and in accordance with the defendant’s decision urging any staff that had served up to 20 years or aged 55 years who is desirous of exiting without waiting for the mandatory retirement age to take advantage of the Handbook provision and so qualified for a special allowance for any staff that voluntarily retired or that is retired by the defendant before the mandatory 35 years in service or 60 years of age by payment of 1 year total emoluments plus holiday allowances of such staff in addition to his gratuity that is clearly provided for in the defendant’s handbook. The claimant herein pleads the defendant’s handbook and same shall be relied upon at the hearing of this suit.
The claimant avers that his 1 year total emolument is N46,084,365.60 (Forty Six Million, and Eighty Four Thousand Three Hundred and Sixty Five Naira, Sixty Kobo) only and that the defendant had refused to pay the said I year total emolument provided for in its Handbook till date for employee that retires early. The claimant herein pleads the defendant’s Handbook wherein the provision for payment for voluntary retirement is clearly stated in addition to payment of gratuity as same shall be relied upon at the trial of this suit.
The claimant avers that he earns the sum of N202,820.65 as his monthly basic salary which translate into N2,433,847.80 per annum, N1,338,292.00 as annual housing allowance, N97,812.50 as monthly transport which translates into N1,173,750.00 annually, N5,500,000.00 as holiday allowance and N26,833.33 as his luncheon allowance monthly which equally translates into N321,999.96 annually. The claimant herein pleads his December 2015 pay slip and herein put the defendant on notice to produce his pay slip for the Months of December 2015 and January 2016 as same shall be relied upon at the hearing of this suit.

The relevant averment in the statement of defence are hereto reproduced.

The defendant denies paragraph 14 of the statement of facts and avers that the defendant is not indebted to the claimant in anyway as the claimant’s gratuity totaling the sum of N14,636,626.00 was paid in two tranches in December 2013 and June 2014 respectively.
With further reference to paragraphs 14 of the statement of facts, the defendant states that the sum of N7,213,313.00 being 50% of the claimant’s gratuity was on 31^st December 2013 and additional sum of N7,423,313.00 on the 2^nd June 2014.
The defendant denies paragraphs 15 and 16 of the statement of facts and avers that the claimant retired voluntarily and there was no decision urging any staff, including the claimant serving up to 20 years or age 55 to retire and that there was no communication whatsoever to staff to embrace early retirement at the period the claimant retied.
Paragraph 17 of the statement of facts is denied in totality and the defendant states that the claimant’s annual emolument was N24,258,277 and not N46,084,365.60 alleged by the claimant.

From the above averments of the claimant it is lucidly clear that the claimant’s claims for gratuity and one year emolument for voluntary early retirement were predicated on the provision of Article 8.12.1 of exhibit CW1C1-67, the handbook. However, my understanding of the provision of Artcle 8.12.1 of exhibit CW1C1-67 is to the effect that an employee of the defendant shall retire from service on attainment of age of 60 years or 35 years in service whichever comes first. However, an employee is free to voultarily retires early upon attainment of 55 years of age or putting 30 years in service. This can be by the employee at his own volition or at the prompting of the defendant. It is also clear that an employee that takes advantage of early retirement will be entile to payment of 1 year total emolument less variables pay (i.e total guaranteed pay including location and leave allowances/holiday travel allowances). This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. The provision of Article 8.12.1 is very clear and unambiguous it says what it says. The qualifying criteria to come under the provision of voluntary early retirement is for an employee to be 55 years of age or served the defendant for 30 years. The claimant as at the time of his retirement was 55 years and had served the defendant for 29 years, this shows he qualifies under the age requirement. Therefore, he is entitled to benefit from voluntary early retirement benefit and I so hold.

For the payment of gratuity the provisions of exhibit CW1D1-15 has clearly stated that an employee that served the defendant will be entitled to gratuity. Paragraph 5 of exhibit CW1D1-15 titled New Gratuity stated that in addition to benefit described in section 2 and 3, each member will at exit from service, be entitled to a gratuity. The gratuity will be calculated at annual pay at exit date multiplied by the number of years of service rendered (after 1^st April 2001) with the result divided by 12. It is to be noted that vide exhibit CW1D1-15 the payment of gratuity as per this exhibit is with effect from 1^st April 2001. From 1^st April 2001 to January 2016 when the claimant retired is a period of 14 years 10 Months. Therefore the claimant’s gratuity will be his annual pay at exit for 15 years divided by 12.

Having established that the claimant is entitled to payment of gratuity and voluntary early retirement benefit. What is left is to see whether the claimant has established the quantum of the entitlement. The claimant tendered exhibit CW1E the pay slip of the claimant for January 2016, but the said exhibit is not helpful to the court to determine the quantum of what the claimant is entitled to as some of the items that are needed to establish the amount the claimant is entitled to are not contained in exhibit CW1E.

However, going by exhibit DWA page 101 the exit monthly salary of the claimant which was credited to his account was the sum of N2266,878.85. This represent the net pay after deductions. It is also not the basic salary of the claimant. Exhibit CW1E which is supposed to tell the claimant’s salary for the Month of January 2016 did not contain provision for salary. However, there is a document in the case file which clearly shows the claimant’s basic monthly salary. The document is the December 2015 pay slip of the claimant, it was amongst the document frontloaded by the claimant as part of the document to be relied on but was not tendered before the court for admission. In considering this document I am not unmindful of the position of the law regarding document tendered but rejected which cannot be used by the court.SEE HAUSA V STATE 1994 6 NWLR PT.350 28, AKEEM AGBOOLA V THE STATE 2011 LPELR-8948 (CA). I am resorting to use of this document based on the principle of law that a court can suomotu make reference to its record or to its case file and make use of any document it finds necessary. See FAMUDOH V ABORA 1991 9 NWLR PT.214 210, ONAGORUWA ADENIYI 1993 5 NWLR PT.293 317, OKEKE V AG OF THE FEDERATION 1997 9 NWLR PT.519 123 WEST AFRICAN PROVINIAL INSURANCE CO. LTD V NIGERIA TOBACCO CO LTD 1987 2 NWLR PT.56 299. Since it is trite law that a court can make use of document in its case file, I shallmake use of the December 2015 pay slip of the claimant in determining the quantum of amount the claimant is entitled to as his gratuity and one total emolument as entitlement for voluntary early retirement. However, this does not mean that it is only this document that can be used for that purposes other documents that are relevant would also be referred and make use of.

From the December 2015 pay slip of the claimant his basic salary is stated to be the sum of N202,820.65 X 12 = N2,433,847.8 X 15 (number of years served) = N36,507,717 then divided by 12 = N3,042,309.75 which is the gratuity the claimant is entitled to from 1^st April 2001 to date of retirement January 2016. This is because exhibit CW1D1-15 took effect from 1^st April 2001. It is to be noted that there is no evidence adduced to establish what the claimant is entitled to gratuity from 1986 when he joined the service of the clamant to 31^st March 2001.It will be seen going by the formula for calculation of gratuity as enshrined in exhibit CW1B1-15 which the claimant tendered in evidence and relied heavily in making claim for gratuity, the claimant is only able to establish by the evidence before the court to be entitled to the sum of N3,042,309.75, as his gratuity. For purpose of clarity I shall reiterate that the claimant’s entitlement as gratuity just stated is as from 1^st April 2001 the effective date of exhibit CW1D1-15. For the remaining period prior to 1^st April 2001, the claimant has not tendered any evidence based on which gratuity for that period could be calculated.

It is to be noted that the defendant’s position on gratuity going by their pleading is that the claimant had been paid his gratuity in two tranches as shown by exhibit DWA pages 72 and 76. The claimant disputed the claim of the defendant that he was paid gratuity in two tranches. The question that need answer is can the two tranches be gratuity? The defendant has asserted that the defendant came up with creative retirement package whereby employee like the claimant , who opted for voluntary retirement even though they had few years to retire, were paid their gratuities by two instalment by two instalment before the actual retirement period. The essence according to the pleadings is to enable intending retiree plan their future lives prior to effective dates of retirement. The question to be asked is can gratuity be paid before retirement? The simple answer is it can be paid but this has to be based on agreement of the parties or if it is provided for in the conditions of service. I have perused exhibits CW1C1-67 and CW1D1-15 which are the conditions of service tendered before the court and DWB1-2, there is nowhere provisions for payment of gratuity is provided to be made prior to retirement. The defendant has also not tendered any document regarding policy governing this issue. In the absence of such proof I hold that the payment made prior to retirement of the claimant as shown in exhibit DWA as gratuity is not payment of gratuity as such payment has not been in accord with customary practices of payment of gratuity in the world of works in the absence of provision made for such in conditions of service and absence of agreement of the parties or through ‘collective bargaining’.

In view of the foregoing, I am in total agreement with counsel for the claimant that this kind of payment is in breach of extant provision of exhibit CW1C1-67 governing conflict of interest.

On payment of one year total emolument as entitlement for voluntary early retirement benefit. The claimant also placed heavy reliance on what constitute total emolument as stated at page 5, in paragraph 3.4 of exhibit CW1D1-15. The claimant relied on exhibit CW1E in calculating his entitlement. I have perused the said exhibit which is supposed to provide details of how the last emolument of the claimant was paid or show the monthly entitlement of the claimant. Alas! It did not but it shows some annual entitlement of the claimant as follows:

Annual Furniture N731,445.00

Annual Housing N1,338,292.00

Children Education quarterly N348,582.00

Dressing Quarterly N291,006.75

Location Allowance Retro N609,998.25

From exhibit CW1E relied by claimant for his claim it is only Annual Housing allowance that is provided which is the sum of N1,338,292.00. For basic salary I shall resort to December 2015 pay slip of the claimant which is one of the frontloaded document in this suit as contained in the case file. The monthly basic salary of the claimant as per the December 2015 slip is the sum of N202,820.65 which if multiplied by 12 will give us the sum of N2,433,847.8. There is also in the said document provision for luncheon which is part of the allowances to which claimant is entitled to as part of his package for voluntary early retirement. The luncheon allowance per month is the sum of N26,833.33 X 12 = N321,999.96. In exhibit CW1E annual housing allowance was stated to be the sum of N1,338,292.00. If these three items are added together the total will be the sum of N4,094,139.76. What this means is that the claimant is only able to prove the sum of N4,094,139.76, as his voluntary early retirement benefit. It is to be noted that there is no evidence adduced on annual transport allowance, leave/travel allowance. It is my view that the claimant is only entitled to what he was able to prove. The said established sums on salary, housing allowance and luncheon allowance are hereby granted to the claimant.

I awarded these sums though less than what the claimant is asking for,the law allows granting of proved lesser amount. The law is trite that a court can grant lesser claim but not grant more than what is clamed. See BADMUS V ABEGUNDE 2001 3 WRN 40, OGUNYADE V OSHUNKEYE 2007 15 NWLR PT.1057 218, ATIVIE V KABEL METAL NIG. LTD 2008 10 NWLR PT.1095 399. The apex court in the case of HASTON NIGERIA LTD V ACB PLC 2002 12C NWLR PT.782 623, where it was held ‘the law is trite that where a plaintiff claims more than he can prove, he is awarded the lesser amount. Where a party claims more than he can prove, he is awarded the lesser amount. See KAYDEE VENTURES LTD V THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY & 2 ORS (2010) 2-3 SC (PT.III) 1.

I must also observe that the claimant has not been able to adduce convincing evidence before the court to establish his pleading in reply to the defendant assertion that it had paid the claimant his gratuity. The claimant making case for entitlement under provident fund has no basis. The claimant has not tendered any instrument showing that he has contributed and has an account with the defendant regarding the provident fund that entitle him to reap the purported alleged investment made by him. The claimant woefully failed to prove that there is provident fund in place that is operational. The reliance on exhibit CW1D1-15 is not helpful to the positon canvassed by the claimant. For the claimant to make successful claim under exhibit CW1D1-15 he must adduced in proof of the existence of the funds and the contributions made, which he has not done.

On item iii claim of N6,000,000.00 profit sharing it has been dealt with earlier. The claimant has not proved this item of claim. He avers that his colleagues were paid N6,000,000.00 but failed to call any of them or tender evidence showing payment to any of his peers. Furthermore.

On item iv it has been dealt with. This court does not have power to delve into insurance claims. Even if this court has jurisdiction to deal with this claim there are no evidence adduced in proof. The claimant has not tendered the policy and has not joined the insurance firm as a party how can the court make order against a party not been brought before it.

On item v claim for refund of N1,760,000.00 it is in evidence that the claimant was in the course of performance of his duties to the defendant involved in a ghastly motor accident that has left him with permanent disability. It was the injury sustained in the accident that made him to undergo surgery. It is also in evidence that the defendant has not paid him any compensation in the circumstance I find that the claimant has proved this item of claim more particularly with the tendering of exhibit CW1G. This claim succeed and is hereby granted.

On item viof the claim, the claimant has argued that the claim for pension is for his contribution and that of the bank for the period of service prior to the coming into effect of Pension Reform Act 2004. Counsel relied on Article 15.6 paragraph 6 of page 62 of exhibit CW1C1-67 to press for his entitlement to pension before the advent of Pension Reform Act. The claimant according to condition of service is to contribute 8.5% and the defendant to contribute 16.5% making the total contribution to 25%. The defendant on the other hand submitted that the claimant’s pension contribution before the advent of Pension reform Act has been remitted to the claimant’s pension fund administrator.

It is trite law that he who asserts the existence of a fact bears the burden of proof. See Section 131 (1) of the Evidence Act, 2011 (as amended). The defendant who asserts that the contributions were transferred by the defendant has to prove the remittance. I have deeply examined the exhibits tendered there was none that shows remittance of claimant’s pension contribution to his pension funds administrator. The defendant has argued that the onus is on the claimant to prove the claim. This submission is clearly based on misconception of the law regarding burden of proof in respect of payment of employees’ remunerations and entitlement. Furthermore, it is trite law that the burden of proof is on he who asserts positively. This means that the defendant who asserts that remittance has been made has the burden of proving the remittance. In the case of HONIKA SAWMILL NIG. LTD V HOLF (1992) 4 NWLR (PT.238) 678 (CA), it was held that: as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period, but also how much the salary that he paid the employee was.

Furthermore, the law is trite that whoever asserts the affirmative or the positive of a fact/issue is the one with the legal burden to prove that issue. This is based on the latin phrase-Eiincumbitprobatio qui dicit non qui negat, cum per naturam factum negantisprobationulla sit which means the proof lies upon him who affirms, not upon him who denies, since, by the nature of things, he who denies a fact cannot produce any fact. See he cases of ELEMO V OMOLADE (1968) NMLR 359, Also in TORNO INTERNAZIONALE NIG LTD & ANOR V FSB INT’L BANK PLC (2013) LPELR- 22775(CA), IMONIKE V UNITY BANK PLC (2011) 5 SCNJ, ABUBAKAR L. ABDULLAHI & ANOR V. HON. YAHAYA SADAUKI & ORS APPEAL (2008) LPELR-3557(CA), AFOLAYAN V ARIYO & ANOR (2014) LPELR-22775(CA),PDP V ALI & ORS (2015) LPELR-40370(CA), ABDULGANIYU V ADEKEYE (2012) LPELR-9250(CA) AND HABU V ISA (2012) LPELR-15189(CA). The defendant having not adduced any credible evidence indicating that the pension entitlements of the claimant prior to enactment of Pension Reform Act has been remitted to his Pension Funds Administrator has failed to discharge the burden of proof. In the circumstance, it is my view that the Claimant is entitled to be paid his pensions entitlements before the enactment of Pension Reform Act. For the defendant to discharge the burden of proof in respect of remittance, concrete, cogent and compelling evidence needs to be adduced. If such remittance has been made what stops the defendant from tendering evidence. It is my view claimant has not been paid his pension prior to the enactment of Pension Reform Act.

Relief (g) has been dealt with under jurisdiction. This court does not have jurisdiction over claims on debt recovery.

Reliefs (k) (l)(m) and (n) have not been proved.

Before ending this judgment, I wish to restate the trite position of law that the address of counsel can never be a substitute or replacement of hard evidence, no matter how brilliantly couched. To allow counsel deviate from the claim and goes to establish a fresh case not made is to call for doing violence to long establish tradition of pleadings counsel must always restrict their addresses to the case put forward before the court. see LEWIS & PEAT (NRI) LTD V AKHIMIEN (1976) 7 SC, IGEWE V AICE 1994 8 NWLR PT.363 459.

In view of the foregoing, the orders of the court are as follows:-

The claimant is entitled to the sum of N2,433,847.8(Two Million Four Hundred and Thirty Three Thousand Eight Hundred and Forty Seven Naira, Eight Kobo),as gratuity from 1^st April 2001 to the date of his retirement.
The claimant is entitled to the sum of N4,094.139.76(Four Million and Ninety Four Thousand One Hundred and Thirty Nine Naira, Seventy Six Kobo),as voluntary early retirement benefit provided for in Article 8.12.1 a of exhibit CW1C1-67.
The claimant’s claim for the sum of N1,760,000.00(One Million Seven Hundred and Sixty Thousand Naira), medical bill is hereby granted.
The defendant is hereby ordered to calculate the claimant’s pension benefit as from 1986 to the time of take-off of the New pension Reforms under the Pension Reform Act. The said amount calculated shall be remitted to the claimant’s Pension Funds Administrator where he has his retirement pension account for disbursement in accordance with the Pension Reform Act.
The sum of N2,000,000.00 cost is awarded against the defendant in favour of the claimant.

All sums of money payable as per this judgment shall be complied with within 21 days from today. Thereafter the judgment sums shall attract 10% interest per annum.

Judgment entered accordingly.

SanusiKado,

Judge.