IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BOFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI
DATE: THURSDAY, MARCH 5, 2020 SUITNO: NICN/LA/107/2016
BETWEEN
NKIRUKA LUCY OBINEME } CLAIMANT
AND
UNITY BANK PLC } DEFENDANT
REPRESENTATION
Abiodun Olabampe Esq. for the claimant.
Waheed Kasali Esq. for the defendant.
JUDGMENT
The Claimant, by a General Form of Complaint dated and filed on February 22, 2016, which the Claimant amended on November 4, 2016, filed this suit and seeks for the following reliefs:
- A Declaration that the non-payment of the Claimant�s outstanding entitlements by the Defendant upon termination of her employment is unlawful.
- The sum of N3,286,184.28 (Three Million, Two Hundred and Eighty-Six Thousand, One Hundred and Eighty-Four Naira, Twenty- Eight Kobo) being the outstanding entitlements due and payable to the Claimant by the Defendant upon termination of employment of the Claimant, which the Defendant has refused and/or neglected to pay despite repeated demands.
- Interest on the said sum of The sum of N3,286,184.28 (Three Million, Two Hundred and Eighty-Six Thousand, One Hundred and Eighty Four Naira, Twenty Eight Kobo) at the rate of 10% per annum from 9th June, 2015 until judgment is entered and thereafter at the rate of 5% per annum until the judgment is fully liquidated.
- Costs of the action including but not limited to Solicitors fees
The Defendant upon filing it Amended Statement of Defence on the 6th of March, 2017, seeks for the dismissal of this suit with substantial cost on the following Grounds:
- The Claimant suit is frivolous, vexatious, calculated to mislead the Court and instituted to enrich her illegally.
- The Claimant suit is speculative, and has no basis in law whatsoever.
In support of her claim, the Claimant testified for herself by adopting her Written Depositions and also tendered 15 documents (Exhibits CWB � CWP). The Defendant in its defence called one witness in person of one Mr. Jubril Ayeni of its Human Resource Department and tendered six (6) documents (Exhibit D1-D6).
THE CASE BEFORE THE COURT
This case, NICN/LA/107/2016, is one of thirteen similar suits assigned to this court, the 12 other suits are: NICN/LA/113/2016, NICN/LA/114/2016, NICN/LA/ 115/2016, NICN/LA/131/2016, NICN/LA/134/2016, NICN/LA/137/2016, NICN/ LA/140/2016/NICN/LA/148/2016/NICN/LA/149/2016/NICN/LA/151/2016, NICN /LA/166/2016 and NICN/LA/192/2016.
The Defendant in all these cases is one and the same; claims of the respective Claimants against the Defendant in all the 13 suits are the same, the Counsel for the parties in all the 13 suits are the same. Now, sections 36 & 37 of the Trade Dispute Act 2004 and section 14 of the NIC Act 2006 enjoin this Court to do all things as are necessary and avoid multiplicity of suits. In this regard, parties and their Counsel agreed that all the directions and orders made in the instant case together with the final judgment shall abide the other 12 sister cases. This was, however, not to affect the enrolment of separate judgment for the cases depending on the outcome of the present case.
The case of the Claimant is that she was employed by the Defendant on 20th May, 2009 vide Exhibit CWB and prior to her disengagement from the service of the Defendant on June 9, 2015 vide Exhibit CWC, she has worked for the Defendant for six (6) years. The Claimant alleged that at the time her appointment was termination, her Annual Compensation package as Assistant Manager was N7, 181,131.70 as shown in Exhibit CWK. The Claimant commenced this action claiming for (i). 12 months in the sum of N799, 709.94 at the rate of N66, 642.49 per month, (ii) 105 days backlog leave in the sum of N2, 065,805.01 and (iii) Interest on the gratuity invested by the Defendant at the agreed rate of 5% per annum from January 2015 to September, 2015 in the sum of N420, 669.34.
The case of Defendant is that gratuity scheme was abolished on the 1st day of January 2015 as stated in the Termination of Gratuity Scheme Agreement dated 3rd February, 2016 i.e Exhibit D4. It is the Defendant�s case that it has stopped commuting leave backlog to cash, and same was communicated to employees of the Bank via Exhibit D2 (Portal Announcement dated 10th of February 2014) and Exhibit D3 (the internal memo dated 26th January 2015). It is also the case of the Defendant that the Claimant was paid her entire gratuity and entitlement due to her as reflected in Exhibit D6(Statement of Accounts). Thus the Defendant is in no way indebted to the Claimant in this suit.
THE SUBMISSIONS OF THE DEFENDANT
At the close of evidence, parties filed their final written address and same were subsequently adopted.
Learned Counsel to the Defendant distilled two issues for determination in his Final Written Address, which are;
- Whether or not some of the documents tendered by the Claimant are admissible or of any probative value?
- Whether the Claimant has proved her case on the balance of probability to be entitled to the claims sought?
In arguing issue one, learned Counsel to the Defendant challenged the admissibility of Exhibit CWL Statement of Terminal Benefit of Ajibade Olayemi on the basis of relevancy. Counsel stated that Mr.Ajibade Olayemi is neither a party to this suit nor was he employed under the same terms and conditions as the Claimant herein.
Counsel submitted that the basis of admissibility is relevance. Counsel relied on section 1 of the Evidence Act 2011 and the cases Dr. Ufere Torti v. Chief Chris Ukpabi & Ors.(1984) 1SCNLR 214 @ 236-237, Ogbunyiya & 5 Ors v. Obi Okudo (1979) 6 – 9, 32; (1979) ANLR 105 at 112- 113, Oshunrinde v. Akande (1996) 6 SCNI 183 at 199 – 200; (1996) 6 NWLR (part 455) 383. Counsel argued that Exhibit CWL is not relevant to the case of the Claimant and the Claimant also failed/refused to state before this Court the nexus between the said exhibit and her case. Counsel therefore urged this Court to reject this piece of evidence as same is strange to the proceeding at hand. Counsel went on to state that during cross-examination, the Claimant was asked if she was a party to the contract between Mr. Ajibade Olayemi and the Defendant and that her answer was an emphatic no. That learned Counsel went further to ask the Claimant if she was employed or terminated under the same terms and conditions with Mr. Ajibade Olayemi and she said no. That the witness went further to informs the Court that Mr. Ajibade Olayemi left the employment of the Defendant Bank in July 2014. Learned Counsel argued that the answers given by the witness under cross-examination also represent good evidence which this Court is entitled to act upon. Counsel relied on the case of Independent National Electoral Commission v. Ifeanyi (2010) 1 NWLR [PART 1174] 98.
Counsel also submitted that the Claimant is trying to mislead this Court by tendering the terminal benefit of Mr. Ajibade Oyayemias an exhibit, that the simple fact that both the Claimant and Mr. Ajibade Olayemi had worked for the Defendant does not make the statement of terminal benefit of Mr. Ajibade Olayemi relevant to this suit. Counsel placed reliance on the case of Bossa & Ors v. Julius Berger Plc (2005) All FWLR (Pt. 290) 1503 at 1518. Consequently, Counsel urged this Court to reject Exhibit CWL and not to attach any probative value to it as Mr Ajibade Olayemi left the employment of the Defendant before the Executive Committee decision on backlog leave which is Exhibit D2 the Letter dated 10th February 2015(where the Bank�s Policy on backlog leave was changed) and Exhibit D3 (the internal memo) dated 26th January 2015.
Learned Counsel also challenged the admissibility of Exhibit CWK) Claimant�s Compensation package as at 1st October, 2008 as a Senior Manager. It is the contention of Counsel that Exhibit CWK, which the Claimant alleged to be her approved compensation package, has no identity of the maker, no authorship, no signature or the initials of the Defendant�s staff, and that during cross examination the Claimant claimed to have made it herself. Counsel therefore relied on the cases of Omega Bank (Nig) Plc. v. O.B.C. LTD. (2005) 8 NWLR (PT. 928) P.547, Aiki v. Idowu (2006) 9 NWLR (Pt.984) 47. It is the contention of Counsel that the said document in question is an unsigned document and that an unsigned document is a worthless piece of paper and therefore cannot confer any legal right or benefit on any party or the party who seeks to rely on it. In that respect, the law requires that the identity of the maker must be clearly and unambiguously disclosed. Counsel referred this court to the following cases: Adighije v Nwosu (2010) 12 NWLR (pt. 1209) P. 419@ 418; A.G; Kwara State v. Alao (2000) 9NWLR (PT. 671) P.89 @104. Counsel therefore urged this Court to reject Exhibit CWL in evidence as same does not meet the requirement for it admissibility. He referred this court to the case of Shanu v. Afribank (Nig) Ltd (2002) 17 NWLR (PART 795) 185 @ 221 � 222 C � E.
It is the submission of the learned Counsel that the above exhibits are computer-generated evidence which were not tendered in compliance with section 84 of the Evidence Act and are therefore as a consequence inadmissible. Counsel referred this court to the case of Akeredolu & Anor v Mimiko & Ors (2013) LPELR 20532 (CA). In view of the above authorities and arguments, Counsel submitted that Exhibit CWK, (Claimant Compensation Package as an Assistant Banking Officer) and Exhibit CWL, (Statement of Terminal Benefit of Ajibade Olayemi (ET) ID NO.03443) be held as inadmissible and expunged as the Claimant did not follow the pre-conditions laid down by section 84 of the Evidence Act as it relates to Computer generated evidence. He referred this court to the cases of: Kubor & Anor v Dickson & Ors 2012 LPELR � 9817 (SC); Maduekwe v Okoroafor (1992) 9 NWLR (Pt.263) 69 and INEC v AC (2009) 2 NWLR (Pt.1126) 524 at 595.
On issue two, which is a question of Whether the Claimant has proved her case as per the Statement of Fact? Learned Counsel to the Defendant submitted that it is the duty of the Claimant to prove her case against the Defendant. He relied on the Supreme Court case of Okoye v. Nwankwo [2014] 15NWLR PART1429 PAGE 93. Counsel submitted further that the burden of establishing a case here lies with the Claimant in this suit, same remain constant, and the proof or rebuttal can only shift, if and only if the Claimant discharged the burden on him. Counsel referred this Court to the case of OLADIPO V MOBA L. G. A. [2010] 5NWLR PT 1186 PG117 and also section.133 (1) of the Evidence Act, 2011.
It is the argument of Counsel that the Claimant�s outstanding entitlements can be divided into two heads i.e. Backlog leave to be commuted to Cash and the purported outstanding of gratuity. He submitted that the evidence before this Court, the Claimant has failed to show that she is entitled to this Claim. Counsel referred this Court to Exhibit CWD1- (The Defendant�s Employee Handbook) which he believed, states in its welcome address on page 12, that Management is at liberty to formulate, amend, and rectify Employee policies. Counsel submitted that the Contract of employment between parties is to be governed not only by the Defendant�s Employee Handbook and the Claimant�s letter of employment but also by various periodic memoranda and circulars of executive decisions made via portal announcements as in the instant case.
Learned counsel placed reliance on section 18 of the Labour Act and submitted that the Defendant�s Policy change is in line with the law which provides that it shall be unlawful for an employer to pay wages in lieu of the holiday mentioned in subsection (1) of this section to a worker whose contract has not been terminated. Counsel averred that the provision of section 18 (2) limits the holiday earning period where leave is deferred to not more than 24 months. In the instant case, the Claimant is claiming for 75 leave days outstanding and or accrued as at the date of her termination in the service of the Defendant, which is contrary to the spirit of the Labour Act and is therefore null and void. He submitted that the Defendant�s position compelling all staff to utilise their backlog leave is clearly in line with the law.
Counsel contended that during cross-examination when the Claimant was asked if she applied for leave while in the service of the Defendant she said yes. The Claimant was further asked if such evidence is before this Court. Her answer was I do not have any evidence before this Court. The witness was also asked if she is aware that the Defendant Changed its policy on backlog leave she said yes she was aware. Based on the above, Counsel submitted that fact admitted need no further proof. He referred this Court to the case of Chief Edmund I. Akaniwo & Ors vs. Chief O.N Nsirim & 3 Ors (2008) SCNJ 275. Citing the cases of Alao v. A.C.B. Ltd (1998) 3 NWLR (Pt.542) 339, Walter V. Skyll Nig Ltd. (2000) 13 WRN 60 (2001) 3 NWLR (Pt.701) 438,Learned Counsel submitted that the Claimant�s Claim in relation to backlog leave must fail not only because backlog leave being commuted to cash no longer forms part of her employment terms but also because such a claim do not conform with the provisions of Section 18 of the Labour Act.
With regards to the Claim for gratuity, counsel submitted that the Claimant�s Claim for gratuity on the basis of her employment with the bank for a period of 72 months is one that cannot be substantiated. Counsel stated that the payment of 72 months of gratuity is in line with the Bank�s policy as the Claimant had only been in the service of the Defendant for six complete years as at the date of termination as the non-completed years are not pro-rated for the purpose of gratuity as stated in the Defendant�s case. Counsel referred this court to Exhibit D4. Learned Counsel submitted that where a document is clear, the operative words in it are to be given their simple and ordinary grammatical meaning, one is not to read into the document what is not there. That a document duly pleaded and tendered once admitted is the best evidence of its content and therefore speaks for itself. He referred this Court to the cases Governor of Ogun State v Mr. Adegboyega Adebola Coker (2008) ALL FWLR (PT.406) 1900 AT 1913; Divine Ideas Limtied v Haja Mero Umoru (2007) ALL FWLR (PT.380) 1468 at 1500; and Vera Ezomo v New Nigeria Bank Plc & Anor (2007) ALL FWLR (PT.368) 1032 AT 1065′ per Lokulo-Sodipe J.C.A(Pp.31-332, paras E-A)
Counsel therefore argued that from the express words in Exhibit D4, to graduate by 10% for every additional year� that gratuity is to be paid on the basis of each year served in the service of the Bank, means the Claimant is only entitled to gratuity for period of 6 years (72 Months) as the full number of years completed by her in the service of the Defendant before the termination of the Gratuity Scheme.
Learned Counsel urged this Court to dismiss this leg of the Claimant�s Claims in its entirety.
THE SUBMISSIONS OF THE CLAIMANT
Learned counsel to the Claimant formulated three issues for determination in his final written address, to wit;
- Whether from the circumstances of the case, Exhibits AU9 and Exhibit AU10 tendered by the Claimant are relevant and admissible in the suit.
- Whether from the contract of employment between parties, the Claimant is entitled to have her backlog leave commuted to cash and paid to her as entitlement upon termination of her employment by the Defendant.
- Whether from the evidence led in the matter, the Claimant has proved her entitlement to all the claims in the suit.
In arguing the Claimant issue 1, which is similar to the Defendant 1st issue, Counsel referred this court to the cases of ADEYEMI v. OVBA (2017) All FWLR, Part 870, C.A. 1004 at pg. 1059, para C. IFARAMOYE v. STATE (2017) All FWLR, Part 917, S.C 1551, KURAMA v. R (1955) A.C. 197 at 203, AGBAHOMOVO v. EDUYEGBE (1999) 3 NWLR (pt. 594) 170 at 183, paras B-C, and section 1 of the Evidence Act 2011. It is the argument of learned Counsel to the Claimant that Exhibit CWK and CWL were pleaded by the Claimant in the Amended Statement of Fact. Counsel stated that from the pleading, the claim before this Court is the outstanding entitlements of the claimant, the calculation of which makes her annual compensation package relevant and no doubt applicable to the issue of her entitlements in the Defendant�s company. Counsel stated further that Claimant has shown in her pleading and facts in her claim that the calculation of her entitlements is based on her contract of employment, the employee handbook and policy of the Defendant, which makes her wages/annual packages at the time of her appointment relevant to the determination of the issues in the matter. Learned Counsel urged this Court to hold that Exhibit CWL pleaded in the amended statement of fact are relevant to the issue regarding the calculation of the Claimant�s entitlement in this case. He stated that the statement of terminal benefit of the said Ajibade Olayemi, a former staff of the Defendant was pleaded and tendered to show the manner of calculation of backlog leave communicated to cash by the Defendant. Counsel argued that the evidence of the former staff statement of terminal benefit which was not disputed by the Defendant was tendered to justify the calculation of the outstanding back log leave at the ratio of five (5) working days leave to make seven (7) leave days.
With regards to Exhibit CWK, Counsel submitted that the Claimant is entitled to tender secondary copy of the Claimant�s Annual Compensation Package upon the failure of the Defendant to produce the document in spite of the Notice to Produce given to the Defendant vide paragraph 3 of the Claimant�s pleading i.e. Amended Statement of Fact filed in the suit. Counsel relied on Order 40 Rule 28 and 29 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, Section 89 (a) of the Evidence Act, 2011, Section 91 of the Evidence Act and the cases of YUSUF v. OBASANJO (2006) All FWLR, C.A. 387 at 476, paras B-F, NWEKE v. STATE (2017) AllFWLR, Part 899, S.C. 323 at page 343, paras G-H. Counsel therefore, urged this court to hold that upon the failure of the Defendant to produce the Annual Compensation Package as required by the Notice to Produce, the Claimant is entitled to tender the copy of the Annual Compensation Package as secondary evidence of the document. Counsel submitted further that even if there is no such notice to produce as given in the pleading, the secondary evidence of the Annual Compensation Package (Exhibit CWK) will be admissible because from the nature of the case, i.e. the Claim for outstanding entitlement by the Claimant, a former employee of the Defendant, that the Defendant ought to know and knew that he will be required to produce Exhibit CWK at the hearing of the matter to assist the Court in the calculation of the terminal benefit and to render justice in the matter.
In response to the contention of the Defendant that Exhibit CWK and CWL were not tendered in compliance with Section 84 of the Evidence Act, learned Counsel to the Claimant submitted that the contention is unsubstantiated as necessary conditions for the tendering of the computer generated evidence were complied with. Counsel stated that the Claimant filed and served the Certificate of evidence pursuant to Section 84(4) of the Evidence Act, 2011 dated 12th February, 2018 identifying Exhibits CWK and CWL and given such particulars of the device involved in the production and signed by the Claimant. That the certificate being part of the process and proceedings of the court, was brought to the notice of the Court during trial placing reliance on the cases of AGBAHOMOVO v. EDUYEGBE (1999) 3 NWLR (pt. 594) 170 at 183, paras D-E and AGBAISI & ORS v. EBIKOREFE (1997) 4 NWLR 631.
In arguing issue 2, Counsel placed reliance on the cases of ODIASE v. AUCHI POLYTECHNIC (1998) 4 NWLR, (pt. 547) 477at 479, KATTO v. CENTRAL BANK OF NIGERIA, (1991) 9 NWLR (pt. 214) 126, OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599, CALABAR CEMENT CO. LTD v. DANIEL (1991) 4 NWLR 750. Counsel also relied on paragraph 5.2.1 the Employee Handbook, Exhibit CWd, and Chapter 14 of the Employee Handbook captioned Seperation. And submitted that in accordance with the Policy and terms of the Claimant employment, Public holidays and work free days that fall within a leave period are exclusive of annual leave. Counsel further relied on the cases of EBEINWE v. STATE (2011) 7 NWLR (Pt. 1246) 402 at 416, paras D and MONKOM v. ODILI (2010) 2 NWLR, (Pt. 1179) 419 at 442, Paras D-E.
It is the contention of Counsel that the evidence relating to the backlog leave of the Defendant to the effect that the Claimant having worked for six years is entitled to 180 days leave during the period of her employment with the Defendant was also admitted during cross examination of the Defendant�s witness. Counsel referred this court to the case of ADEOSUN v. GOV. EKITI STATE (2012) 4 NWLR (Pt. 1291) pg.581 at 600 A-B.
Counsel stated that Exhibit D2 and D3 are conflicting, inconsistent, illegal, null and void and cannot by any stretch of imagination alter the condition of employment between the Claimant and the Defendant as stated in the Offer of Employment and the Employee Handbook. It is the submission of Counsel that the two memos exhibit D2 and D3 are contradictory in the sense that while one stated that backlog leave will be forfeited by end of year 2014, the latter Memo of January, 2015 cancelled the earlier Memo and directed that staff should be encourage to utilized their back log leave. Counsel urged this Court to hold that the Memo seeking to cancel accumulated leave of staff is retrospective and illegal.
Counsel stated that the Defendant�s witness admitted during cross examination that the Claimant is entitled to 30 leave days for every completed twelve (12) months in the employment of the Defendant. Counsel argued that the Claimant having worked for six (6) years has by the contract between the parties earned 180 leave days and is entitled to the leave days as part of her lawful entitlement for services rendered to the Defendant. Counsel therefore urged this Court to note that the 105 days backlog leave were earned from 2009 till 2015 before the purported Memo of January 2015. Counsel referred this court to Exhibit CWF. Learned Counsel then submitted that there is no provision in Exhibit CWB (letter of employment) and the Employee�s Handbook (Exhibit CWD) permitting the amendment of the Employees Handbook for the purpose of forfeiting and/or divesting the Claimant and indeed any employee of rights, benefits, salary, allowances, and/or wages already earned or accrued while working with the Defendant under the contract of employment.
Learned Counsel also argued that by virtue of Exhibit CWF, the Claimant�s Leave History, the Claimant�s earned outstanding back log 54 leave days and 30 annual leave, totalling 84 days as at 10th February 2015. Counsel relied on the case of UNDERWATER ENGINEERING CO. LTD. & Anor. v. DUBEFON (1995) 6 NWLR, Part 400 156, and submitted that the Defendant though has the right to terminate the Claimant�s employment, cannot do so, with a policy retrospectively disentitling the Claimant to monetary claim for backlog leave days already earned and vested in the Claimant. Counsel also relied on section 18 and section 19 of the Labour Act, CAP L1, LFN, 2004.
It is submitted that in the interpretation of the provisions of a Statute, or the Constitution, where the language used is plain and unambiguous, effect must be given to its plain and ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. Its relevant provisions must be read together and not disjointedly. Counsel referred this court to the case of NYAME v. FRN (2010) 7 NWLR (Pt. 1193), page 344 at 399, Paras B-H. In view of the forgoing, counsel submitted that from the provisions of the Labour Act, every worker shall be entitled to leave days/holiday after twelve months in the employment of the employer and the employer may by agreement with the employee deferred the holiday earning till twenty-four months of continuous employment but not more. Counsel stated that the clear interpretation of Section 18(1) and (2) relates to the period within which an employee will be entitled to holiday while in continuous employment of an employee and does not in any way rendered illegal the accumulation of the entitlement. Counsel stated further that Section 18(3) of the Act, unmistakably states that it shall be unlawful for an employer to pay wages in lieu of the holiday mentioned in subsection (1) of the section to a worker whose contract has not terminated. Counsel argued that a worker whose appointment has been terminated can lawful claim and receives wages in lieu of unutilized holidays earned while in the employment of the employer.
It is the contention of Counsel that the submission of the Defendant that the Claimant outstanding leave days of 75 leave days is contrary to Section 18 of the Act which limits the holiday earning period to 24 months where leave is deferred is highly misconceived. In reply to the submission of the Defendant, learned Counsel to the Claimant submitted that Section 18(1) of the Act only regulates the period within which an employee should commence earning holiday period in any place of employment and does not in any way take away the earned and unutilised eave days as agreed in the contract of employment between the Claimant and Defendant. Counsel relied on the case of EMCON (NIG.) PLC v. BELLO (2012) All FWLR, Part 619, C.A. 1149 at 1170, para A, ENEKWE v. IMB (Nig) Ltd (2007) AFWLR (Pt. 349) page 1053 at 1081, paras C-D. Counsel urged this court to hold that the failure of the Claimant to utilize the backlog leave as at when due was due to the refusal of the Defendant to approve the leave over the period of her employment. He went on to submit that the Defendant cannot turn round to use a wrong created by it as a defence to the fulfilment of its obligation to the Claimant.
It is further submitted that the Defendant also admitted and relied on the Contract of Employment, Exhibit CWB and CWD and did not in any way pleaded in its defence that the Exhibits representing the contract between the parties are tainted with illegality. Counsel referred to the case of WEST CONSTRUCTION CO. LTD v. BATALHA (2006) 9 NWLR (Pt. 986), page 595 at 616, Paras G-G. 3.2.37. Counsel therefore prayed this Court to hold that the Claimant is entitled to have her unutilised backlog leave commuted to cash upon the termination of her employment by the Defendant.
On issue three (3) which is similar to the Defendant�s issue 2, Counsel placed reliance on the cases of WACHUKWU v. OWUNWANNE (2011) 14 NWLR (Pt. 1266), 1 at 36-37, paras G-C, ODOFIN & ORS. v. MOGAJI & ORS (1978) 11 NSCC 275 at 277, and argued that the Claimant�s claim is categorised into three heads of claim, i.e. the claim for backlog leave of 105 days in the sum of N2, 065,805.01, Balance of Gratuity for 12 months in the sum of N799,709.94 and Interest on the payoff amount invested at 5% from January to September, 2015.
With regards to the Back log Leave of 105 Days in the sum of N2, 065, 8053.01, Learned Counsel contended that the Claimant has led evidence to prove that she was employed by the Defendant on 20th May, 2009 and at the material time, she was an Assistant Manager. Counsel stated that by the contract of employment with the Defendant, the Claimant is entitled to 30 working days leave for every twelve months spent in the employment of the Defendant, which when computed would amount to 180 working days leave for the period in the service of the Defendant. That Out of the 180 days, the Claimant has unutilized a total of 75days at the date the termination of her employment by the Defendant. Counsel stated that by virtue of Exhibit CWd, the Employee Handbook, Paragraph 5.2.1, �Public Holidays and work free days that fall within a leave period are exclusive of annual leave�.
Counsel submitted that the 75 backlog leave days would equal to 105 days unutilized by the Claimant as leave days for the period he was in the employment of the Defendant and is accordingly entitled to be paid. It is also the contention of learned Counsel that the evidence led by the Claimant were not denied by the Defendant save for the allegation that the Defendant has by a memo changed its policy on back log and that the backlog leave entitlement no longer form part of the entitlement of the Claimant. Counsel therefore argued that a denial of a material allegation of fact must not be general or evasive, but specific. That every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. Counsel referred this court to the cases of OSHODI v. EYIFUNMI (2000) 13 NWLR (Pt. 684) 298 at 337, Para B, NWAKHOBA & 3 Ors. V. DUMEZ NIG. LTD. (2004) 3 NWLR 463.
It is the submission of Counsel that the Defendant having failed to deny the claim of the Claimant to backlog leave of 75 days in its defence, this Court should hold in the circumstances that the Defendant has admitted the fact that the Claimant has outstanding 75 leave days, which amount to a total 105 days leave when work free days are added to the leave days. Counsel placed reliance on Section 18(4) (a), (b) and Section 19 of the Labour Act and submitted that the Claimant is entitled to receive from the Defendant, full pay for one hundred and five (105) days as the period bears to twelve months and the Claimant�s Annual Compensation Package. Counsel went on that by Exhibit CWK, the Claimant Annual Compensation Package, which was further supported by Exhibit CWM and Exhibit CWN, it is evident that the Annual Compensation Package of the Claimant is the sum of N7, 181,131.70. Counsel argued further that with an annual compensation package of N7,181,131.70 for a period of 365 days, the Claimant is entitled to the claim of N2,065,805.01 which is the amount due to her as cash for the 105 days leave being the proportion of the days bears to 365 days. Learned Counsel urged this Court to draw inference from the evidence of the Defendant of the total emoluments of the Claimant per annum. Counsel stated that from the evidence of the Defendant, Exhibit D5, and the evidence of the Defendant�s witness on the calculation of gratuity and the submission of the Defendant, five (5) years was calculated as years spent by the Claimant for the purpose of her gratuity and she was paid the sum of N3, 998,549.99 being fifty per cent (50%) of total annual emoluments. Thus, by the Defendant�s evidence, the total annual emoluments/package of the Claimant at 100% as at date of termination is the sum of N7,997,099.98 (Seven Million, Nine Hundred and Ninety Seven Thousand, Ninety-Nine Naira, Ninety Eight Kobo). Counsel therefore submitted that this Court is empowered to evaluate all documentary evidence before it and make findings as may be necessary in the interest of justice. He relied on the case of AKINOLA v. WEMA BANK PLC (2015) All FWLR, Part 795, C.A.292, page 305, paras D-F.
Counsel submitted that the failure and/or refusal of the Defendant to produce the Annual Compensation Package of the Claimant despite the notice to produce in the Claimant�s pleading is a pointer to the conclusion that the Defendant deliberately concealed the facts of the Annual Compensation Package, which secondary evidence and/or computer generated evidence was tendered as Exhibit CWK. He relied on Section 167 of the Evidence Act 2011, and the cases of UDEAGHA v. OMEGARA (2010) All FWLR, Part 542, C.A. 1785 at 1804, Paras B-G, F.R.N. v. SANNI (2015) AFWLR, Part 763, C.A. 1832, at pg. 1861, paras C-E. Counsel therefore, urged this Court to hold that the evidence of the actual/up to date calculation of the Annual emoluments of the Claimant was withheld by the Defendant because it would impose heavier liability on the Defendant in respect of the unutilised back log leave. Counsel urged this Court to grant to the Claimant the sum of N2,065,805.01 as claimed for unutilised backlog leave of 105 days.
With regards to the Balance of Gratuity for 12 months in the sum of N799,709.94, learned Counsel urged this court to note that the Claimant by Exhibit CWB was employed on 20th May, 2009 and by the time of her disengagement from the service of the Defendant on 9th June, 2015, the Claimant had worked for six (6) years. Counsel referred to paragraph 3.1 of the Termination of Gratuity Scheme Agreement, Exhibit D4 and the case of UNION BANK v. OZIGI (1994) 3 NWLR (pt. 333) 385 at 403, paras F-G and submitted that save for the agreement that Staff that put in 5 years and above in the service of the Defendant will be paid gratuity, there is no provision in Exhibit AU14 specifying the terms of the gratuity scheme. Counsel submitted that having admitted that the Claimant was only paid gratuity for five years, the question is what is the basis for non-payment of gratuity for the remaining 12th months (1 year) spent by the Claimant in the service of the Defendant. Counsel further submitted that Exhibit D5 sought to be relied upon by the Defendant as basis for the payment of gratuity for only five years cannot support the basis for the payment of only 5 years out of 6 years. He relied on the case of Union Bank v. Ozigi supra. It is further submitted that Exhibit D5 is a mere proposal on Gratuity Scheme and not the terms of the gratuity scheme that is expected by Exhibit D4 (Termination of Gratuity Scheme Agreement) to be agreed between the Defendant and its Staff including the Claimant herein. Counsel therefore prayed this Court to hold that the Claimant having spent more than 5 years in the employment of the Defendant as agreed vide Exhibit D4, is entitled to receive gratuity for the full 6 years i..e. from 20th May, 2009 to 9th June, 2015 that she was in the employment of the Defendant. Counsel urged this court to hold that the sum of N799,709.94 (Seven Hundred and Ninety Nine Thousand, Seven Hundred and Nine Naira, Ninety Four Kobo) is due and payable to the Claimant.
With regards to the Interest on the pay-off amount invested at 5% from January to September, 2015, Counsel made reference to the paragraph 3.1 Termination of Gratuity Scheme Agreement, Exhibit D4 on negotiated gratuity package and stated that the agreement was never disputed by the Defendant as it was the basis on which gratuity was agreed and paid to the Claimant and other Staff of the Defendant. Counsel stated further that the Defendant admitted in evidence and as shown in Exhibit D6 (Claimant�s statement of account), that the gratuity was paid on 3rd September, 2015, a period of nine (9) months since January 1, 2015, the date the Claimant�s gratuity was placed on deposit at 5% interest per annum.
It is the Contention of Counsel that parties are bound by the terms of contract freely entered into. Citing the case of INTERDRILL (NIG.) LTD v. U.B.A Plc. (2017) All FWLR, Part 904, S.C. 1177. Counsel urged the Court to hold that having agreed to pay interest of 5% on the Claimant�s gratuity from January 1, 2015 till payment in September, 2015, the Defendant is estopped from denying liability for the interest payable on the Claimant�s kept as deposit in its account as agreed. He also urged this Court to award to the Claimant interest of 5% in the sum of N420,699.34 as Claimed on all her entitlement i.e. the gratuity paid on 3rd September, 2015 and the outstanding sum due to be paid in the suit.
DEFENDANT’S REPLY ON POINTS OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS
Learned Counsel in his reply on point of law argued that the Claimant argument in paragraphs 3.1.1 to 3.1.8 that Exhibits CWK and CW1 are relevant to her case simply because they were pleaded in her pleading, demonstrates a total misconception of the law because by the Claimant�s admission in paragraph 3.1.3 of her written address, the issues of whether a document is pleaded and relevant are entirely distinct issues which both determine admissibility. He relied on the case of Obi-Odu v. Duke (2006) 1 NWLR (Pt. 961) 375 at 400 (CA).
In respect of Exhibit CW1 which is the Statement of Terminal Benefit of Ajibade Olayemi, Counsel submitted that the facts pleaded by the Claimant relate to the employment of the Claimant (Nkiruka Lucy Obineme) and not Ajibade Olayemi whose employment was subject to an entirely different contract of employment, hence the lack of relevance to the Claimant�s Case. he referred this court to the case of Bemil Nig. Ltd. V. Emeribe & Ors 2009 LPELR 8732 CA.
In response to paragraphs 3.1.10 to 3.1.17 of the Claimant�s final written address, Counsel stated that the issue of secondary evidence or the notice to produce is not the crux of the matter; it was only canvassed by the Claimant to mislead this Court. Rather, the issue before the Court is the lack of identity or authorship of the document tendered by the Claimant which is an entirely distinct matter.
He went on to submit that Exhibit CWK (Defendant�s Approved Compensation Package for Claimant), as tendered by the Claimant cannot be described as secondary evidence as it is not a copy of an original document. It did not emanate from the Defendant at all. It is for this reason that it carries no mark, no authorship, unsigned and undated.
In response to paragraphs 3.1.18 to 3.1.21 of the Claimant�s written address, Counsel restated that the issue is not the non-filling of the certificate of evidence but rather the Claimant�s failure to tender same along with the other exhibits which means that the certificate is deemed abandoned. Counsel stated that it is untrue that same was brought to Court�s attention at trial.
In response to paragraphs 3.2.1 to 3.2.24 of the Claimant�s written address, Counsel argued that parties are bound by the terms of their contract voluntarily entered into and the Court is enjoined to construe the contract between parties freely. He referred this court to the cases of WAEC V. OSHINEBO (2006) LPELR 7739 C.A, AMODU V. AMODE & ORS (1990) LPELR 466 (S.C). Counsel argued that In the instant case, the Contract of Employment between the Claimant and Defendant undoubtedly includes the Employee Handbook which expressly provides that amendments which occur will be made known to staff through official recognized channels as was done by the Defendant via Exhibit D3 (Defendant�s Internal Memo of 26th January, 2015) and D4 (Termination of Gratuity Scheme Agreement dated 3rd February, 2015). Counsel referred to Exhibit CWB which is the Claimant�s Letter of employment dated 20th May, and submitted that the Claimant was well aware of the changes in Defendant�s policy in line with her contract of employment and so cannot turn around and ask to be paid cash for not going on leave. Counsel argued that a contract can be implied by the conduct of the parties themselves, citing the cases of Compagne Generale De Geophysique Nigeria Ltd V. Okparavero Memorial Hospital Ltd (2011) LPELR 3995 (CA) And Adedoyin V. Igbobi Devt Company Ltd (2014) LPELR 22994. Counsel submitted further that the Claimant can be held to have waived her right that she has to complain about that change in bank�s policy regarding backlog leave as was held in the case of NBC Plc v. Ubani [2013] LPELR-21902(SC). In view of the foregoing submissions and authorities, Counsel stated that the Claimant�s Claim for Backlog leave must fail and should be dismissed accordingly.
Counsel went on to submit that the Claimant�s submissions in paragraphs 3.2.26 to 3.2.35 of her address are also totally misconstrued in an attempt to mislead the Court. Counsel argued that whilst it is not in dispute that it unlawful to pay wages in lieu of holiday to a worker whose contract has not terminated, it is clear from the provisions of Section 18 (2) of the Labour Act, that a limit is placed on the holiday earning period to the effect that the holiday earning period cannot exceed twenty-four continuous earning months. The Holiday earning period of the Claimant in this instant case without a doubt exceeds the period of twenty-four months thereby making such a claim illegal.
In response to paragraphs 3.2.35 to 3.2.38 of the Claimant�s final written address, Counsel restate the case of Alao v. A.C.B. Ltd (1998) 3 NWLR (Pt.542) 339, and submitted that failure to plead illegality cannot allow the court to close its eyes to such illegality. Counsel averred that the point to be made about Section 18 of the Labour Act is that the Bank�s change of policy on Backlog leave was in compliance with the provisions of the law as the previous provisions of the Employee Handbook were in direct contravention of the Labour Act.
Counsel submitted that the argument of the Claimant in paragraphs 3.3.9 and 3.3.10 that the Defendant admitted the Claimant�s claim for backlog leave is grossly misconceived. Counsel stated that the Defendant defence is cogent to the effect that payments for backlog leave no longer form part of the contract of employment between the parties. That the Claimant�s monetary claim for backlog leave is therefore otiose and extinguished.
Counsel argued that the Claimant�s reaction on paragraph 5.2.1.2 of Exhibit CWD (Defendant�s Employee Handbook) as argued in paragraph 3.3.13 of the Claimant�s Written Address is also misconstrued.
In response to the Claimant�s argument in paragraphs 3.3.21 to 3.3.25 and reliance on the provision of Section 167 of the Evidence Act to the effect that the non-production of the purported Claimant�s annual compensation package by the Defendant meant that the document would be unfavourable to the Defendant if produced is misconceived, Counsel submitted that the said document the Claimant sought the Defendant to produce is a non-existent document and consequently, could not be produced by the Defendant.
In response to paragraphs 3.3.27 to 3.3.30 of Claimant�s written address, Counsel further submitted that the Claimant�s argument is grossly misconceived as the Claimant is blowing both hot and cold. That the Claimant is seeking gratuity for the period after 1st January 2015 by requesting for gratuity up to the period of termination (June 9 2015) despite being aware of the termination of gratuity scheme agreement (Exhibit D4) which she herself relied upon in her argument in paragraph 3.3.30 of her address. It is further submitted that it is only logical that since the Claimant only completed a period of six full years with the Defendant as at the time the Gratuity Scheme was terminated, he can only be entitled to gratuity for that period of six years. The period from January 2015 to June 9, 2015 can most certainly not be taken into account in the computation of the Claimant�s gratuity payment. Neither can the uncompleted year be computed as there is simply no basis for it as gratuity is only paid for years completed.
In response to paragraphs 3.3.41 to 3.3.46 of the Claimant�s final written address, Counsel stated that the Termination of Gratuity agreement only provides for 5% interest per annum on gratuity and not on all entitlements as surreptitiously being claimed by the Claimant. Counsel further stated further that since the Claimant�s terminal benefits including gratuity were paid to her on the 3rd of September 2015 after her termination, the Claimant�s gratuity was not in the custody of the Bank for up to a year as envisaged by the Termination of Gratuity Agreement. Thus, the element of annual interest does not come to play simply because the funds were not invested with the bank for up to the period of a year as envisaged by the agreement.
Learned Counsel therefore urge this Honourable Court to hold that based on the facts and evidence before it, the Claimant�s Suit is unsustainable and that the Claimant�s claim be dismissed in its entirety with cost.
COURT�S DECISION
Having carefully examined the process filled, the evidence led and the submissions of the learned Counsel in their final addresses, I shall start off with the Defendant�s objection regarding Exhibits CW2, Statement of Terminal Benefit of Ajibade Olayemi and Exhibit CWK, the Claimant compensation package.
The Defendant challenge the admissibility of the CWL on the ground that the person to whom it was addressed is not a party to the suit, that he was not employed under same terms and conditions as the Claimant and as such not relevant to the Claimant case. The Claimant�s reaction regarding Exhibit CWL is that it has satisfied the requirements for admissibility of documents and that it tendered to show the manner of calculation of backlog leave that were commuted to cash by the Defendant.
Now Section 6 of of the Evidence Act 2011 provides thus:
�Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others..”
In the case of Abubakar v. Chuks (2007) 18 NWLR ( Pt.1066) Tobi, JSC. Held at Pp.12-13, paras. F-A thus:
“A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible. Documents which are tendered to establish facts pleaded cannot be rejected on the ground of irrelevancy in so far as they confirm the facts pleaded. See Oyetunji v. Akaniji (1986) 5 NWLR (Pt. 42) 461. In other words, a document which is consistent with the pleadings is admissible, if the document is admissible in law.”
The Law is that for a document to be admissible in evidence, it must be pleaded, it must be relevant and it must be admissible in law. See ADEYEFA & ORS V. BAMBOYE (2014) LPELR � 22884 (SC).
Now the the Claimant in this case Claims among other things, for the payment of his unutilized leave backlog, the Claimant averred at paragraph 10 of the amended statement of facts thus:
The Claimant states that by the terms of her employment and the policy of the Defendant, her outstanding and unutilized leave days should be calculated for the purpose of commuting to cash at the ratio of five (5) working days to make seven 7 week days translating to a total outstanding backlog leave days of 105. The Claimant shall rely on Statement of Terminal Benefits of Okonkwo Emeka (BO) ID No. 01020 and Ajibade Olayemi (ET) ID No. 034432 whose appointments were terminated on 31st July, 2014 and others for the purpose of commutation to cash.
Now, Exhibit CWL is the computation of Terminal benefit pleaded at paragraph 10 above, the said staff is not a party to this suit, the Exhibit, as rightly argued by the Claimant,was tendered to show how the Defendant commuted to cash, computed and paid to its former staff the backlog of unutilized leave days after cessation of the employment relationship. This to my mind makes Exhibits CWL relevant in this case and is therefore admissible, the Defendant�s objection in this regard is hereby discountenanced and I so hold.
The Defendant also challenged Exhibit CWK on the ground that it has no authorship and was not signed. The Defendant also challenged both Exhibits on ground of non compliance with the provisions of S.84 of the Evidence act being computer generated evidence.
To the Claimant Exhibit CWK was tendered because of the failure of the Defendant to produce the original in spite of the notice to produce issued to the Defendant. On non compliance with the provisions of S.84 of the Evidence Act, the Claimant averred that the requirements under section 84 can be met by the person seeking to tender the document by given oral evidence or by filing a certificate to that effect and that the she has filed the said certificate in respect of the two Exhibits which certificate forms part of the processes in this suit and that the court has the right to look in to a document in the case file though not tendered before it.
I have carefully examined Exhibit CWK, I find that it is neither dated nor signed, it bears no name of addressee, there is also no covering letter validating it, I am therefore inclined to believe with the Defendant�s argument in this regard. The law as rightly argued by the Defendant, is that a document which ought to be signed and is not signed is a worthless paper. See Nwancho v Elem (2004) ALL FWLR (pt 225) 107, Aiki v Idowu (2006) ALL FWLR (part 293) 361, (2006) 9 NWLR (part 984) 47, Sarai v Haruna 2008 23 WRN 13. Failure of the Defendant to produce the computation of the Claimant�s terminal benefit is not a ground for the Claimant to tender an undated and unsigned document. For these reasons, I hold that Exhibit CWK is not admissible and it is hereby discountenanced for the purpose of this judgment.
The Defendant�s argument regarding the Claimant�s non compliance with Section 84 of the Evidence Act is equally discountenanced as there is a certificate of compliance in that regard duly filed by the Claimant in this case.
The Claimant case is essentially for special damages based on which she seeks for a declaratory relief and consequential orders . What is required of proof of special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence that would convince the Judge that he is entitled to an award under that head. See Kosile v. Folarin (1989) 3NWLR (Pt.107) Pg 1 at 13 Para E and Osinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All N.L.R. (Part 1) 153 at 156
The Claimant is contending that he is entitled to be paid gratuity for 72 months but was only paid gratuity for 60 months leaving a balance of 12 months unpaid which amounts to N799, 709.94 (Seven Hundred and Ninety Nine Thousand, Seven Hundred and Nine Naira, Ninety Four Kobo). This is the Claimant�s averment at paragraph 8 of the amended statement of facts which is in exact terms with paragraph 9 of the Claimant�s witness written deposition. The onus is now on the Claimant to prove his entitlement to the outstanding balance of the gratuity.
Now, it is not in dispute that the Claimant had joined the Defendant on May 20th 2009 and she was disengaged by the Defendant on June 9th, 2015. From May 20th, 2009 to June 9th 2015 is a period of six years.
The Claimant tendered Exhibit CWD, the Defendant�s Employee Handbook in support of this claim..The Defendant�s reaction in this regard is that the gratuity scheme was abolished with effect from January 1st, 2015 which means that the Claimant would only be entitled to be paid gratuity for five years i.e. from May 2009 to May 2014, thus from June 2014 to January 2015 is less than a year and that the agreement between the parties does not provide for prorated gratuity. The Defendant tendered Exhibit D4, an agreement between and ASSBIFI by which gratuity scheme was abolished with effect from January 1st, 2015.
Now, the Claimant is a member of ASSBIFI but he admitted under cross examination that he was not aware of the termination of gratuity scheme. This response contradicts the Claimant�s deposition at paragraph 13 of his further written deposition on oath wherein the Claimant stated that the Termination of the Gratuity Scheme Agreement actually recognised payment of gratuity for number of years spent by staff and fraction thereof and also the payment of 5% interest per annum on the gratuity which parties agreed shall be treated as deposit with the Defendant. I do not think the Claimant can feign ingnorance of the abolition of the gratuty scheme in the Defendant�s company.
Now, Exhibit D4 is the agreement between the Defendant and Association of Senior Staff of Banks Insurance and Financial Institutions (ASSBIFI), it is titled � �TERMINATION OF GRATUITY SCHEME AGREEMENT,� it is dated February 3rd 2015, it states at clause 3 thus:
3.1. Negotiated Gratuity Termination Package:
i. Saff that put in 5 years and above in the service of the Bank as at 1st day of January, 2015: shall be paid their gratuity in line with the terms of the gratuity scheme.
ii. Staff that put in 4 years and 6 months but less that 5 years in the service of the Bank as at 1st day of January 2015 : shall be 15% of gross pay per the staff grade as at 1st day of January 2015.
iii. Staff that put in less than 4 years and 6 months in the service of the Bank as at 1st day of January 2015: shall not be paid any amount.
iv.Interest charge: The amount due to the staff shall be treated as deposit at a simple interest rate of 5% per annum.
Now, ASSBIFI is the association that represents the Claimant�s interest and having entered in to an agreement with the Defendant, I hold that the Claimant is bound by the agreement reached in Exhiobit D4. I find support in Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt.958)438 where the Supreme Per MOHAMMED, J.S.C held at page 46, paras. D-G thus:
� The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This court, and indeed any other court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem. See Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt.192) 388; Union Bank of Nigeria Ltd. v. B. U. Umeh & Sons Ltd. (1996) 1 NWLR (Pt.426) 565; S.C.O.A. Nigeria Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 and Koiki v. Magnusson (1999) 8 NWLR (Pt.615) 492 at 514.”
Now, it is clear that by Exhibit D4, gratuity scheme was abolished in the Defendant�s company with effect from january 1, 2015. This being the case, it is my humble view which I find and hold that the Claimant is not entitled to the unpaid gratuity for 12 months claimed.
The Claimant also claimed for commuting in to cash the backlog of his unutilized 105 leave days as per this averments at paragraph 9 of the amended statement of facts which are in the same terms with paragraph 10 of the Claimant witness written statement on oath. The Claimant tendered the Defendant�s Employment Handbook, Exhibit CWD, which states at paragraph 5.2.1.2 , thus:
�An employee whose appointment is terminated and has leave days outstanding and accrued as at the date of termination shall have the days commuted to cash�.
Now, it is not in dispute that the Claimant had unutilized leave days at the time his appointment was terminated. The Claimant also tendered Exhibit CWL to show how the Defendant commuted in to cash the unutilized leave days of one of its staff that left its employment in July 2014.
The Defendant�s reaction in this regard is that monetization of unutilized leave days was abolished and that the Claimant�s claim in this regard is contrary to the provisions of Section 18 (2) of the Labour Act. With respect to the learned Counsel for the Defendant, I do not think the Labour Act is applicable to the Claimant�s case as there was a written contract that governed the relationship of the parties herein. It is trite that a court is duty bound to confine itself to the applicable conditions of service or any other stipulation incoraporated or deemed to have been incorporated there into in its resolution of any employer/employee dispute as same is the bedrock of any contract of service and thus opreates to the exclusion of the Labour Act. See Jowan & 77 Ors. V. Delta Steel Company (2013) 1 ACELR 18 at page 19. The arguments of the learned Counsel in this regard is accordingly hereby discountenanced and I so hold.
The Defendant in proof of this fact tendered Exhibits D2 and D3. Now, Exhibit D2 is the Defendant�s portal announcement; it is titled: �STAFF LEAVE BACKLOG;� it states thus:
Management has observed with great concern the accumulated leave days of staff of which some staff have over 200 unenjoyed leave backlog. This development invariably means that staff do not go on leave or their superv isors do not allow them to enjoy the leave. Either way, the attitude is detrimental to the health of the staff and the Bank in general. It is also a violation of the Bank�s & rsquo�s policy which stipulates that staff must enjoy their annual leave when due.
In view of the above, staff with leave backlog sho uld prepare their backlog leave schedule on how they propose to utilize all the leave days between now and october 2014. The proposed leave days should be done through the line supervisors who are to structure the leave backlog in a manner that would not disrupt the operation of the Bank. Please note that backlog leave is exclussive of the current year leave for 2014.
Supervisors are thus expected to collate for all subordinates under them and submit same to Executive Diretor Secretariat & Services via the Compemy Secretariat Outlook – companysecretariat@unitybankng.com . The leave schedule should be submitted latest by February 14, 2014.
For the avoidance of doubt, all unutilized leave back log will be forfeited by the end of year 2014. (emphasis mine)
Alaba Williams (00127) Aisha A. Abraham (00027)
Head. Human Capital Mgt. Dept ED, Secretariat & Services.
Now, Exhibit D3 is the Defendant�s internal memo dated January 26, 2015 and titled: �Stoppage of Monitization of Staff Leave Backlog�, it reads thus:
Kindly be informed that the EX CO at its meeting held on Wednesday , 14th January 2015 reitrated its position at its meeting of February, 201 4 that staff leave backlogs should not under any circumstance be commuted to cash.
The Committee therefore directed that staff should be encouraged to utilize their leave backlog and supervisors are enjoined to allow staff to go on leave as at when due .
Thank you.
Sgd.
Mohammed Shehu
Deputy Company Secretary.
What I can gather from all these is that the Defendant by Exhibit D2 acknowledged the fact that there was proliferation of unutilized leave days among its staff which could either be do to the staff refusal to enjoy or refusal by their superiors to allow staff to enjoy same. The Defendant then issued Exhibit D2 with a warning that all unutilized leave days will be forfeited at the end of year 2014. Exhibit D3 was issued to reitrate the Defendant�s stance on this issueas commuicated to its� staff in Exhibit D2. Now, from the contents of Exhibit D2 and D3 reproduced above, it I clear that the Defendant has abolished its policy of monetizing leave backlog at the cessation of employment with effect from the end of the year 2014.
The Claimants reaction in this regard is that the Defendant has no right to change the provisions of its staff handbook and that Exhibits D2 and D3 are of no effect whatsoever. The Defendant argued that it has power under the Employee handbook, Exh, CWD to vary the terms contained therein.Under cross examination, the Claimant�s witness was asked to read paragraph 7 at page 12 of Exhibit CWD, the Employee Handbook, it reads thus:
�From time to time amendments, which occur through additions, deletions redefinitions, modifications in policies, procedures, will be duly made known to you though officially recognized channels.�
CW then admitted that the Defendant has the right to amend Exhibit CWD and it also has the right to issue periodical memos to its employees but he was not aware of the Defendant�s policy that unutilized backlog of leave days would be forfeited by the end of the year 2014.
Now,the Claimant averred at paragraph 5 to 12 of the CW�s further statement on oath thus:
5.That in recognition of the right of the Claimant and other staff of the Defendant to enjoy their accumulated annual leave which they have hitherto being deprived of, the Defendant vide its memorandum of 10th February, 2014 while noting that Supervisor do not allow the Claimant and other staff to go on leave, enjoined myself and other staff to prepare their backlog leave schedule and that the Supervisor should structure the backlog leave jn a manner that would not disrupt the operations of the Defendant and submit same Executive Director Secretariat and Services.
6. That contrary to the Defendant�s Memo as stated in paragraph 4 above, I was not allowed to proceed on leave due to the instruction of the Managing Director that no staff should proceeds on leave in May 2014 and also refusal of my supervisor to approve leave for me despite my request for leave.
7. That the Defendant vide its Internal Memo dated January, 2015 recognised that my goodself and other staff have not been allowed to enjoined their earned accumulated leave by their various supervisors and accordingly enjoined supervisors to allow staff to go on leave as at when due.
8. while schedule of leave proposal were submitted by my good self and other staff of the Defendant, no approval was received from my supervisor and/or any authorised officer of the Defendant permitting me to proceed on backlog leave and all efforts to enjoy my earned leave days were frustrated by the Defendant who at all times claimed �exigencies of work�. I shall rely on the Defendant�s Memo dated l5th September, 2015.
Now, from the averments of the CW at paragraph 5 and 8 above, it is clear that the Claimant is aware of the change in the Defendant�s policy of monetizing leave backlog after cessation of employment. The Claimant�s deposition at paragraphs 6 and 8 requires further proof and the Claimant did not provide any. The Claimant did not place anything before this court to show that she has applied for the Defendant�s permission to utilize her leave backlog but was refused.
Now, Exhibit CWL is the terminal benefit of Ajibade Olayemi whose appointment was terminated in July 2014, in computing his terminal benefit, the Defendant took in to account his unutilized leave backloge and commuted same to cash. From the contents of Exhibits D2 and D3, 1do not think there is anything wrong for the Defendant paying for unutilized leave in Exhibit CWL because the staff under reference has left the Defendant�s employment before the effective date of the new policy. It follows herefore from the above that the Claimant herein cannot rely on Exhibit CWL to claim for monetization of her leave backlog because the circumstaces in which the respective appointments were terminated are not the same.
The Claimant was fully aware of Exhibits D2 and D3 and she did not utilized the leave backlog before the effective date and remained in the employment of the Defendant after the effective date, I do not think she can claim for monetization of the leave backlog at the time policy has been abolished, I find that the Claimant has thereby waived her right as such and I so hold.
Before I conclude this judgmwent, I wish to state that I have had a careful perusal of the decision of my learned brother Gwandu J. in a similar case with Suit No. NICN/LA/84/2016 filed by the learned Counsel to the Claimant after this case was reserved for adoption of final addresses but I disagree with the reasonings and conclusions arrived thereat.
In the final anlysis, I find and hold that the Claimant�s case fails and is hereby dismissed.
Judgment is entered accordingly, I make no order for cost.
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HON. JUSTICE MUSTAPHA TIJJANI
