IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: MONDAY 1STAPRIL 2019
SUIT NO: NICN/LA/459/2016
BETWEEN
MRS OYEDIJO AYO-FAMOLA
CLAIMANT
AND
⦁ THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
⦁ SHELL NIGERIA CLOSED PENSION FUND ADMINISTRATOR LIMITED
DEFENDANTS
Representation:
O Falaye appears for Claimant
O. Ojibara appears for Defendants, with Esther Olatubosun, MaryAnn Eigbokhan, Ola Agha and ChimziAnyanwata
JUDGMENT
⦁ Introduction
The Claimant commenced this Suit against the Defendants vide a General Form of Complaint along with other Originating Processes all dated and filed on 14 July 2016 wherein she seeks the following reliefs:
⦁ A DECLARATION that up till the time the Claimant disengaged from the services of the 1st defendant 55 (fifty five) years was the agreed retirement age of the Claimant with a retirement date of March, 2025.
⦁ A DECLARATION that having not agreed to an alteration of the said retirement date, the 1stand 2nd Defendants have no power to alter the retirement date of the Claimant from March, 2025 to March, 2030.
⦁ A DECLARATION that the Claimant is entitled to N35, 963,185.85 (Thirty five million, nine hundred and sixty three thousand one hundred and eighty five naira, eighty five kobo) as lump sum retirement payment and N7, 163,981.24 (Seven million, one hundred and sixty three thousand nine hundred and eighty one naira, twenty four kobo) as annual pension.
⦁ A DECLARATION that the Claimant is entitled to the sum of N7, 678,972.06 (Seven million, Six hundred and Seventy Eight thousand, Nine hundred and Seventy Two naira, Six kobo) being the shortfall of pension lump sum and N1, 912,094.70 (One million, Nine hundred and Twelve thousand, Ninety-Four naira, Seventy kobo) being the shortfall of monthly pension due to the Claimant from April, 2015 to June, 2016.
⦁ AN ORDER directing the 2nd defendant to pay the Claimant, the sum of N7,678,972.06 (Seven million, Six hundred and Seventy Eight thousand, Nine hundred and Seventy Two naira, Six kobo) being the shortfall of pension lump sum, the sum of N1, 912,094.70 (One million, Nine hundred and Twelve thousand, Ninety-Four naira, Seventy kobo) being the shortfall of monthly pension due to the Claimant from April, 2015 to June, 2016 and the sum N596,998.44 (five hundred and ninety six thousand, nine hundred and ninety eight naira, forty four kobo) as monthly pension henceforth.
⦁ Costs of prosecuting this action assessed at ₦1,000,000.00 (One Million Naira) only.
Upon being served with the Claimant’s Originating Processes, the Defendants filed Defence Processes on 02 November 2016. Defendants amended their Defence Processes by Order of Court made on 12th December 2017. In response to the Defendants’ Amended Statement of Defence, the Claimant filed a Reply to the Amended Statement of defence dated 19 February 2018 but filed on 20 February 2018. Trial commenced in this Suit on 21 February 2018, with the Claimant testifying in person as (“CW”). She was subsequently cross examined on 12 April 2018 by the Defendants’ Counsel. On 05 June 2018, the Defendants’ first witness, Mr. Lawrence Agbara (Account Officer and the Head of Operations and Finance for the 2nd Defendant) testified for the Defendants as (“DW1”) and he was thereafter cross-examined by the Claimant’s Counsel. Mrs.UchennaOnyia (Training Adviser for Non-Technical Functions and Leadership Development for the 1st Defendant) testified for the Defendants as (“DW2”) on 17 July 2018 and was cross-examined by the Claimant’s Counsel on the same day; after which trial was concluded.
⦁ Facts of the Case:
The Claimant is a Computer Scientist with over 20 years work experience. She was offered employment as a Business Analyst with the 1st Defendant on 13 April 1999 and she accepted the offer and resumed duty at the Warri Office of the 1st Defendant on 14 June 1999. She states that she was 29 years old upon her employment with the 1st Defendant and believed she would retire on 08 March 2025 at the age of 55 in line with what was provided on the 1st Defendant’s Benefits for Nigerian Staff Miscellaneous Employment Conditions document (“January 1999 Note Annexure”) attached to her said letter of employment. She was on probation for a year and was subsequently confirmed by the 1st Defendant on 14 June 2000. She was formally disengaged from the services of the 1st Defendant on 23 March 2015 following a meeting with the erstwhile Senior Officials of the 1st Defendant who informed her that her name was on the list of employees to be disengaged/retired and at the time of her Retirement she was 45 Years of age. She stated that she was provided with an estimate of her pension benefits by the 1st Defendant which was calculated using the retirement age of 55 years and a retirement date of 2025. She went on to state that upon her disengagement from the services of the 1st Defendant, she contacted the 2ndDefendant(the Pension Fund Administrator set up by the 1st Defendant to manage the pension funds for the staff of the 1st Defendant) for the calculation and payment of her pension and discovered that there was a disparity in the estimate given by the 1st Defendant and the final calculations of her pension provided by the 2nd Defendant. She objected to the final calculations by the 2nd Defendant and was informed by the 2nd Defendant that the disparity was based on the calculation which used the wrong retirement date of 08 March 2025 at the age of 55. The retirement date of 08 March 2030 which signifies retirement age of 60 years occasioned a reduction in the pension benefits was wrongly used in the final calculations. She states that she had no notification of any change in her Normal Retirement Date (“NRD”) from the year 2025 to year 2030 as at the date of her disengagement..
To the Defendants however, the annexure to Claimant’s employment offer (the Benefits for Nigerian Staff Miscellaneous Employment Conditions (“January 1999 Note Annexure”)} included a note as it relates to “Retirement Age” under the caption PENSION FUND which states as follows: “THESE BENEFITS MAY BE REVIEWED BY THE COMPANY AT ANY TIME WITHOUT PRIOR NOTICE. The 1st Defendant maintains that the Claimant voluntarily accepted the terms of the offer of employment and as at the date the Claimant was offered employment by the 1st Defendant, the policy of the 1st Defendant was that the Normal Retirement Age (“NRA”) was 55 subject to change in the policy. The Policy also stated that the Pension Fund was only applicable to confirmed staff and that new staff would undergo a one year probation period before Confirmation. Based on the said policy at that time, the Claimant’s alleged NRA of 55 years would only have translated to the alleged NRD of 08 March 2025 when the Claimant’s employment becomes confirmed one year after in June 2000. In August 1999 whilst the Claimant was still on probation, the 1st Defendant by a Circular of the said date to all the staff communicated the change in its policy with respect to the NRA from 55 years to 60 years which was applicable to all staff employed as from 01 June 1999. According to the Defendants, in February 2000, the 1st Defendant again reaffirmed this change in policy and further documented through its Personnel Policies and Procedures 2000 (“Personnel Manual”)-(Exhibit D21) issued to all staff. Again on 03 March 2000, the 1st Defendant in continued reiteration of the change in policy, and to make its consistent position on change of NRA known to all staff published the NRA through its Circular of that date to all staff. The Defendant maintains that all Circulars were hand delivered or deposited on the table of all its employees at the material time and were also kept with the HR Department for further consultations. The change in policy was also further reflected in the Trust Deedand all these policy documents including but not limited to the Personnel Manual and the Trust Deed are uploaded on its internal online electronic website and links created thereon for all staff to access the provision of the NRA in the Policy Documents. It is Defendants’ case that as at the time of the Claimant’s Confirmation in June 2000 which was when she became eligible to benefit from the Pension Fund Scheme, the 1st Defendant’s policy with respect to the NRA had changed from 55 years to 60 years and remained as such to date making Claimant’s NRD to be 08 March 2030.
Defendants state that in 2004, during a restructuring exercise of the 1st Defendant, all details of each employee were collated on separate The SOFU 1-TO-1 Discussion Preparation Form (“SoFu Form”)-Exhibit D3 and given to each staff to verify the content, confirm the details, raise queries, correct misconstrued status and thereafter append their signature on the correct and corrected version. It is Defendants’ case that the Claimant corrected some details on her SoFu Form and thereafter appended her signature to confirm the status of her employment with the 1st Defendant in 2004 via the SoFu Form. . They note that the SoFu Form which the Claimant appended her signature to had the 08 March 2030 NRD reflected on it. Defendants thus contend that based on the contractual documents that bind the parties and all the surrounding facts, the correct date of 08 March 2030 was rightly used by the 2nd Defendant to calculate the Claimant’s final and actual Pension Benefit; and that the Claimant having benefitted from contents of the Policy documents which benefits also changed in the course of her employment like the NRA and NRD, cannot be heard to deny the existence or contents of the entire documents. Defendants state that Claimant had and still has both constructive and actual notice of the change in the NRA from 55 years to 60 years.
Claimant in Reply states that she never got from the 1st Defendant or from any other person the ‘Benefits for Nigerian Staff Miscellaneous Employment Conditions’ dated August 1999, and the ‘Personal policies and procedures dated 02/2000 (0200 policy), and the Circular No. XL titled Normal Retirement Age dated 3rd March, 2000. The Claimant denies any knowledge of the 2007 Trust Deed referred to by the Defendants and that no such Trust Deed was ever published on the website of the 1st Defendant. Claimant admits that the 1st Defendant published its human resources policies on its website but that up until the time she disengaged from the 1st defendant she was not aware of any link to read the provisions on retirement date of sixty (60). That, the 1st Defendant’s website had multiple menu options, in fragmented form with various hyperlink connections to various subjects as it may interest the employee an employee was free to choose which hyperlink to connect to for information. Claimant states that she had every right to legitimately expect to retire in 2025 at the age of fifty-five (55) years if her appointment is not terminated and she is not summarily dismissed. Claimant states that one of the reasons for accepting the unilateral disengagement was her belief that the retirement age for the calculation of her terminal benefit was to be fifty-five (55) years.
⦁ Arguments of Counsel:
Counsel for Defendants formulated a lone issue for determination:
⦁ Whether on the strength of pleadings and materials placed before this Honourable Court and in consideration of all the surrounding facts and circumstances, the Claimant has proven on the preponderance of evidence, that she is entitled to all or any of the reliefs claimed in the instant case.
In arguing this lone issue, Defendants submit that the Claimant is not entitled to any of the reliefs claimed against the Defendants as she has failed to place any relevant and/or material evidence before this Court to justify the grant of the reliefs sought. Defendants argue that the instant Suit is predicated on the Claimant’s purported lack of knowledge of the change in her NRA and NRD on the basis of which she makes a claim for additional pension sum. Defendants argue that Claimant was aware of the policy change which put her age of retirement at 60 years. That there is evidence that on 03 of March 2000, 9 months after the Claimant resumed work but before she was confirmed, a circular titled “Normal Retirement Age” which was admitted in evidence as Exhibit D22 was issued to all staff of the 1st Defendant. This circular confirmed that the NRA had been changed to 60 years. They argue that in the Shell Nigeria Staff Non-Contributory Pension Trust Deed and Regulations of the 1st Defendant (“Trust Deed”) admitted in evidence as Exhibit D23, the NRA was stated to be 60 years. The Trust Deed in Section 3.1 (c) on page 16, provided specifically that the NRA for any staff who joined the 1st Defendant after 01 June 1999 shall be 60 years. The Claimant’s Contract of Service (Exhibit C2/D11) stated that the Claimant shall be employed as from 14 June 1999 and the Acceptance Slip of the Defendant being Exhibit D15 confirms the position. They therefore submit that the Claimant had submitted herself to the provisions of the Policy and even the Trust Deed when she accepted the 1st Defendant’s offer of employment with its conditions.
On the issue of Claimant’s knowledge of the alteration of the NRA and the consequent change of her NRD, Defendants argue that the Claimant had both constructive/implied and actual notice of the change in the NRD. Constructive via Claimant’s status as a computer scientist of over 20 years’ experience and her admission that she was aware that there were links to the Policy Manual of the 1st Defendant on the website and she had access to same. Actual notice based on the content of The Chip Lump Sum Advance Form-Exhibit D2 and The SOFU 1-TO -1 Discussion Preparation Form-Exhibit D3 which Claimant admitted that she signed in 2004 and 2006 respectively. Defendants referred to Claimant’s statement that:
I signed D2 on the 22/5/2006. I signed the SOFU form on 26/10/2004. On exhibit D3, it has provided that the NRD contract expiry date is 8/3/2030. By 8/3/2030, I will be 60 years.
Defendants argue that as admitted by the Claimant above, very conspicuously stated on these forms is the fact that the Claimant’s NRD is 8 March 2030 at which time she would be 60 years. They submit that this establishment beyond every shadow of doubt shows that the Claimant signed these forms long before she opted for early retirement and she was aware that her NRD was 60 years and not 55 years.
On Claimant’s pension sum claims, Defendants submit that the Claimant’s final pension calculation as advised by the 2nd Defendant was correctly calculated in line with the Claimant’s terms of employment, the 1st Defendant’s Internal Circular, the Policy Manual and the Pension Fund Trust Deed and Regulations which provides the parameters for calculating the pension entitlements due to the Claimant.
On her own part, Claimant set the following issues for determination:
⦁ Whether having regard to the terms of the contract of employment between the Claimant and the 1st Defendant, the agreed retirement age of the Claimant was 55 (fifty five) years with a normal retirement date of March, 2025 up until she was disengaged from the 1st Defendant’s services in March, 2015?
⦁ Whether the 1st and 2nd Defendants based on Exhibit D23 or any other document individually or jointly altered the agreed contractual retirement age of the Claimant from 55 (fifty five) years with a normal retirement date of March, 2025 to 60 (sixty) years with a normal retirement date of March, 2030 to the knowledge of the Claimant?
⦁ Whether the Claimant is entitled to the sum of N35, 963,185.85 (Thirty five million, nine hundred and sixty three thousand one hundred and eighty five naira, eighty five kobo) as lump sum retirement payment and N7, 163,981.24 (Seven million, one hundred and sixty three thousand nine hundred and eighty one naira, twenty four kobo) as annual pension calculated on the basis of the retirement age of 55 (fifty five) years with a normal retirement date of March, 2025 as detailed in Exhibit D16?
⦁ Whether the Claimant is entitled to the sum of N7, 678,972.06 (Seven million, Six hundred and Seventy Eight thousand, Nine hundred and Seventy Two naira, Six kobo) being the shortfall of pension lump sum and N1, 912,094.70 (One million, Nine hundred and Twelve thousand, Ninety-Four naira, Seventy kobo) being the shortfall of monthly pension due to the Claimant from April, 2015 to June, 2016?
⦁ In consequence of the success of issues 3 and 4 above, whether the Claimant has established her entitlement of the assessed sum of prosecuting this suit given to be ₦1,000,000.00 (One Million Naira) only?
Claimant in arguing issue one submits that from the clear terms of exhibit C1 which is binding on the Claimant and the 1st Defendant, the agreed retirement age of the Claimant was set to be 55 years. She also submits that with respect to issue two, Claimant never had any knowledge of any change to her retirement age. On issues 3 – 4, Claimant submits that relying on the computation of her entitlements, made by 1st Defendant, she was entitled to her Claims.
Defendants in their Reply Address responded to the issues raised by the Claimant and maintained their position stated in their final written address. On Claimant’s submission that “entitlement to pension being a statutory requirement cannot be termed a benefit that can be reviewed without any mutually agreed decision”, Defendants submit that the 1st Defendant did not review the entitlement to pension of the Claimant as alleged, rather the 1st Defendant reviewed the Normal Retirement Date of all its employees of which the Claimant is one.
⦁ Decision:
On the strength of pleadings, evidence adduced and exhibits placed before this Honourable Court, there are no contestations on Claimant’s employment status. Both parties agree that the 1st Defendant reserved the right to review the employment benefits of its employees at any time. Claimant however disputes that 1st Defendant did in fact review her Retirement age from 55 years to 60 years as there was no formal notice to her in that respect. There is also no disputation on what is due to the Claimant as her retirement benefit. It is the age of retirement that determines the amount due to be paid. If it is 60 years, then Claimant’s Claim succeeds, but if it is 55 years, Claimant’s case fails. The real issue in dispute between parties therefore has to do with if 1st Defendant could, and did, change Claimant’s retirement age from 55years to 60 years.
In consideration of this, I adopt the following issues for determination:
⦁ Whether Claimant’s age of retirement had effectively been changed from 55years to 60 years.
⦁ Whether Claimant is entitled to her Claim.
When parties with the capacity to bargain or as free-bargaining agents negotiate and agree on such terms and conditions as they think fit and proper; the parties are bound by the terms of their contract – Udemah v. Manager Coal corporation (1991) 3 NWLR (part 180) 477, Ejitagha v. F.H. M. B.(1995) 2 NWLR (part 376) 189. They are so bound until they mutually agree to vary them. Any unilateral variation of the terms and conditions is of course a breach of contract – Alamu v. AfroteeTechinical Services (Nig.) Ltd (1986) 2 Q L.R.N 126. In Idoniboye-obuv. NNPC [2003] 2 NWLR (Pt.805) 589 at 652 A-C ,Niki Tobi JSC stated that:
A party who has opened his heart, mind and eyes to enter into an agreement is clearly bound by the terms of the agreement and he cannot seek for better terms midstream or when the agreement is subject of litigation, when things are no longer at ease. Although a party may seek for better terms, the Court is bound by the original terms of the agreement and will interprete them in the interest of justice….”
It is the responsibility of the Court to enforce the agreement of parties as evidenced in their terms of engagement. The terns may be found in one or several documents. Where several documents form the conditions of employment, they must be read together. See Udeagu v. B.C.C.Plc. (2008) 2 NWLR (Pt. 1071) 378, Ondo State v. Folayan (1994) 7 NWLR (Pt.354) 1 at 25; See also Artra Industries Nig Ltd v. The Nigerian Bank for Commerce & Industry [1988] 4NWLR (Pt. 546)357 at 375. In the case of Evans Brothers (Nig.) Ltd. V. A.S. Falaiye(2002) 47 WRN 74 it was held that the terms and conditions of employment contained in a booklet and delivered to a worker with the letter of appointment form an integral part of the terms of the contract of employment. Again in Agbareh&Anor v NIMR & 2 Ors(2008) 1 SC (Pt.iii) 88 at 122 the court stated that it is trite law that in the interpretation of statutes, instruments and agreements, regard must be had to the entire documents forming part of that agreements or instrument.
I find it imperative to determine first and foremost, the document(s) that constitute the Claimant’s terms and conditions of employment. Both parties agree that Claimant’s employment is constituted by Exhibit C1 and C2. Claimant disputes that Exhibit D23, the Trust deed executed between the Defendants on pension matters, applies to her employment since she was not privy to the agreement. I find this argument to be inconsistent with Claimant’s case. The Claimant herself stated that 2nd Defendant:
Is a body incorporated for the sole purpose of administering the pension funds of employees of the 1st defendant and the responsibility of calculating and disbursing retirement benefits to eligible retirees of the 1st Defendant.
If the above is the position, then exhibit D23 would of necessity apply to the employees of 1st Defendant, the Claimant inclusive. In exhibit C2, which is Claimant’s contract of employment, clause 3 referred to Claimant joining the Company’s Pension Fund, subject to the consent of the Trustees. This presupposes knowledge of the existence of the Pension Fund, and its application. Claimant in her case acknowledged the role of the 2nd Defendant, the operators of the Pension Fund.
Again, certain exceptions have been judicially established on the privity of contract rule. In Registered Trustees of Master’s Vessel Ministries (Nig) Incorporated v. Emenike & Ors, (2017) LPELR-42836(CA), the Court of Appeal recognized the institution of a Trust Deed as an exception to the rule on privity of contract. It held that:
The doctrine of privity of contract simply states that, as a general rule, a contract cannot confer rights and obligations on persons not party to the contract. A contract is only enforceable at the instance of parties to it and a third party is thus, generally prevented from seeking the enforcement or otherwise of a contract to which he is not a party. See Dunlop Pneumatic Tyre Company Ltd. v. Selfridge & Company Limited (1915) A.C 847, Makwe v. Nwukor (2001) 14 NWLR Pt. 733 Pg. 356.
There are however, exceptions to this general rule. Where agency relationship can be established, where a deed of sale of family land had been executed without the consent of the members of the family, where a trust is created for the benefit of a third party are some exceptions to the general rule of privity of contract.” Per OGUNWUMIJU, J.C.A. (Pp. 14-15, Paras. D-B).
In Rebold Industries Ltd v. Magreola & Ors (2015) LPELR-24612(SC) the Supreme Court recognized the exception to the privity rule as follows:
Again, paragraph 339 thereof relates to a situation where a trust is created for the benefit of a third party who was not a party to an agreement containing a promise creating the said trust. In such circumstance, the said third party can enforce the promise against the promisor only if he can show the contracting promisee is a trustee for the 3rd party and that the promise was intended to create a trust and that the third party joins the promisee in the action to enforce the promise.
By all these, I find that Exhibit D23 constitutes part of the documents that regulates Claimant’s employment, being a Trust Deed for the dispensation of pension to the employees of 1st Defendant. To find otherwise, in my view, would lead to a total collapse of Claimant’s claim as it is predominantly for retirement entitlements payable by the 2nd Defendant acting for the 1st Defendant. If the Trust Deed is not applicable to the Claimant, then what will 1st Defendant use to compute Claimant’s entitlements as Claimant has not referred to any other document to found this action.
It is a known practice for employers to express aspects of conditions of service in documents such as Handbooks, Rule Books, and Regulations. Where they are incorporated, they become part of the employees contract of service. Parties are agreed that communications and policies are posted on the Defendants’ websites and constitute the Defendants Personnel Policies and Procedures 2000 (Exhibit D21). Claimant’s agreement is obvious in her evidence that:
The Claimant admits paragraph 5O of the statement of defence only to the extent that the 1st defendant published its human resources policies on its website and states that up until the time she disengaged from the 1st defendant she was not aware of any link to read the provisions on retirement date of sixty (60) on the 1st defendant’s website. The Claimant states further that the human resources policy of the 1st defendant was published on the 1st defendant’s website, which had multiple menu options, in fragmented form with various hyperlink connections to various subjects as it may interest the employee and on that basis the employee was free to choose which hyperlink to connect to for information.
Employers’ Handbooks/Regulations/manuals have been recognised as constituting part of the conditions of service of employees. See Olatunbosun v. NISER Council (1988) NWLR (Pt.80) 25, Texaco (Nig.) Plc v. Kehinde (2001) 6 NWLR (Pt.708)224, and
Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt.62)577.
This was confirmed during cross examination when Claimant stated that, ‘I agree that I am bound by the Manual if it is communicated to me’. I find that exhibit D20 constitutes part of Claimant’s conditions of employment. The issue of Claimant’s awareness of the contents of the Personnel Policies shall be considered later.
Now, to consider issue one raised by the Court.Contracts of employment like all other contracts, their creation and termination are both subject to the general principles governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated.” Per Karibi-Whyte, J.S.C. (P.133, Paras.A-C)-Olaniyan v. University of Lagos (1985) NWLR (Pt.9)599. Where contract of employment is governed by a written contract and if there is any dispute or claim with regard to termination or dismissal from employment, the higher courts have always held the parties bound to the terms of their contract. In all contracts of employment, the courts must be wary of looking outside their terms because the terms govern the relationship between the employer and the employee – Emenite Ltd. v. Oleka.(2005) 6 NWLR (Pt.921)350.
In this case, there are clearly documents that constitute/can constitute the terms of contract of the Claimant. I have gone through the contents of the identified documents and what they provide in respect of the issue of Claimant’s retirement age.
Exhibit C1 is Claimant’s Offer of Employment dated 13th April 1999. It has no provision on retirement age. It however has an attachment titled, ‘Benefits for Nigerian Staff: Miscellaneous Employment Conditions’. It has the following provisions:
PENSION FUND
All confirmed staff are automatically members of this fund. Members pay no contribution to the fund which is financed entirely by the company. Retirement age is 55 years and you should have completed 15 years service by your 55th birth day to be eligible for the maximum separation benefits. Your HR adviser will explain this in a greater detail on request.
NOTE:
THESE BENEFITS MAY BE REVIEWED BY THE COMPANY AT ANY TIME WITHOUT PRIOR NOTICE.
Another document issued to Claimant is exhibit C2 titled, ‘Contract of Service –Shell Nigerian’. It provides that:
You agree during your employment … to obey all applicable rules, regulations and other practices from time to time in operation of the guidance and conduct of staff employed by us, or by any of our Associated Companies.
This document does not have any further provisions on pensions but refers and incorporates the Rules, Regulations and other Practices of the 1st Defendant. It also makes the Claimant’s employment effective from 14th June 1999.
Exhibit C3 is the confirmation letter which makes no mention of any changes in Claimant’s status.
Exhibit D21 is the 1st Defendant’s Personnel Policies and Procedures dated 02 2000. It provides that:
“12.5 – Retirement
Effective 1st June 1999, the Normal Retirement Age (NRA) for SPDC is 60 years. Hence the Normal Retirement Date (NRD) should coincide with the date the employee is 60 years old.
However, individuals can elect at age 50 whether to retire normally at age 55 or any succeeding year up to age of 60. Prior to that election being made, in the absence of election once it is due, the individual’s NRA will be deemed to be 60 years. Thereafter, it will be the elected age (i.e. 55, 56, 57, 58, 59, or 60).
Early retirement can be considered when the employee has served for at least 15 years and is 45 years of age. It is only granted at the discretion of the Company.”
The Shell Nigeria Staff Non-Contributory Pension Trust Deed and Regulations of the 1st Defendant (“Trust Deed”) admitted in evidence as Exhibit D23, stated the retirement age to be 60 years. That Trust Deed in Section 3.1 (c) on page 16, provided specifically that the NRA for any staff who joined the 1st Defendant after 01 June 1999 shall be 60 years. It also provides for early retirement in the following terms:
3.2 Subject to the Founding company’s discretion, an employee covered by the provisions of Regulation 3.1(a) above who is 45 years old and has completed at least 15 years of Accredited Service may be eligible to receive an early pension.
The relevant question is, could the Claimant be taken not to be aware of the contents of Exhibit C21 and C22 which contain the provisions of the retirement age. Exhibit C21 is dated February 2000. Exhibit D23, the Trust Deed is made 13th day of December 2007.
I have also considered exhibit D22, which is a memo from the Managing Director to All Nigerian pensionable staff. This document made on 03, March 2000, informs the staff that the normal retirement age has been changed from 55 years to 60 years. Claimant states that she was not given D22. I hereby discountenance exhibit D22 in this judgment.
Claimant’s case depends on the acceptance of her denial that she was aware of the change in her retirement age from 55 years to 60 years. The following points aggregate to render her argument implausible:
⦁ The Claimant had submitted herself to the provisions of exhibits C1. C2, D21 and D23 when she accepted the 1st Defendant’s offer of employment vide exhibit D11. Exhibit C1 indicate the power of the 1st Defendant to review, without prior notice to the Claimant, the benefits accruing to the employment.
⦁ Exhibit D2 (application for chip lump sum advance) is a document where Claimant stated her retirement date to be in 2030, which was when Claimant would have turned 60 years. This form was completed in May 2006.
⦁ Exhibit D3 is another form completed by Claimant where again her retirement date is stated to be 08-Mar-30. This form was completed in 2004. It is Claimant’s SoFu-1-TO-1 Form (SoFu Form) which she signed to confirm her status with the 1st Defendant. During cross examination, Claimant accepted that:
I signed exhibit D2 on the 22/5/2006. I signed the SOFU form on 26/10/2004. On D3, it has provided for NRD contract expiry date as 8/3/2030. By 8/3/2030 I will be 60 years.
I do not find any evidence challenging exhibits D2 and D3.
⦁ Exhibit D21 had existed from year 2000 and is available on the Company’s website. The Claimant admitted this fact and states that there was no provision of her contract making it mandatory for her to check the websites or to check the particular site that had the provision on retirement.
⦁ The fact that the provision for early retirement at 45 years, which the Claimant has accepted, is provided in the same paragraphs of exhibits D21 and D22, where the provision for 60 years retirement is provided effective 1st June 1999. The provision for early retirement was not in exhibits C1 and C2 but appears in exhibits D21 and D22.
⦁ The position the Claimant held in the 1st Defendant and her trainings make it difficult to accept that the Claimant did not avail herself of the information in the Trust Deed and the Personnel Policies and Procedure Manual(in both hard and soft copies); especially in the light of exhibits D2 and D3. Claimant had stated in her evidence that:
I know that the human resources policy of the 1st Defendant was published on the 1st Defendant’s website which had multiple menu options, in fragmented forms with various hyperlinks connections to various subjects as it may interest the employee and on this basis the employee was free to choose which hyperlink to connect to for information….
During cross examination, Claimant reiterated that:
There is no provision in exhibit C1 for the 45 years I took benefit. In my 15 years with 1st Defendant, I am aware that 1st Defendant has a staff manual. I cannot recognize the manual in hard copy. I only see it in segments on the web site. I agree that I am bound by the manual if it is communicated. I do not know if the policy provides that it should be communicated as a basis of being bound. Yes, I am not aware of the contents of the manual in its entirety. The manual is on the company’s website but in segments. I had access to the 1st Defendant’s home page website….
It is true that the website had many links and an employee would choose which to go to. It is correct that there are some links I never opened.
Claimant in her evidence further stated that no Trust Deed was ever published on the website of the 1st defendant. This suggests that Claimant had gone through the website to make such a categorical statement.
7. Claimant does not challenge the powers of the Defendants to change the benefits accruable to her. She does not also challenge the legality of Exhibits D21 and D22.
8. Assuming it is believed (which it is not) that Claimant was not aware of Exhibits D21 and D22, and/or the information they contain and yet signed exhibits D2 and D3 which incorporates a different date of retirement contrary to what is known to her; it would amount to the highest level of negligence on her part, which the Court cannot remedy for her at this stage.
9. Exhibit DC4 shows a mutual agreement on Claimant’s voluntary disengagement. In Zakirai v. Muhammad &Ors(2017) LPELR-42349(SC) it was restated that:
It is an elementary principle that documentary evidence is used as a hanger to test veracity of evidence, whether oral or by affidavit – see Gbileve V. Addingi (supra), Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445 and Fashanu V. Adekoya (1974) 4 SC 83. Thus, documentary evidence is a hanger to base other pieces of evidence.In political cases, the only proof of winning of an election is the election result duly issued; mere averments cannot stand up to that. The Court below was right to place a greater value on documentary evidence, which bears eloquent testimony to what happened – See Aiki v. ldowu (2005) 9 NWLR (Pt 984) 47, wherein it was observed- Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.” Per AUGIE, J.S.C. (P. 73, Paras. A-F)
Based on the above, it is finding that Claimant had both actual and constructive notice of the provisions on her retirement age being 60 years. If that is so, then Claimant’s entire case crumbles as it is hinged on the assertion that her retirement age was 55 as originally agreed; and that the change to 60 years was not brought to her notice.
On issue two formulated by the Court, whether Claimant is entitled to her Claim; I find that the findings on issue one dissipates any need to make further findings on issue 2. The effect is that this action fails. The suit is hereby dismissed. I make no order as to cost.
Judgment is entered accordingly.
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Hon. Justice Elizabeth A. Oji PhD.
