IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 5th March 2020                                             SUIT NO. NICN/LA/553/2018

 

BETWEEN

 

MR. GODSON IKECHUKWU NKUME                            …         CLAIMANT

 

AND

 

FIRST BANK OF NIGERIA LIMITED                              …         DEFENDANT

           

JUDGMENT

 

1.         The Claimant, by his originating processes dated and filed on 30th October 2018, claimed against the Defendant for:

 

a.      A declaration that the Defendant is negligent to wit: Defendant’s non-payment of compensations due to the Claimant with respect to the permanent injuries suffered by the Claimant resulting from the gunshot wounds he sustained in the armed robbery attacks on the Defendant bank as provided in the Group Personal Accident Insurance Scheme and non-payment of moneys spent on hiring a driver for one year: Defendant’s failure and or refusal to release Claimant’s Deed of Assignment dated the 26th day of January 2010 registered at the Lands Registry in the office at Alausa, Ikeja as number 37 at page 37 in volume 2261 used as security for the Home Loan Construction [Staff] facility despite the full repayment of the loan, and Defendant’s failure and or refusal to make two months ex gratia payment and a golden wristwatch due to Claimant for 35 years long service award.

 

b.      An order of the Honourable Court directing the Defendant to pay to the Claimant the sum of N9, 678,002.98 [nine million six hundred and seventy eight thousand two naira, ninety eight kobo] being the principal and interests on moneys spent by Claimant in hiring a driver as at the 30th day of September 2018, and after judgment at an interest rate of 15% until the sum is fully liquidated.

 

c.      An order of the Honourable Court directing the Defendant to pay full compensation as covered by the Group Personal Accident Insurance Scheme to the Claimant as shall be determined by the Honourable Court for the permanent disability suffered by the Claimant from injuries sustained during the armed robbery incident in Defendant’s Idimu branch.

 

d.      An order of the Honourable Court directing the Defendant to pay the sum of N200, 000,000.00 [two hundred million naira] as damages for the Defendant’s abysmal handling of the injuries and compensation due to the Claimant resulting from the armed robbery attack on the bank on the 14th day of December 2006.

 

e.      An order of the Honourable Court directing the Defendant to return forthwith and handover to the Claimant the Deed of Assignment dated the 26th day of January 2010 registered at the Lands Registry in the office at Alausa, Ikeja as Number 37 at Page 37 in Volume 2261 used as security for the Home Loan Construction [Staff] facility same having been fully repaid, and to immediately file at the relevant Lands Registry a release of the Legal Mortgage that the Claimant has fully repaid the loan facility.

 

f.        An order of the Honourable Court directing the Defendant to pay the sum of N100, 000,000.00 (one hundred million naira) as damages for failure and or refusal to release Claimant’s Deed of Assignment dated the 26th day of January 2010 registered at the Lands Registry in the office at Alausa, Ikeja as Number 37 at Page 37 in Volume 2261 used as security for the Home Loan Construction (Staff) facility despite the full repayment of the loan.

 

g.      An order of the Honourable Court directing the Defendant to pay the sum of N245, 373.88 (two hundred and forty five thousand three hundred and seventy three naira eighty eight kobo) being two months ex gratia payment and the sum of $26, 000.00 USD (twenty-six thousand United State Dollars) being the current market value of a golden wristwatch which Claimant is entitled to for 35 years long service award.

 

h.      An order of the Honourable Court awarding the sum of N5, 000,000.00 (five million naira) as cost of the suit.

 

i.        And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

 

2.         After receipt of the originating processes, the Defendant caused its Solicitors to file its statement of defence and accompanying processes on 29th January 2019 together with an application to regularize the processes. The statement of defence and accompanying processes were deemed properly filed and served on 4th February 2019. Trial commenced on 16th May 2019 and was concluded on 31st October 2019. The Claimant adopted his statement on oath dated 31st October 2018 and additional statement on oath dated 31st May 2019 as his evidence in chief and tendered some documents which were marked as exhibits 1 to 34; and he was duly cross-examined. The Defendant’s witness, Mr. Sopulu Christopher Obi, a Business Development Officer, also adopted his statement on oath dated 24th May 2019 as his evidence in chief and tendered some documents marked as exhibits D1 to D11 and was cross-examined. In compliance with the Rules of the Court, parties exchanged final written addresses which their respective counsel subsequently adopted. The matter was thereafter set down for judgment.

 

3.         The facts of this case are largely undisputed. Parties agree that the Claimant was an employee of the Defendant, employed on 14th February 1983 as full clerk and served the Defendant for 35 years before his retirement on 14th February 2018 as Business Development Manager. While in the services of the Defendant as Head of Operations, Idimu Branch, armed robbers raided his Branch on 14th December 2006 and shot him on both legs. He was taken to a hospital, operated on and discharged on 22nd January 2007, but continued his treatment as an outpatient. He resumed work in March 2007 but was advised by the doctors not to drive for about a year to help the injuries heal faster. His Branch Manager made a report of the incident to the Chief Internal Auditor on 8th January 2007, exhibit 1. By letter dated 23rd March 2007, the Claimant applied to the Defendant for assistance to defray the salary of a driver he hired based on the medical advice at N20, 000.00 per month, exhibit 2. He sent a reminder dated 18th June 2007, exhibit 3. The Defendant approved the request by memo dated 9th July 2007 and made effective from July 2007, exhibit 5. It is the Claimant’s case that in spite of the approval, the Defendant refused, failed and or neglected to pay the driver’s salary compelling him to source for money to pay the driver’s salary for one year which money with accrued interest as at 30th September 2018 was N9, 678,002.98. The Claimant also claimed that the Defendant maintained a Group Personal Accident Insurance policy for its staff and by the contract of employment he was entitled to compensation for the injuries sustained during the armed robbery attack. He stated that while the Defendant was compensated for moneys stolen by the armed robbers, he was not compensated because the Defendant failed, refused and or neglected to process his compensation. It is also the Claimant’s case that he was granted a staff home construction loan of N8, 000,000.00 in August 2012 secured by a legal mortgage over his property at Odo-Esa Close, Harmony Estate, Ifako Gbagada, Lagos and deposit of the Deed of Assignment in respect of the property. He fully repaid the loan but the Defendant refused, failed and or neglected to release his Deed of Assignment which affected some business transactions he wanted to go into after retirement. The Claimant also stated that the Defendant has a policy for rewarding staff who worked for certain number of years with gifts items in addition to two months ex gratia payments, called long service award.  He was honoured with the long service awards upon attaining 10, 15, 20, 25 and 30 years and was entitled to a golden wristwatch, 2 months ex gratia and reparation after 35 years of meritorious service with the Defendant but was only paid reparation allowance. He put the current market value of an average golden wristwatch at US$26, 000.

 

            On its part, the Defendant denied it approved the hiring of a driver for the Claimant. It is the Defendant’s case that the Claimant did not make any claims with respect to clause 15.10 of its employee handbook directly to the insurance company as expected under the insurance policy, which  provision applies only to existing employees and not to the Claimant who has retired; and having ceased to be its employee the Claimant is not entitled to claim under the Group Personal Accident insurance cover. But even where the Claimant applied while in employment, he would only be entitled to compensation for temporary total disablement. It stated that it did not refuse, fail and/or neglect to return Claimant’s title document which was used as security for a loan; and insisted that the Claimant was only entitled upon retirement to reparation allowance calculated at 30% of his annual basic salary which has been paid. The Defendant stated that as at the time the Claimant retired, its policy for long service award gifts had been reviewed from gift items to vouchers.

 

4.         In the final written address filed on behalf of the Defendant, Chief Adewale Adeniji, formulated two issues for determination, to wit:

 

a.         Whether this Honourable Court has jurisdiction to hear Claimant’s claims A(i), A(ii), B, C, D, E and F, having regard to the Limitation Law of Lagos State, the National Industrial Court Act, 2006, and the 1999 Constitution, as amended?

 

b.         Whether the Claimant has proved his claims in this action, such that he is entitled to them?

 

Canvassing issue one, Chief Adeniji submitted that this Court has no jurisdiction to try claims [a][i], [ii], [b], [c], [d], [e] and [f]. He argued that claims [a][i], [b], [c] and [d] are caught by Sections 8[1][a] and 9[1] of the Limitation Law of Lagos State and thus statute barred; while claims [a][ii], [e] and [f] not being an employment issue, this Court has no jurisdiction to try it. He posited that in determining whether or not a cause of action is statute barred, the Court would look at the originating process and referred to Egbe v. Adefarasin [1987] 1 NWLR [pt. 74] 1 and Aboyeji v. Leteju [2012] 3 NWLR [pt. 1288] 434 at 451.

 

Learned counsel explained that the alleged wrongdoing arose in 2006 and July 2007, while the action was commenced on 30th October 2018, more than 12 years after accrual of cause of action for the gunshot injuries; and 11 years after accrual of cause of action for hiring of the driver. He relied on Sections 8[1][a] and 9[2] of the Limitation law which stipulates a period of 6 years for actions founded on simple contract and 3 years for damages for negligence where personal injuries are involved. He noted that the issue of lack of jurisdiction was raised in the amended statement of defence and Defendant’s witness’ deposition and the witness was cross-examined on it. However, he argued that the Claimant refused to join issues with the Defendant on this fact which failure amounts to an admission of the pleading, and acceptance of the testimony of the defence witness. The cases of Alhaji Lawal Darma v. Alhaji Maiwada Batagarawa [2002] 17 NWLR [pt. 796] 23; Joseph Achimugu v. Minister, F.C.T. & Anor. [1989] 11 NWLR [pt. 574] 467 were cited in support.

 

Counsel submitted that when the time to bring an action has lapsed, the action becomes statute-barred denying the Court of jurisdiction to entertain the claims. Reliance was placed on the cases of Egbe v. Adefarasin [supra] and Kolawole Ind. Co. Ltd. v. A.G. Federation [2012] 14 NWLR [pt. 1320] 221 at 243. He argued that once time begins to run on a cause of action, it remains unbroken and unaffected by any circumstance without a fresh acknowledgment. On this basis, he contended that claims [a][i], [b], [c] and [d] must be dismissed for want of competence in the Court to adjudicate on it.

 

Chief Adeniji contended that claims [a][ii], [e] and [f] have nothing to do with labour, employment and conditions of work et cetera, or any matter incidental to areas of the Court’s exclusive jurisdiction. He referred to Section 7, National Industrial Court Act, 2006 and Section 254[c] [sic] of the Constitution of the Federal Republic of Nigeria, 1999 [as amended]. He noted that claims [e] and [f] relate to release or non-release of Claimant’s title document, sequel to repayment of the staff loan granted to him by the Defendant and does not qualify as a matter which this Court can adjudicate upon. He submitted that these claims are not employment related as it is not tied to the status of the Claimant as a retired staff of the Defendant; but one of borrower and lender. On that premise, he urged the Court to hold that it has no jurisdiction to entertain claims [a][i], [ii], [b], [c], [d], [e] and [f] and consequently strike it out.

 

5.         On issue two, Chief Adeniji argued that where the Court agrees with  Defendant’s issue 1, the only claims left would be claims [g] and [h], which are for the sum of N245, 373.88 two months ex gratia payment and US$26, 000 being the market value of the golden wristwatch which the Claimant claims entitled to as part of his 35 years long service award; and cost of this suit put at N5 million. He conceded that the facts in support of claims [a][iii] and [g] are not in ‘major dispute’, but explained that what is disputed is whether the Claimant is entitled to 2 months ex-gratia and a golden wristwatch for 35 years long service award as claimed. Counsel referred to paragraphs 46 to 52 and 58[d] of Claimant’s statement on oath dated 30th October 2018 and Exhibits 21 to 25 as facts relied on to prove these claims; but noted that the Defendant joined issues with the Claimant on these claims. Reliance was placed on paragraphs 11[a] to [d] of the amended statement of defence, Exhibit D5 and paragraphs 10 and 11 of the reply to the amended statement of defence. He argued that even from Exhibit 21 the Court can safely conclude that the Claimant has not proved his entitlement to 2 months ex gratia payment and golden wristwatch as reward for 35 years of service to the Defendant noting that Exhibit 21 is a bundle of documents that show what awardees of 15, 20, 25 and 30 years of long service award would get. But, contrary to Sections 131 and 133 of the Evidence Act, 2011, the Claimant failed to discharge the evidential burden of proof placed on him when he failed to produce documentary evidence to substantiate his claim for 2 months ex gratia payment or indeed any golden wristwatch. This, he argued, is germane because the Defendant joined issues with the Claimant that he is not entitled to this claim and having so joined issues, the burden shifted to the Claimant to prove his claim which burden he failed to discharge. Napoleon Orianzi v. A.G., Rivers & 3Ors. [2017] 6 NWLR [pt. 1561] 224 was cited in support.

 

Learned counsel also submitted that Exhibits 22 and D5 are the same except that Exhibit D5 presents a true account of what transpired between the parties on payment of 35 years long service award; noting that the Claimant was informed that the Defendant’s policy has always been to pay only reparation allowance to retiring staff upon attainment of 35 years in service, which finds support in clause 8.12.2 of Exhibit 34. He pointed out that this provision tallies with the evidence of the defence witness in paragraphs 18, 19 and 20 of his statement on oath and makes the Defendant’s narrative more believable. The Court was urged to presume, in accordance with Section 167[d] of the Evidence Act, 2011, that the so-called 35 years award which if the Claimant had could have been produced but was not produced, and would, if produced, be unfavourable to him; and hold that the Claimant has not proved his entitlement to this claim.

 

6.         On cost, learned counsel submitted that where the claims fail, no cost can be awarded against the Defendant. He explained that costs are awarded to indemnify the successful party, not as punishment to the party who pays it or bonus to the party who receives it and relied on A.G. Kwara & Anor. v. Chief Joshua Alao & Anor. [2000] 9 NWLR [pt. 671] 84. He argued that even where the Claimant succeeds, in awarding cost the Court will look at the cost incurred in prosecuting the action and award cost judiciously and judicially. Reliance was placed on Theobros Auto Link Limited v. B.I.A.E. Co Limited [2013] 2 NWLR [pt. 1338) 337 Counsel noted that save for the cost of filing Court processes which are part of the Court’s records, the Claimant has not proved this claim; and argued that where the Claimant succeeds, the Court should, in award of cost, take into account the cost incurred in the prosecution of this matter only.

 

7.         In the alternative to issue one, learned counsel argued that the Defendant is neither liable in negligence nor breach of contract in that the Claimant made no claims in line with clause 15.10 of Exhibit 34 directly to the insurance company as expected under the policy. He pointed out that there is nothing in this clause which makes it the Defendant’s responsibility to pursue Claimant’s insurance claims and by the literal rule of interpretation, this responsibility cannot be imputed to it. As a result, the Defendant does not owe the Claimant any duty of care in respect of the insurance policy. He noted that the Claimant who brought a claim on Group Accident policy failed to produce the Group Personal Insurance Policy or evidence of payment of premium and did not subpoena the Defendant to produce it; but wants the Court to make an order on a policy, details of which are not before it. He submitted that the settled position of law is that policy of insurance grounds an insurance claim and the onus is on the person making the claim to prove the terms thereof. He cited the cases of Palm Beach Insurance Co. Ltd. v. Max Bruhns [1997] 9 NWLR [pt. 519] 80 and U.N.I.C. Limited v. U.C.I.C. Ltd. [1999] 3 NWLR [pt. 593] 17. He noted that contrary to Claimant’s paragraph 30, by Exhibit 7 it is clear that he waited for 7 years to realise that he has not received compensation for his injuries and submitted that equity does not aid the indolent. Therefore, he argued that if anyone was negligent, it is the Claimant. The Court was urged to hold that claims [a][i], [c] and [d] must fail for lack of proof.

 

8.         On payment of the driver’s salary in claims [a][ii] and [b], the Court was urged not to attach any evidential value whatsoever to Exhibit 33 which is a computation by the Claimant in that it has no heading and was not signed. Accordingly, he argued that the Claimant has not discharged the burden of proof of the amount claimed in relief [b]. The case of Habibu Ibrahim v. Idris Garki & Anor. [2017] 9 NWLR [pt. 1571] 377 at 390 was cited in support. It was further argued that should the Court hold otherwise, from paragraph 21 of Claimant’s statement on oath of 30th October 2018 what he requested for was a driver to be paid a monthly salary of N20, 000.00 for one year in accordance with the doctor’s recommendation that he should not drive with the legs for that period which evidence is supported by Exhibit 2; and in Exhibit 3, lines 16 – 17, he pleaded that his request should be given consideration since he had been paying the driver from his salary. Learned counsel therefore contended that assuming the Defendant indeed approved the payment for a driver [which he denied], the Claimant has still not proved his claims in that he did not show evidence of the payment made to the driver and the interest calculation, particularly when the Defendant joined issues with him in paragraph 8 of the amended statement of defence. He submitted that it is trite that interest must be pleaded and proved and relied on the case of Alhaja Sherifat Balogun & Anor. v. E.O.C.B. [Nigeria] Limited [2007] 5 NWLR [pt. 1028] 584 at 603.      He argued further that assuming Exhibit 24 qualifies as a demand for a liquidated sum, it did not specifically call for payment of the sum of N9, 678,002.98 and, in any event, a Solicitor’s demand letter is not proof of liquidated sums. The case of Oyewunmi Oyetayo v. Zenith Bank [2012] 29 N.I.L.R. [pt. 84] 370 at 425-426 was cited in support. The Court was invited to examine Exhibit D11 lines 16 – 19 and decide whether the Claimant, having foresworn the help of the Defendant on this issue in 2007 is now justified to sue the Defendant on the self-same issue eleven years later.

 

9.         On claim [d] for N200 million damages, counsel reasoned that from the way the claim is couched, there are two claims in one, the first being the Defendant’s alleged abysmal handling of Claimant’s injuries from the gunshot wound; and the compensation due to him on the injuries. On the former, he argued that Exhibits 2, 3 and D2 paint a totally different picture. He referred to paragraph 3 of Exhibit 2 and lines 18 – 20 of exhibit 3 and submitted that despite Claimant’s oral testimony to the contrary, the documentary evidence before the Court show beyond any doubt that the Claimant never complained of Defendant’s handling of his injury and treatment until he contrived of this action. He posited that the best evidence is documentary evidence and oral testimony cannot alter documentary evidence. He relied on Mrs. Abiola Osibowale v. Carribean Finance Ltd & Ors. [2011] LPELR – 4548 [CA]. Drawing from paragraph 12[a] of the amended statement of defence, paragraph 21 of the defence witness’ statement on oath and exhibit D6, counsel contended that the Claimant never made a claim for compensation from the Defendant; noting that Claimant joined issues with Defendant on paragraph 12[a] in paragraph 18 of the reply to amended statement of defence and averred that the Defendant is liable to him in contract and in tort but his testimony seeks to contradict Exhibit D6 and thus must be rejected. On the latter, he submitted that this amounts to double compensation for one injury. In one breath, Claimant is asking [in claim C] for an order directing the Defendant to pay him full compensation under the Group Personal Accident Insurance Scheme, and in another breath, he is asking for damages for the same injury. He argued that this Court cannot make two separate awards for the same relief, as this amounts to double compensation and referred to U.T.C. [Nig.] Plc & 2Ors. v. Daniel Philips [2012] 6 NWLR [pt. 1296] 136.

 

10.      With respect to claims [a][ii], [e] and [f], he pointed out that the Claimant alleged negligence and breach of contract against the Defendant; and referring to paragraphs 59[c] and 60[d] of the statement of facts argued that the Claimant did not prove that the Defendant denied record of the loan or his title documents, rather available evidence shows that Defendant acknowledged Claimant’s request for release of his title document within a few months of receipt. He submitted that this evidence, balanced against the testimony of the Claimant, shows that the Defendant placed unchallenged documentary evidence of its attempts to deliver the title document to the Claimant and its consequent failure, and cannot on a balance of probabilities, be held to be negligent or in breach of contract. The Court was invited to consider that although the Claimant by his evidence repaid the loan on 19th August 2016, he waited for another sixteen months before demanding for release of his title document; which suggests that there was no compelling need for early release of the title document making his testimony in paragraph 44 and Exhibit 20 that the delay in releasing his title document greatly affected some transactions he needed to conclude less probable. The Court was, thus, urged to dismiss the suit in its entirety.

 

11.      On his part, learned counsel for the Claimant, in the final written address filed on behalf of the Claimant on 3rd December 2019, submitted 8 issues for determination, to wit:

 

a.      Whether the Defendant can rely on documents contained in the abandoned statement of defence filed on the 29th day of January 2019 having failed to frontload and or file same in the amended statement of defence filed on the 24th day of May 2019?

 

b.      Whether the Claimant is entitled to payment of compensation under the Defendant’s Group Personal Accident Insurance Scheme on the injuries he sustained on both legs from the robbery attack on Defendant’s bank in the course of his duties? Or, whether the Defendant breached its contract with the Claimant by its failure to cause the insurers to pay compensation to Claimant on the injuries suffered in the course of duty?

 

c.      Whether the Claimant is entitled to refund of moneys spent on the driver hired by him for a period of one year as advised by the doctors and approved by the Defendant?

 

d.      Whether the Defendant’s refusal to release and return Claimant’s title documents in its possession used as security for the Home Loan Construction (Staff) Facility despite full payment of the loan amounts to breach of contract and therefore entitles the Claimant to award of damages against the Defendant?

 

e.      Whether the Claimant is entitled to a golden wristwatch and two months ex gratia payment for 35 years Long Service Award having worked for the maximum period of 35 years in Defendant bank?

 

f.        Whether the Defendant was negligent in its relationships with the Claimant to wit: non-payment of insurance compensation on injuries suffered; non-payment of N20, 000 monthly salaries for the hired driver approved by the Executive Director Lagos and West; denial and or refusal to return Claimant’s title documents used as security for loan despite full repayment, and refusal to pay 35 years long service award?

 

g.      Whether this Honourable Court has jurisdiction to entertain Claimant’s claims as presently constituted?

 

h.      Whether the Claimant has proved his claims in the suit to entitle him to the judgment of this Honourable Court?

 

12.      Learned counsel answered issue one in the negative. He noted that the Defendant amended its statement of defence on 24th May 2019 and filed the defence processes without annexing copies of the documents which were attached to the original statement of defence. He submitted that it is basic law that where a document or process is altered, it no longer enjoys any legal life and, in the instant case, the Defendant cannot rely on documents contained in the original statement of defence. The cases of Uba v. Ukachukwu & Anor [2013] LPELR-22045 [CA] and Enigbokan v. AIICO [Nig.] Ltd [1994] LPELR-1144 [SC] were cited in support. Counsel referred to Order 15 Rule 1 of the Rules of this Court and argued that the Rule makes it mandatory for a defendant to frontload documents it would rely on in defence of the case, which was flouted by the Defendant; and rules of Court are meant to be obeyed. He referred to Agip [Nig] Ltd v. Agip Petroli International & Ors. [2010] 5 NWLR [pt. 1187] 348 at 363 – 364. He argued that the documents tendered by the Defendant in evidence go to no issue and should be discountenanced by the Court.

 

13.      Learned counsel argued issues 2 and 3 together and returned an affirmative answer. He explained that it is not in dispute that the Claimant retired from the Defendant after 35 years of service and was shot on both legs in the course of duty by armed robbers. He explained that the Defendant has a Group Personal Accident Insurance Policy for its staff as contained in the contract of employment and staff handbook. He posed three questions, namely: whether the Claimant is entitled to payment of insurance compensation under the Defendant’s Group Personal Accident Insurance Scheme for the injuries he sustained on both legs from the robbery attack? Two, whose duty is it to trigger the insurance clause in article 15.10 of the Employee Handbook? and thirdly, whether the Defendant caused the insurance to be paid to the Claimant? In answering these questions, he referred to clause 15.10 of Exhibit 34, Exhibits 1 and 6 and pointed out that having not received compensation for his injuries, the Claimant by Exhibits 7, 8 and 10 demanded for it. He contended that it is the duty of the Defendant to make the insurance claim on behalf of the Claimant and relied on the email correspondence of 8th December 2014, 14th December 2014, 11th February 2015 and 10th March 2015. It was also argued that by the pleadings it is clear that the Claimant is entitled to payment of compensation under the Defendant’s Group Personal Accident Insurance Scheme and by clause 15.10 of the Employee Handbook, it is the Defendant’s duty to process and make the insurance company pay the compensation which informed the email exchange; and the Defendant failed and or neglected to cause the compensation to be paid to the Claimant. He noted that the insurance cover is a group insurance cover and as such it is only the employer that can cause compensation to be made to the affected staff. He referred to Ighosewe v. Delta Steel Company Ltd [2007] LPELR- 8577 [CA], Registered Trustees of Winners Chapel v. Ikenna [2018] LPELR-45767[CA] and Anike v. S.P.D.C. [Nig.] Ltd [2011] 7 NWLR [pt. 1246] 227 and contended that the Claimant’s injuries in the course of duty automatically activated clause 15.10 of exhibit 34.

 

14.      It was further argued that Claimant upon resumption of duty after his discharge from hospital applied to the Defendant via Exhibit 2 for the salary of a driver he hired as advised by his doctor in the sum of N20, 000.00 per month. The request was approved by the Defendant as documented in Exhibits 3, 4, and 5 but the Defendant failed and or neglected to pay the approved sum, thus compelling the Claimant to source for funds to pay it.      Counsel posited that whenever the question arises as to the categories of persons whose actions will be attributed to the company the directors, managers, general managers and managing director represent the directing mind and will of the company and control what it does. He referred to the case of A.G. Leventis & Co. [Nig.] Plc v. Modu [2018] LPELR-45375[CA]. He submitted that the Defendant’s Executive Director, Lagos and West, approved payment of N20, 000.00 monthly for the driver hired by the Claimant and failure to make the payment amounted to a breach of its obligation to the Claimant. Relying on Adamu v. Ashaka Cement Co. Plc [2015] LPELR-25610 [CA], he submitted that in law acts of Directors and Managers are binding on the company and the Defendant is bound to pay the sum of N20, 000.00 being the monthly salary of the Claimant’s driver and urged the Court to so hold.

 

15.      Adverting to issue 4 Counsel argued that by repaying the loan the Claimant discharged his obligations under the contract and the Defendant became obligated to return the security documents to the Claimant. The case of Anaeze v. Anyaso [1993] LPELR-480[SC] 27-28 was cited in support. It was also argued that it is an implied term of the contract that upon full repayment of the loan, the Defendant shall return all documents used as security for the loan and discharge Claimant from all liabilities; but the Defendant failed to return the documents in spite of Claimant’s demands. He referred to Exhibits 16, 17, 20, 24, 25, 26 and 27 and noted that in exhibit 27 the Defendant denied knowledge of the staff loan, Claimant’s title document used as collateral, his 35 years long service award and approval of a driver for him. He contended that the Defendant’s scandalous denial of existence of the facility and title document amounts to proof of its breach of contract and negligence on the Home Construction [Staff] Facility. Counsel further argued that Defendant’s failure and total neglect to return Claimant’s title document in spite of full repayment of the loan, amounts to a breach of contract and entitles Claimant to award of damages. He referred to Are v. Owoeye [2014] LPELR-41096 [CA], Addison United [Nig] Ltd v. Lion of Africa Insurance Ltd [2010] LPELR-3596[CA] and Afolabi v. Gov. of Oyo State & Ors. [2016] LPELR-41945 [CA] 16-17. He submitted that it is rudimentary law that the purpose of award of damages for breach of contract is to restore the party whose right has been violated to the same position, so far as money can do, as if his right had not been breached. The case of Access Bank Plc v. Sijuwade [2016] LPELR-40188[CA] 45-46 was cited in support. The Court was urged to resolve issue 4 in Claimant’s favour.

 

16.      On the fifth issue, which is “whether the Claimant is entitled to a golden wristwatch and two months ex gratia payment for 35 years long service award having worked for the maximum period of 35 years in Defendant bank”; learned counsel argued that from Exhibit 15 [21] it is not in dispute that the Defendant has a policy of rewarding staff who have put in certain number of years in its service. He explained that though the long service award is not mentioned in the Staff Handbook, it is a policy that the Defendant has maintained over the years till date and the Claimant received long service awards up till the 30th year but was not paid for the 35th year which entitles him to a golden wristwatch, two months ex gratia payment and reparation. He noted that the Claimant only received reparation allowance and by internal mails dated 9th March 2018, 13th March 2018 and 14th March 2018 demanded for payment of his entitlement. Counsel argued that since the Defendant maintained the long service award policy for these years, and there being no reason given to deny the Claimant his 35th year long service award, then the Defendant is liable to give the Claimant two months ex gratia payment and a golden wristwatch. He submitted that the employer and employee relationship is contractual governed by terms and conditions of the contract and the Defendant having entered into a contract with the Claimant is liable to perform the contract entered into with the Claimant. He contended that the long service award was instituted by the Defendant to reward loyalty and this policy forms part of the contract between the Defendant and Claimant. Claimant having performed his part of the contract and worked for 35 years deserves a corresponding performance by the Defendant. He relied on Oak Pensions Ltd & Ors. v. Olayinka [2017] LPELR-43207 [CA]. Counsel referred to paragraph 11[a] of the amended statement of defence and noted that the Defendant deliberately excluded the 30th and 35th years long service awards and did not prove its assertion that the policy has been reviewed. He submitted that the law is that he who asserts must prove and referred to Section 131 Evidence Act, 2011 and Akinbade & Anor. v. Babatunde & Ors. [2017] LPELR-43463[SC]. Counsel also argued that the Defendant stated the policy review was carried out after the Claimant’s exit, which means the new policy does not apply to him. It was further argued that the Claimant did not produce any document evidencing the 35 years long service award because the Defendant failed to issue it to him. The Court was urged to resolve issue 5 in Claimant’s favour.

 

17.      Canvassing issue 6, learned counsel contended that in spite of Defendant’s approval of N20, 000.00 monthly salary for Claimant’s driver, it refused, failed and neglected to pay the driver’s salary. Also, the Claimant was entitled to compensation for his injuries under the Defendant’s Group Personal Accident Insurance Scheme but the Defendant neglected to secure payment of the compensation at the time it was processing its claims for money lost in the attack. In addition, upon repayment of the staff home construction loan, the Claimant demanded for his title document but the Defendant denied existence of the loan and the Claimant’s title document. Furthermore, Counsel explained that the Defendant refused to give the Claimant his 35 years long service award consisting of two months ex gratia and a golden wristwatch. Relying on Exhibit 27 he argued that the facts speak for itself that the Defendant was negligent in its dealings with the Claimant. He cited a number of cases in support of his argument that the Defendant was negligent including the cases of Eko Hotels Ltd. & Ors v. Osuji [2015] LPELR–40915[CA], Okwejiminor v. Gbakeji & Anor. [2008] LPELR-2537[SC] and Odulate v. First Bank of Nigeria Ltd [2019] LPELR-47353[CA] 21-24. Counsel itemised what the Claimant must plead and proof to succeed in negligence, namely: duty of care, breach of the duty of care, and damage resulting from the breach.  He noted that the Claimant satisfied these requirements in his pleadings and evidence and contended that it was the Defendant’s duty to apply for and ensure payment of compensation to the Claimant by the insurers as stipulated in Exhibit 34, which duty the Defendant failed to discharge resulting in non-payment of compensation to the Claimant. Counsel further argued that having approved N20, 000.00 for the Claimant’s driver, the Defendant was duty bound to pay it. He submitted that a person is negligent if he omits or fails to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable and prudent man would not do and relied on RCC [Nig] Ltd v. Aghaulor [2018] LPELR-46135[CA] 10-11. The Court was urged to resolve issue 6 in favour of the Claimant.

 

18.      Issues 7 and 8 were argued together. Counsel explained that there are no claims labelled “A[i]” and “A[ii]” in the statement of facts. He submitted that this Court has jurisdiction to entertain the Claimant’s claims as it arose from his contract of employment and referred to the case of Ngun v. Mobil Producing Nig. Unltd [2013] LPELR-20197[CA] 35. He contended that the Defendant’s argument that this Court lacks jurisdiction to entertain some of the claims because the suit was not instituted within three and six years is assailable. He submitted that Sections 8[1][a] and 9[1] Limitation Law of Lagos State 2015 and all authorities cited by the Defendant in support are not applicable to this case. He noted that if there was any delay in making the insurance claim, the delay was that of the Defendant which had the responsibility to do so. He conceded that paragraph 5.10 of the Defendant’s final written address and the case of Kolawole Ind. Co. Ltd v. A.G. Federation [2012] 14 NWLR [pt. 1320] 221 at 243 cited therein represent the law. He also agreed with the defence counsel that once time begins to run on a cause of action it remains unbroken and unaffected by any circumstance without a fresh acknowledgment; but argued that, assuming without conceding, the claims for compensation for Claimant’s injuries and reimbursement of the driver’s salary are statute barred, by Section 37 of the Limitation Law of Lagos State 2015, the internal mails and Exhibits cited in paragraphs 4.2.4 and 4.2.5 of Claimant’s final written address being communications between the Claimant, the Defendant and FBN Insurance Brokers Ltd on payment of compensation for the injuries amount to acknowledgment of the claims for compensation and driver’s salary and therefore resurrects the claims. He maintained that the Defendant indeed acknowledged it was yet to process the request for payment of insurance compensation under the Group Personal Accident Insurance policy which was why it requested for further documentation. 

 

19.      In response to Defendant’s argument that this Court lacks jurisdiction to hear the claim on the home construction [staff] facility, counsel contended that the facility was spiced with the employer/employee relationship which existed between the parties and performance was tied to the employment. Therefore, he submitted that this Court is the appropriate forum for claims arising out of the employer/employee relationship.  

 

On the Defendant’s submission that the Claimant did not produce evidence of entitlement to 2 months ex gratia payment and a golden wristwatch as part of his 35 years long service award, he referred to Exhibit 21 and argued that 2 months ex gratia payment applies to Defendant’s long service awards in addition to other gifts attached to a particular milestone service period. He contended that it is a policy of the Defendant to pay 2 months ex gratia for long service awards and noted that the Claimant could not produce any document to substantiate his claim for 35 years long service award except for reparation allowance which is one of the entitlements for 35 years long service award because it was not given to him by the Defendant. Counsel referred to paragraph 11[a] of the amended statement of defence and argued that all the years stated by the Defendant retained the 2 months ex gratia payments and the new policy [if any] for long service award came into effect after the Claimant had retired and the Defendant did not plead any document in proof and he who asserts must prove. He relied on Sections 131 and 133 of the Evidence Act 2011.

 

It was submitted that even if Defendant’s long service award policy changed after Claimant’s retirement, it does not affect him as it cannot have a retrospective effect on the Claimant. Reliance was placed on the case of University of Jos & Anor. v. Aro [2019] LPELR-46926[CA]. Counsel also submitted that Defendant’s argument in paragraph 5.31 that the Claimant did not produce evidence of payment of premium on the Group Personal Insurance Policy to be entitled to compensation is infantile. He argued that as the name shows, the Defendant pays the insurance premium for the staff and did not deny its duty to do so since it is part of the employment contract. He referred to Exhibit 5 and argued that it is on record that Defendant through its Executive Director, Lagos and West, approved the sum of N20, 000.00 as monthly salary for the Claimant’s driver and, accordingly, the Defendant is bound. The case of Trenco [Nig] Ltd v. African Real Estate & Investment Co. Ltd & Anor. [1978] LPELR-3264 [SC] 18 was cited in support. The Court was urged to resolve issues 7 and 8 in favour of the Claimant and enter judgment as claimed.

 

20.      By way of reply on points of law, counsel for the Defendant argued that the attack on Defendant’s documents tendered in evidence is misplaced because the Court is empowered to take judicial notice of documents in its case file, Gbaniyi Osafile & Anor. v. Paul Odi & Anor. [1990] 5 SC [pt.II] 1 at 27 was referred to; and the documents listed in Order 15 rule 1[1] of the Rules of the Court stand alone. He noted that the documents were pleaded in the amended statement of defence and counsel did not object to its admissibility at the trial. On Claimant’s arguments in paragraphs 4.2.0 to 4.2.9 of his final written address, Counsel submitted that the cases of Ogundipe v. Minister of FCT, Ighosewe v. Delta Steel Company Limited, Registered Trustees of Winners Chapel v. Ikenna and Anike v. SPDC [Nig.] Limited do not apply to the arguments they were cited to support. In response to paragraph 4.4.4 of Claimant’s final written address, he contended that the submission is a misconception of the law on shifting of evidential burden; as failure to discharge the initial burden means no burden shifted to the Defendant which need not place any proof before the Court. U.T.B. [Nigeria] v. Fidelia Ozoemena [2007] 3 NWLR [pt.1022] 448 was relied on. Finally, on Claimant’s submission that his claims are not statute barred, counsel submitted that continuance of injury exception under the limitation law means continuance of the act which caused the injury and not the injury itself. Okafor v. A.G. Anambra State [2001] FWLR [pt.58] 1127 at 1146 was cited in support. He noted that parties did not join issues on paragraph 4 of the amended statement of defence. He urged the Court to look at the originating process and determine whether the injury is a continuing one and submitted, on the authority of Udoh Trading Co. Ltd. v. Abere [1996] 8 NWLR [pt.467] 479 at 492, that courts should not assist any person who sleeps on his rights.

           

21.       I have carefully read the processes filed by the parties and considered the submissions of their counsel and, in my respectful view, the issues for determination submitted by the Defendant are apposite for a just determination of this suit and I hereby adopt it with modification, to wit:

 

a.      Whether this Court has jurisdiction to entertain reliefs [a], [b], [c], [d], [e] and [f]?

 

b.      Whether the Claimant is entitled to judgment on his claims?

 

As rightly argued by learned counsel for the parties, the law is well established that he who asserts must prove. See section 131[1] of the Evidence Act, 2011 and the case of Lawal v. All Progressives Congress & Ors. [2018] 7 SC [pt.VI] 183 at 213. Thus, the Claimant who initiated this suit on a set of facts which he claims entitles him to judicial relief has the burden of: first, proving those facts and secondly, establishing that those facts entitle him to the reliefs he seeks. See Nduul v. Wayo & Ors. [2018] 7 SC [pt.111] 164 at 212. This is what is often referred to as a prima facie case. It is only when the Claimant makes out a prima facie case that the burden shifts to the Defendant to adduce counter evidence to sustain its defence. See Nduul v. Wayo & Ors. [supra]. Where the Claimant fails to make out a prima facie case there will be nothing for the Defendant to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. Iserhienrhien [2001] 6 NWLR [pt.710] 660 at 674.

 

In addition, where a Claimant seeks a declaratory relief, as in this case, he has the legal burden to prove his entitlement to the declaration. See Ilori & Ors. v. Ishola & Anor. [2018] 15 NWLR [pt.1641] 77 at 94. Evidence which will support a legal right must be credible, cogent and convincing.  See Ibrahim v. Garki & Anor. [supra] at page 390, cited by learned counsel for the Defendant. It is equally the law that in an employment dispute, it is the conditions of service that must be referred to in resolution of the dispute. See Frank Jowan & 77 Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 24 and Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108. In the latter case, Tsammani, J.C.A., observed that:

 

“… in an employer/employee dispute, it is the applicable conditions of service or any other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties.”

 

Also, it is the law that where there are series of documents incorporating the terms and conditions of an employment, the Court should not look outside those terms in deciding the rights and obligations of the parties. See Frank Jowan & 77 Ors. v. Delta Steel Company Ltd. [supra] at page 25.

 

22.      Before considering the issues for determination formulated above, let me deal with the issue raised by the Claimant in his final written address, whether the Defendant can rely on documents contained in the abandoned statement of defence. Learned counsel for the Claimant argued that where a process is altered, it no longer enjoys any legal life and in the instant case, the Defendant cannot rely on documents contained in the original statement of defence. The case of Uba v. Ukachukwu & Anor. [supra], amongst others, was cited in support. Counsel also referred to Order 15 Rule 1 of the Rules of this Court and explained that the Rule makes it mandatory for a defendant to frontload documents it would rely on in defence of its case. The Court was thus urged to discountenance Defendant’s documents which were not attached to the amended statement of defence.

 

            In response, counsel for the Defendant argued that the Court is empowered to take judicial notice of documents in its case file, and that the documents listed in Order 15 rule 1[1] of the Rules of the Court stand alone. He noted that the documents were pleaded in the amended statement of defence and counsel did not object to its admissibility at the trial.

 

23.      It is good law that once pleadings are amended what stood before the amendment is no longer material before the Court and does not define the issues to be tried. See Uba v. Ukachukwu & Anor. [supra] at page 32. It is equally correct that rules of Court are meant to be obeyed, but a slavish adherence to rules of Court will not meet the ends of justice. See Alhaji Baba M. Saleh v. Alhaji Shetima Monguno & Ors. [2006] LPELR-2992[SC] 26. It must be noted that what governs admissibility of evidence at the trial is the Evidence Act and not the Rules of Court; and while a Court can take judicial notice of its records and proceedings, see Gbaniyi Osafile & Anor. v. Paul Odi & Anor. [1990] LPELR-2783[SC] 43 and Mr. Micheal Adebayo Afolayan v. Mike Adimoha Esq. [2020] 1 NWLR [pt.1706] 558 at 583-584, in some cases a proper foundation must be laid for it to do so. In Gbaniyi Osafile & Anor. v. Paul Odi & Anor. [supra] at page 34, Nnaemeka-Agu, J.S.C., had this to say:

 

“Our law preserves the distinction between those facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection [3] of Section 73 of the Evidence Act, he may, when called upon to take judicial notice of a fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so. When the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take judicial notice of the fact. The only difference is that under section 73[2], even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference. It follows from what I have been saying that every matter entitled to be judicially noticed has its appropriate and necessary foundation without which it cannot be judicially noticed.” [underlining mine]

 

24.       It is clear from the dictum quoted above that while a Court may take judicial notice of its records, it does not include documents which a party to the proceeding must lay proper foundation and tender in proof of its case. If it were otherwise, the Court will be conducting the case of the parties. This conclusion finds support in the decision of the Court of Appeal in Amadi Ali v. The State [2019] 14 NWLR [pt.1692] 314 at 357-358, where Ogunwumiju, J.C.A., referred to two decisions of the Supreme Court on the subject matter and remarked thus:

 

“In both instances these documents the Supreme Court was urged to look at and which they in fact considered were documents already admitted in evidence or which were already part of affidavit evidence before the trial court. The court in our adversarial system of jurisprudence whether in civil or criminal matters cannot go into a voyage of discovery in respect of documents in the court’s file which have not been specifically made part of the case of a party in the proceedings.”

 

For this reason, the Defendant’s documents attached to its statement of defence do not qualify to be judicially noticed.

 

25.       Nonetheless, the documents were duly pleaded in the amended statement of defence and there is attached to the amended statement of defence the Defendant’s list of documents. What was omitted are copies of the documents which, in my considered opinion, should not render the documents inadmissible. The essence of the frontloading procedure is to enable the parties know the case they are to meet at the trial and the evidence by which it is to be proved. It is intended to prevent surprise and expedite the hearing of cases. See Adegbuyi Esq. & Anor. v. Mustapha & Ors. [2010] LPELR-3600[CA] 30. Undoubtedly, the Claimant was not taken by surprise which, perhaps, explains why his counsel did not object to admission of the documents in evidence. Having not objected to the admissibility of the documents at the trial, the Claimant cannot do so now. It is trite law that once a piece of documentary evidence is legally admissible and its admission was not opposed by the other party who had the opportunity of doing so, such party will no longer be allowed to object. See Elder Dr. Friday Sani v. Kogi State House of Assembly & Ors. [2019] 1 SC [pt.IV] 153 at 183.

 

Furthermore, the law is firmly settled that relevancy governs admissibility and a documentary evidence need not be specifically pleaded in order to be admissible in evidence, so long as facts relating to such document are expressly pleaded. See Elder Dr. Friday Sani v. Kogi State House of Assembly & Ors. [supra] at page 187.

 

Based on the above, Claimant’s issue one is answered in the affirmative.

 

26.       This takes me to the issues for determination formulated above. Issue one is whether this Court has jurisdiction to entertain reliefs [a], [b], [c], [d], [e] and [f]? Learned counsel for the Defendant compartmentalized relief [a] into three distinct claims, [a][i], [a][ii] and [a][iii]. He argued that this Court lacks jurisdiction to hear claims [a][i], [b], [c] and [d] because it is statute barred pursuant to Sections 8[1][a] and 9[1] of the Limitation Law of Lagos State; while claims [a][ii], [e] and [f] are not employment issues. According to learned counsel, the cause of action in respect of which claims [a][i], [b], [c] and [d] are grounded arose in 2006 and July 2007, which is a period of 12 years and 11 years respectively. The response of Claimant’s counsel is that Sections 8[1][a] and 9[1] of the Limitation Law of Lagos State are inapplicable and that, if there was any delay in making the claim, it was that of the Defendant which had the responsibility to do so. He argued that, assuming without conceding, the claims are statute barred, by Section 37 of the Limitation Law, Exhibits 7, 8 and 10 amount to acknowledgment and therefore resurrects the claims. On the second leg of the objection, he contended that the staff home construction facility arose out of the employer/employee relationship and performance was tied to the employment making this Court the appropriate forum to litigate it.

 

27.       The starting point in this consideration is the relevant provisions of the Limitation law of Lagos State. Sections 8[1][a] and 9[1] and [2] of the Limitation Law provide as follows:

 

“8[1]   The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued –

                                    [a]       actions founded on simple contract;”

 

“9[1]   This section applies to actions claiming damages for negligence, nuisance, or breach of duty [whether the duty exists by virtue of a contract or of a provision made by or under an enactment or independently of any contract or of any such provision], where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consists of or include damages in respect of personal injuries to any person.

 

 [2]      Subject to the provisions of this section, no action to which this section applies shall be brought after the expiration of three years from the date on which the cause of action accrued.”

 

The general rule is that where a statute provides for institution of an action within a prescribed period, any action brought outside that period is said to be statute barred. See National Revenue Mobilization Allocation and Fiscal Commission & Ors. v. Ajibola Johnson & Ors. [2019] 2 NWLR [pt.1656] 247 at 270. In determining whether an action is statute barred, it is important to ascertain when the cause of action arose. See the case of Mudun & Ors. v. Adanchi & Ors. [2013] LPELR-20774[CA] 37. A cause of action accrues when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the Claimant to succeed. It consists of two elements, namely: the wrongful act of the Defendant and the consequent damage. See Mudun & Ors. v. Adanchi & Ors. [supra] at page 38 and Kano State House of Assembly & Ors. v. Umar [2014] LPELR-24008[CA] 47-48.

 

28.       It is clear from claims [a][i], [c] and [d] that the Claimant’s action is not strictly for damages for his injuries, but damages for the Defendant’s negligence in processing his claims under the Group Personal Accident Insurance scheme. For this reason, the cause of action could not have arisen in December 2006 when the armed robbery attack took place, but from the date when the Claimant became aware of the Defendant’s default in processing his compensation. This is so because it is only at that point that all facts which are material for the Claimant to prove to entitle him to succeed could be said to have happened. In respect of relief [b], the approval of the sum of N20, 000 as salary for the Claimant’s driver was to take effect in July 2007 for a period of one year. So, the cause of action did not accrue in July 2007 but after the expiration of one year from that date and when it became evident that the Defendant was not ready to pay it. Also, it would have been impracticable for the Claimant, who was still in the Defendant’s employment to maintain an action against it. That would amount to a repudiation of the contract of employment. The law indeed does not require performance of the impossible. See Attorney General of Lagos State v. Mamman Keita [2016] LPELR-40163[CA] 19-22. In any event, the Defendant’s approval of N20, 000 monthly salary for the Claimant’s driver does not come within the provision of Section 8[1][a] of the Limitation Law, as it cannot be regarded as a simple contract. It is a grant made to the Claimant arising from his temporary incapacity at the time.

 

It should be noted, contrary to the submission of learned counsel for the Claimant, that the issue of acknowledgement does not arise. Section 37 of the Limitation Law provides that “’acknowledgment’ means an acknowledgment under section[s] 38, 39, 40, 41, 42, 43 or 44 made in accordance with section 45 of this Law.” This case does not come within any of those sections.

 

29.       Furthermore, statutes of limitation of actions have been held not to apply to contracts of service. See National Revenue Mobilization Allocation and Fiscal Commission & Ors. v. Ajibola Johnson & Ors. [supra] at pages 270-271. This decision was applied by this Court in the case of Lilian Nnenna Akumah v. First Bank of Nigeria Plc, Suit no. NICN/LA/402/2018, which ruling was delivered on 10th October 2019. The objection was based on Section 8[1][a] of the Limitation Law of Lagos State. My learned brother, Justice Essien observed that:

 

“The defendant counsel has [sic] tried to argue that the above cited Supreme Court decision does not apply to the present case because it was decided based on the S. 2[a] of the Public Officers Protection Act, while the present case is considered under S. 8[1][a] of the Limitation Law of Lagos State. That distinction is neither here nor there. Both statutes are statutes of limitation of action. The subject matter of what they deal is contract of employment. Therefore, both statutes stand side by side in so far as it relates to limitation of action in contract of employment. While one is a federal enactment the other is a state law. The decision of the Supreme Court on any of the statute[s] must of necessity guide a court of record in the application of any of those enactment[s] on the subject matter of limitation of action in contract of employment.”

 

I completely agree and hold that claims [a][i], [b], [c] and [d] are not statute barred.

 

30.       With respect to the second leg of the objection, learned counsel for the Defendant argued, and rightly in my view, that by the combined force of Section 7[1] and [2] of National Industrial Court Act, 2006 and Section 254C[1][a] of the 1999 Constitution, this Court has jurisdiction over matters relating to or connected with labour, employment, conditions of service, matters arising from the workplace and matters incidental to or connected therewith. Where the matter is strictly a labour issue there is usually no problem. The problem arises when the subject matter falls within the borderline cases, that is, matters which are alleged to be incidental to or connected with employment. This Court has evolved a principle that would help it in determining whether such matters are within its jurisdictional competence. In Oyebanji Julius Odeniyi & Ors. v. Shell Petroleum Development Company of Nigeria Limited, Suit No. NICN/LA/648/2013, my Lord, Justice B. B.  Kanyip, PNICN, held, inter alia:

 

“When in doubt as to jurisdiction especially in the hybrid/borderline cases, this Court has evolved a simple but effective expedient; and that is to ask the question: what legal rules would apply in resolving the issue at hand? If it is labour or employment law rules, then the Court would assume jurisdiction, but if it is some other rule of law then most probably the Court would have no jurisdiction….But regarding other heads of liability in tort, which are all sui generis, the NIC has been reluctant to assume jurisdiction even when the “matters incidental thereto or connected therewith” argument has been raised. Towards this end, this Court had declined and still declines jurisdiction in claims for defamation even when the defamatory imputation was said to have arisen from the workplace…The fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on the court except an employment issue is involved.”

 

31.       It is the law that the claim determines the jurisdiction of the Court, see Emeka v. Okadigbo & Ors. [2012] LPELR-9338[SC]. The facts in support of the claims are contained in paragraphs 35 to 46 of the statement of facts. As rightly argued by Claimant’s counsel, the staff home construction facility arose out of the employment relationship between the Claimant and Defendant and performance was tied to the employment. Even the nomenclature of the loan shows it is intertwined with the Claimant’s employment. In line with the principle laid down by this Court on borderline cases, I agree with learned counsel for the Claimant that this Court has jurisdiction to entertain reliefs [a][ii], [e] and [f] and I so hold. In the circumstance, issue 1 is resolved in the affirmative.

 

32.       This leads me to the second issue for determination which is, whether the Claimant is entitled to judgment on his claims? In proof of his claims the Claimant testified for himself and tendered 34 exhibits. A close scrutiny of the claims will show that there are three arms of the Claimant’s claims. The first is compensation under the Group Personal Accident Insurance scheme. The second is payment of the sum of N20, 000 per month approved for the Claimant’s driver for one year following injuries on Claimant’s legs; and lastly, the non-release of his title document and consequent claim for damages. Under the first arm of his claim, the Claimant claims both in contract and negligence. The second and third arms are clearly rooted in contract though inelegantly couched in partly negligence and partly contract. This classification is necessary as it will help to properly situate the evidence adduced in support of the claims.

The law on negligence is well settled. To succeed in negligence, one pertinent question which arises for consideration is whether as between the alleged wrongdoer and the person wronged and who suffered damage, there is sufficient proximity such that it is in the reasonable contemplation of the former that carelessness on his part may likely cause damage to the latter. See A.B.C. Transport Company Ltd. v. Miss Bunmi Omotoye [2019] 14 NWLR [pt.1692] 197 at 211. The burden of proof of negligence falls squarely on the Claimant who alleges it. This is because negligence is a question of fact. See A.B.C. Transport Company Ltd. v. Miss Bunmi Omotoye [supra] at page 209. In discharging this burden, the Claimant is required to prove three essential elements which have been highlighted by learned counsel for the Claimant and, for the sake of emphasis, are repeated here. They are: existence of a duty of care owed to the Claimant by the Defendant; breach of that duty of care by the Defendant; and consequent damage. See A.B.C. Transport Company Ltd. v. Miss Bunmi Omotoye [supra] at page 211.

 

33.       What are the facts in proof of negligence? These are contained in paragraphs 27, 28, 29, 30, 31, 32, 34 and 59[b] of the statement of facts which form paragraphs 26, 27, 28, 29, 30, 31, 33 and 58[b] of the Claimant’s statement on oath and, for clarity, are reproduced here:

 

“26.     According to my letter of employment and the Employee Handbook, I am entitled to Group Personal Accident Insurance Scheme on the permanent disability I suffered from injuries I sustained from gunshot wounds in the bank robbery, however, the Defendant has refused failed and or neglected to make the insurers pay me the insurance cover till date. The Employee Handbook is hereby pleaded and will be relied on at the trial.”

 

“27.     Through internal mail I wrote to Mr. James Okwesa of Financial Control requesting for payment of compensation on the permanent disabilities I sustained from the robbery attack in the bank, the Financial Control promised to get back to me but failed to do so.”

 

“28.     Audit Department of the Defendant through internal memo dated the 31^st day of May 2007 forwarded to Idimu branch a letter dated the 25^th day of May 2007 from FBN Insurance Brokers Nigeria Ltd requesting for Police investigation report to enable the Defendant’s insurers pay the stolen moneys. The internal memo and FBN Insurance Brokers Nigeria Ltd letter are hereby pleaded and will be relied on at trial. Notice is hereby given to the Defendant to produce the original internal memo and FBN Insurance Brokers Nigeria Ltd letter.”

 

“29.     The Defendant has since been indemnified/paid by its insurers of all the moneys stolen in the bank during the robbery attack, however, the Defendant has refused failed and or neglected to make the insurers pay me the insurance cover on the permanent disability I suffered from the robbery attack.”

 

“30.     After waiting endlessly for payment of compensation on the permanent disabilities from the insurers I wrote internal mail dated the 1^st day of December 2014 to Mr. Bode O. Awobo of Financial Control Department to remind the Defendant that I have still not been paid any compensation on the injuries, Mr. Bode O. Awobo through his reply dated the 8^th day of December 2014 forwarded my mail to FBN Insurance Brokers Nigeria Ltd which handles all insurance claims of the Defendant and its staff to remind it about my claims. I hereby plead and will rely on the internal mails and certificate of authentication on the mails at the trial. Notice is hereby given to the Defendant to produce the original internal mails.”

 

“31.     Due to my mail demanding for payment of compensation on the permanent injuries sustained in the robbery attack, the Defendant through internal mail written by Nnamdi N. Uzoukwu dated the 11^th day of February 2015 requested for documentations from me to enable it contact the insurers for claim under the bank’s Group Personal Accident Insurance Scheme. I responded to the request through internal mail dated the 10^th day of March 2015 by forwarding the required documents and the medical report from Krown Hospital. I hereby plead and will rely on the internal mails and certificate of authentication on the mails at the trial. Notice is hereby given to the Defendant to produce the certificate of authentication of its internal mail dated 11^th February 2015.”

 

“33.     I hereby claim the maximum insurance that I am entitled to under the Group Personal Accident Insurance Scheme from the Defendant as shall be determined by the Honourable Court, I also claim additional damages for non-payment of the insurance cover/policy in the sum of N200, 000,000.00 [two hundred million naira].”

 

“58.     I hereby plead that the Defendant was negligent in its dealings with me.

 

Particulars of Negligence

 

“b.       Defendant’s refusal failure and or neglect to pay me compensation on the permanent disability I suffered from the armed robbery attack as provided in the Group Personal Accident Insurance Scheme as provided in the Employee Handbook, however, the Defendant was quick in recovering back all the moneys it lost during the armed robbery attack from its insurers.”

 

34.       The Claimant also relied on Exhibits 6, 7, 8 and 34. Exhibit 6 is the Defendant’s request for Police investigation report of the armed robbery incident. Exhibit 7 is email correspondence between the Claimant and Mr. Bode O. Awobo, who is the officer in charge of Regulatory, Tax and Insurance in the Financial Control Department of the Defendant. Paragraph 3 of the Claimant’s email of 1st December 2014 is revealing. He wrote: “As discussed when we were at the training last week, find attached documents showing that as at date no form of compensation on the injuries I sustained during the dastardly armed robbery attack at Idimu branch on 14/12/2006 has been paid.” Mr. Bode O. Awobo forwarded the email and attachment to one Emmanuel A. Nwaogwugwu to review and advise. In response to the Claimant’s follow-up email of 8th December 2014, Mr. Bode O. Awobo wrote: “Mail forwarded to FBN Insurance”. Exhibit 8 shows the steps taken by the relevant officers of the Defendant to process the claim. In his email of 10th February 2015, Mr. Emmanuel A. Nwaogwugwu directed Mr. Nnamdi N. Uzoukwu to treat. On 11th February 2015, Nnamdi N. Uzoukwu wrote to Mr. Bode O. Awobo asking for further particulars to facilitate processing of the claim. On 10th March 2015, the Claimant forwarded the relevant documents to one Morenike O. Olaiya with the completed claim form. The Leadway Assurance Company Limited ‘NOTICE OF INJURY FORM’ is very instructive. It states “Particulars of Accident to be furnished by the employer”. At the foot of the form is a provision for the employer’s signature, showing clearly that the responsibility for activating the insurance claim rests squarely on the Defendant.

 

35.       The next document is Exhibit 34, the employee handbook. Article 15.10 dealing with Group Personal Accident Insurance Scheme provides:

 

“The Bank maintains a group personal accident insurance scheme that covers all serving employees. Details of the scheme are set out in the Group Accident Insurance Policy, which is available for reference at the office of our insurance brokers, FBN Insurance Brokers Limited. Some of the Highlights of the scheme are:

           

·        The benefit derivable from the scheme terminates with the exit of the employee from the Bank’s services;

·        An employee covered by the scheme shall be entitled to an appropriate compensation in the event of permanent disability.”

 

It is clear the Claimant was covered under this policy, and this clause did not impose any duty on the Claimant to process his compensation.  

  

36.       The Defendant denied paragraphs 27, 28, 29, 30, 31, 34 and 59[b] of the statement of facts and put the Claimant to the strictest proof; and in paragraphs 9 and 12[a] averred thus:

 

“9.       In response to paragraphs 27, 28, 29, 30, 31, 32, 33 and 34 of

the Statement of Facts, the Defendant avers as follows:

 

a.      The Defendant avers that whilst in its employ the Claimant did not make any claims with respect to clause 15.10 of the Employee Handbook directly to the Insurance Company as expected under the Insurance policy covering the claim; and puts the Claimant to the strictest proof otherwise.

 

b.      The Defendant further avers that the provisions of Clause 15.10 of the Defendant’s Employee Handbook applies only to members of staff still in the Defendant’s employment, and not to the Claimant who has since voluntarily retired.

 

c.      Further to the above preceding paragraph, the Defendant avers that the Claimant is not entitled to benefit under the Defendant’s Group Personal Accident as claimed, as only employees currently in employment is [sic] entitled to the insurance cover. The defendant puts the Claimant to the strictest proof otherwise.

 

d.      Even where the Claimant had applied under the said Group Personal Accident Insurance policy while in employment all he would have qualified for would be compensation for Temporary Total Disablement, not permanent disablement. The Defendant puts the Claimant to the strictest proof otherwise.”

 

“12.     In specific response to paragraphs 56, 57, 58, 59 [a-d], 60 [a-e] and 61 [a-i]

 

a.      The Claimant never made a claim for compensation from the Defendant. The Defendant shall at the hearing of this suit rely on internal memo dated 18^th June 2007 from the Claimant to the Defendant.”

           

37.       Article 15.10 of the Employee Handbook has been reproduced above. The internal memo dated 18th June 2007 is Exhibit 3 and Exhibit D6. Therein, the Claimant wrote inter alia:

 

“I write in respect of my letter of 23rd March, 2007 in which I made a passionate request for the defraying of the cost of paying a driver hired by me. This request arose as a result of gun-shot wounds received on my legs during the armed robbery attach [sic] on our branch [Idimu Branch] on 14th December 2006.

 

This my request is not for compensation but an assistance from the management, as the doctors strongly adviced [sic] that I should not stress the leg for the next one year or more to enable the wound heal properly.”

 

The Defendant appears to read paragraph 2 of Exhibits 3 and D6 to mean the Claimant did not ask for compensation. This will amount to reading the email out of context. Paragraph 2 read with paragraph 1 will show that the Claimant intended to disabuse the mind of the Defendant’s officers that the request for N20, 000 was for compensation for his injuries. It also did not imply the Claimant was waiving his right to compensation for the injuries. He needed to keep his job and to do this he needed someone to drive him to work. That was the greatest need of the moment and for which he sought assistance.

 

Also, it would appear that the basis of Defendant’s denial of negligence is that the Claimant did not make any claims directly to the insurance company as expected under the insurance policy. This is clearly a misunderstanding of the basis of the Claimant’s claim. First, as the name suggests, it is a policy issued to a group of people and its purpose is to provide a comprehensive financial protection for the employer against expenses incurred due to disablement or death of the employee resulting from accidental injury. Drawing an analogy from the Employees Compensation Act, it is evident that the employer activates the claim.

 

38.       In buttressing his argument that the Defendant does not owe the Claimant any duty of care under the Group Personal Accident Insurance scheme, learned counsel contended, in paragraph 5.30 of the Defendant’s final written address, that from clause 15.10 of Exhibit 34, the responsibility to process the insurance claim does not lie on the Defendant and cannot be imputed to it. As a result, it cannot be said that the Defendant owed the Claimant any duty of care in respect of the insurance policy. It was also argued that the Claimant did not place the Group Personal Accident Insurance Policy or the premium paid on his behalf before the Court. Counsel further argued that if anyone was negligent, it would be the Claimant who slept on his rights.

 

On his part, learned counsel for the Claimant contended that the Claimant was entitled to compensation under the Defendant’s Group Personal Accident Insurance Scheme and, being a group insurance cover, it is only the employer who can cause compensation to be paid to the affected staff.

He, therefore, argued that it is the Defendant’s duty to process and make the insurance company pay the compensation which informed the email exchange, Exhibits 6, 7 and 8.  But, this duty the Defendant refused, failed and/or neglected to discharge.

           

39.      Article 15.10 of Exhibit 34 is clear. Therein the Defendant informed its staff that it maintains a group personal accident insurance scheme for all serving employees and gave the highlights of the policy, details of which could be accessed at the insurance brokers’ office. This did not imply that it was the employee’s responsibility to process his claim. As rightly argued by learned counsel for the Claimant, being a group insurance cover, it is only the employer who can cause compensation to be paid to the affected staff. This fact becomes evident when Article 15.10 of Exhibit 34 is read together with Exhibits 6, 7, 8 and the Leadway Assurance Company Limited form attached to Exhibit 8. What emerges is that it was not within the contemplation of the parties or the Group Personal Accident Insurance policy that the employee should process his claim under the policy.

 

On counsel’s submission that the Claimant did not produce the policy document or lead evidence on its terms or payment of premium on his behalf, it must be noted that there was no dispute about the existence of the Group Personal Accident Insurance policy and payment of premium on the policy by the Defendant. For this reason, the Claimant was not under any duty to produce the policy document or lead evidence on payment of premium on his behalf. The cases of Palm Beach Insurance Co. Ltd. v. Max Bruhns [supra] and The United Nigeria Insurance Co. Ltd. v. Universal Commercial and Industrial Co. Ltd. [supra] cited by learned counsel did not decide on Group Personal Accident Insurance Policy and are thus not relevant to this case. This, notwithstanding, in Palm Beach Insurance Co. Ltd. v. Max Bruhns [supra] at page 96, Akpabio, J.C.A. [as he then was], posited that:

 

“It is a correct statement of our law that in cases founded on contract, the contract document sought to be interpreted or enforced, [or the relevant portions of it] must be tendered in evidence. But that is usually in cases where there was dispute between the parties as to what was agreed. … However, in cases where there was no dispute as to what was agreed [or the portion of the contract sought to be enforced] there is usually no need, to tender the contract document as an exhibit.”

 

The learned law lord went on to hold, at page 97 of the report, that the Respondent had no duty to tender the insurance policy since he was not relying on any of its provisions to make his claim. The Claimant in this case is not relying on the provisions of the Group Personal Accident Insurance policy. His case, as I see it, is that based on his contract of employment and Article 15.10 of Exhibit 34, he is entitled to compensation for injuries sustained in the course of duty and that it was the Defendant’s duty to ensure this compensation was paid to him.

 

Also, the issue of the Claimant sleeping on his right does not, in my respectful view, arise. A report of the incident was made to the Chief Internal Auditor of the Defendant on 8th January 2007, Exhibit 1 but who, in seeking compensation for the Defendant, ignored the Claimant’s claim, Exhibit 6.     

 

40.       From the oral and documentary evidence, I find the following facts are established:

 

a.      The Defendant is the insured in the group personal accident insurance scheme.

b.      The responsibility to report the accident and process the claim for compensation of an injured employee rests on the Defendant.

c.      The Defendant neglected to process the Claimant’s claim along with its claim for compensation.

d.      When the relevant officers of the Defendant received the necessary documents, they were tardy in processing the claim. The Claimant was not informed whether the claim was approved or repudiated by the insurer till his exit from the Defendant.

e.      Exhibits 3 and D6 did not imply that the Claimant was waiving his right to compensation under the Group Personal Accident Insurance scheme.

           

41.      Applying the test in A.B.C. Transport Company Ltd. v. Miss Bunmi Omotoye [supra], which is: proof of existence of a duty of care owed to the Claimant by the Defendant, breach of that duty of care by the Defendant, and consequent damage; I ask the following questions: did the Defendant owe the Claimant a duty of care in these circumstances? The answer is yes. The Defendant owed the Claimant a duty pursuant to his contract of employment to ensure he is compensated for injuries sustained in the armed robbery attack at its Idimu branch. Did the Defendant observe the standard of care and skill which would be expected of a reasonable ordinary man in the circumstances? The answer is a resounding no. The Defendant breached this duty by failing to give due care and attention in processing Claimant’s compensation under the Group Personal Accident Insurance Scheme. The speed with which the Defendant processed its compensation in utter neglect of its staff who sacrificed his life for its business speaks volume of the corporate culture of the Defendant and gives credence to Claimant’s evidence in paragraph 57 of his statement on oath that the Defendant does not place any value or interest on its staff. Even when the Defendant initiated the process, the Claimant was not informed of the outcome: whether the insurance company repudiated the claim or approved it. The resultant damage is the Claimant’s inability to receive compensation under the Group Personal Accident Insurance scheme up till the time of his exit from the Defendant.

 

However, I do not find negligence proved in respect of the non-payment of approved N20, 000 for Claimant’s driver, non-release of Claimant’s title document following full repayment of the staff home construction loan and non-payment of two months ex gratia and gift of a golden wristwatch as part of his 35 years long service award. The particulars of negligence in paragraph 59[a], [c] and [d] of the statement of facts apart from alleging breach did not set out the damage resulting from the breach. The three ways test of negligence must be proved to succeed in an action for negligence. See A.B.C. Transport Company Ltd. v. Miss Bunmi Omotoye [supra] and Okwejiminor v. Gbakeji & Anor. [supra]. In Okwejiminor v. Gbakeji & Anor. [supra] at pages 50-51, cited by learned counsel for the Claimant, Muhammad, J.S.C., quoting Lord Wright in Lochgelly Iron and Coal Co. v. M’mullan [1934] AC 1 at 25, was more specific. He posited that negligence means more than heedless or careless conduct, whether in omission or commission. It is a complex concept of duty, breach and damage suffered by the person to whom the duty is owed. These are non-existent in this case. While the facts may ground a claim for breach of contract, it does not prove negligence and I so hold.

 

42.      This leads me to a consideration of the reliefs sought by the Claimant. Relief one is for a declaration that the Defendant is negligent to wit: Defendant’s non-payment of compensations due to the Claimant with respect to the permanent injuries suffered by the Claimant resulting from the gunshot wounds he sustained in the armed robbery attacks on the Defendant bank as provided in the Group Personal Accident Insurance Scheme and non-payment of moneys spent on hiring a driver for one year: Defendant’s failure and or refusal to release Claimant’s Deed of Assignment dated the 26th day of January 2010 registered at the Lands Registry in the office at Alausa, Ikeja as number 37 at page 37 in volume 2261 used as security for the Home Loan Construction (Staff) facility despite the full repayment of the loan, and Defendant’s failure and or refusal to make two months ex gratia payment and a golden wristwatch due to Claimant for 35 years long service award.

 

The pleading in support of this claim is paragraphs 7 to 59 of the statement of facts which form paragraphs 7 to 58 of the Claimant’s statement on oath, while the Defendant’s evidence is in paragraphs 3 to 34 of the Defendant’s witness’ deposition. The Claimant testified that while performing his duties for the Defendant, armed robbers raided his Branch on 14th December 2006 and shot him on both legs as a result of which he was hospitalized for over a month. After his discharge on 22nd January 2007, he continued his treatment as an outpatient and resumed work in March 2007. On the advice of his doctor, he employed a driver and sought for and obtained Defendant’s approval to pay the driver’s salary of N20, 000 per month for one year which was not paid compelling him to source for funds to pay the driver’s salary. He also testified that his Branch Manager made a report of the incident to the Chief Internal Auditor on 8th January 2007 and, by his contract of employment, he was entitled to compensation for his injuries on the Defendant’s Group Personal Accident Insurance policy. In spite of repeated demands the Defendant refused failed and or neglected to secure payment of the compensation from its insurers, but was quick to claim compensation for its stolen money during the robbery incident. He also stated that he was granted a staff home construction loan of N8, 000,000.00 in August 2012 secured by a legal mortgage over his property at Odo-Esa Close, Harmony Estate, Ifako Gbagada, Lagos and deposit of the Deed of Assignment in respect of the property. He fully repaid the loan but the Defendant failed or neglected to release his Deed of Assignment which affected some business transactions he wanted to go into after retirement. The Claimant also stated that the Defendant has a policy for rewarding staff who worked for certain number of years with gifts items in addition to two months ex gratia payments, called long service award.  He was honoured with the long service awards upon attaining 10, 15, 20, 25 and 30 years and was entitled to a golden wristwatch, 2 months ex gratia and reparation after 35 years of meritorious service with the Defendant but was only paid reparation allowance. He put the current market value of an average golden wristwatch at US$26, 000. Under cross-examination, he confirmed that the Defendant attended to his medical needs after the robbery incident and did not deny him of his emoluments. He also stated that those who retired were given a golden wristwatch and 2 months ex gratia, he had the document to prove this but lost it but the long service honours award committee has it. He also confirmed that he waited for 2 years before requesting for his title documents because just like any other customer he had the right to ask for his document any time he needed it. He equally confirmed that it was the duty of the Defendant to process insurance claims on behalf of the staff.

43.      The Defendant’s evidence is that it is neither liable in negligence nor breach of contract in that the Claimant did not make any claims in line with Article 15.10 of Exhibit 34 directly to the insurer. Also, the Defendant denied approving a driver for the Claimant, and that its policy for staff retiring after 35 years in service is to give reparation allowance only which has been paid to the Claimant. It is the Defendant’s case that it did not refuse or neglect to release the Claimant’s title document to him. The delay arose from the need to properly liaise with relevant departments for account reconciliation and when the document was ready it was not delivered to the Claimant because he could not be found at his designated addresses.

 

The arguments of learned counsel for the parties have been reproduced earlier in this judgment. I have dealt extensively on the issue of Defendant’s negligence in the preceding paragraphs of this judgment. I adopt my reasoning and conclusion above in finding the Defendant liable in negligence to the Claimant for its handling of the Claimant’s claim for compensation under the Group Personal Accident Insurance scheme.

 

However, as I said earlier, I do not find negligence proved in respect of the non-payment of approved N20, 000 for Claimant’s driver, non-release of Claimant’s title document following full repayment of the staff home construction loan and non-payment of two months ex gratia and gift of a golden wristwatch as part of his 35 years long service award. The particulars of negligence in paragraph 59[a], [c] and [d] of the statement of facts apart from alleging breach did not set out the damage resulting from the breach. The three ways test of negligence which must be proved for the Claimant to succeed in an action for negligence are non-existent. See A.B.C. Transport Company Ltd. v. Miss Bunmi Omotoye [supra] and Okwejiminor v. Gbakeji & Anor. [supra]. In fact, in the latter case, Muhammad, J.S.C., remarked that negligence means more than heedless or careless conduct, whether in omission or commission. While the facts may ground a claim for breach of contract, it does not prove negligence.

 

The law is trite that a Claimant who seeks a declaratory relief must establish his entitlement to it because a declaration of right is not granted perfunctorily. See Nwagu v. Fadipe [2012] LPELR-7966[CA] 16-17 and Ilori & Ors. v. Ishola & Anor. [supra]. This proof is lacking in respect of the non-payment of approved N20, 000 for Claimant’s driver, non-release of Claimant’s title document and non-payment of the 35 years long service award. I find negligence proved as regards the Defendant’s handling of the Claimant’s claim for compensation for injuries sustained in the armed robbery attack on the Defendant’s Idimu branch. Relief one therefore succeeds in part.

 

44.      Relief two is for an order of the Honourable Court directing the Defendant to pay to the Claimant the sum of N9, 678,002.98 [nine million six hundred and seventy eight thousand two naira, ninety eight kobo] being the principal and interests on moneys spent by Claimant in hiring a driver as at the 30th day of September 2018, and after judgment at an interest rate of 15% until the sum is fully liquidated. The pleading in support of this claim is paragraphs 19, 21, 22, 23, 24, 25, 26 and 60[a] of the statement of facts which are reproduced in paragraphs 18, 20 to 25 and 62[a] of Claimant’s statement on oath and Exhibits 2, 3, 4, 5, 29, 32 and 33. A summary of the Claimant’s evidence is that sequel to the gunshot injuries which affected his two legs, he was advised by his doctors to refrain from driving for a period of one year. As a result, after discharge from the hospital, he hired a driver and sought assistance from the Defendant to defray the salary of the driver at N20, 000 per month. The Defendant, through its Executive Director, Lagos and West, graciously approved the request but subsequently reneged thus compelling him to source for money to pay the driver’s salary for one year. He therefore claims the sum of N9, 678,002.98 being the principal money paid to the driver and accrued interests as at 30th September 2018. Under cross-examination he said he was not entitled to a driver in 2006 when the unfortunate incident happened and his request for a driver was not an entitlement. He stated that exhibit 33, which is the basis of computation of the sum of N9, 678,002.98 was not a figment of his imagination. The Defendant denied approving a driver for the Claimant and stated that it offered the Claimant two options: a contract driver or relocation to a branch closer to his residence. After weeks of silence the Defendant reiterated that it would be willing to give the Claimant a contract driver and not cash. The Claimant thanked the Defendant for its concern and his promotion which enabled him to pay the driver’s salary. See paragraphs 10 to 13, 26 to 31 of Defendant’s witness’ statement on oath. During cross-examination he maintained that no approval was given to the Claimant to hire a driver. He confirmed that the Claimant was advised to refrain from driving as in Exhibit 3 and that the document bears “approved” on it.

 

45.      In urging the Court to refuse this claim learned counsel for the Defendant submitted that Exhibit 33 cannot be trusted because it does not have a heading and is unsigned. He argued that if the Court decides to attach evidential value to Exhibit 33, the Court would observe that what the Claimant asked for was for a driver to be paid a monthly salary of N20, 000 for a period of one year. He referred to Exhibits 2 and 3 and paragraph 21 of Claimant’s statement on oath. Counsel also argued that assuming the Defendant approved payment of N20, 000 to the driver, the Claimant has not produced evidence of payment made to the driver and the interest. He relied on Alhaja Sherifat Balogun & Anor. v. Egba Onikolobo Community Bank [Nigeria] Limited [2007] 5 NWLR [pt.1028] 584 at 603.  He further argued that Exhibit 24, Claimant’s Solicitor’s demand letter is not proof of liquidated sum. Counsel also referred to Exhibit D11 to show that the Claimant had abandoned the claim for salary of the driver.

 

In his response, Claimant’s counsel argued that as a corporate entity the Defendant is obligated to discharge its responsibilities to its staff and, as a result, bound to pay the sum of N20, 000 per month approved for Claimant’s driver. Relying on Adamu v. Ashaka Cement Co. Plc [supra] he contended that in law, an agreement signed by a manager or principal officer of a company is valid and binding on the company.

 

46.      It is not in dispute that the Claimant’s request on 23rd March 2007 is not for an approval to hire a driver, but for assistance to defray the cost of a driver he had hired, Exhibits 2 and 3. The application went through the Defendant’s approval process and was approved by the Executive Director, Lagos and West on 7th July 2007, Exhibit 3. By Memo dated 9th July 2007, the Defendant’s Business Development Officer, Ikeja II, Mr. Olumide A. Ogundero, conveyed the Defendant’s approval to the Claimant and made the payment effective from July 2007, Exhibit 5. While awaiting the approval, by email dated 2nd July 2007, Exhibit 29, one Isaac L. Ladepo wrote to the Claimant advising him that his request was receiving attention but sought for the “best sustainable and enduring assistance to support your plight in the circumstance. … Would a relocation possibly assuage your present predicament?” By his reply email of 10th July 2007, the Claimant appreciated Mr. Ladepo’s prompt response to his plea and wrote thus:

 

“On the issue of possible relocation, I appreciate the idea and will like to be relocated to branches near Gbagada … Maryland, … Ogudu, Allen, Ojodu, Opebi, Alausa, Agidingbi, Shomolu, Bariga.”

 

By Exhibit 32 dated 8th August 2007, the Claimant was redeployed to Agidingbi Branch of the Defendant. By email of 9th August 2007, the Claimant’s Branch Manager protested the redeployment to lower functions on the ground that he was not incapacitated to discharge his duties. Exhibit 24 is Claimant’s Solicitor’s demand letter to the Defendant.

 

47.      The Defendant sought to show that by Exhibit D10 it had varied the approval to pay N20, 000 to Claimant’s driver. The email dated 10th July 2007 was from the Head, Human Capital Management to the Executive Director, Lagos and West. By another email dated 13th July 2007, the Head, Human Capital Management wrote to the Business Development Manager, Ikeja 1 and copied the Claimant directing “a swap with Mr. Nkume from any of the following branches, Ojodu, Opebi, Agidingbi, Shomolu and Bariga.” The Claimant was subsequently asked to comment on this email and his response, which is attached to Exhibit D10 is dated 6th August 2007. He reiterated what he said in his email of 10th July 2007 and noted thus:

 

“On the issue of direct cash payment of N20,000 monthly as driver’s allowance for one year which may alter my financial status significantly and may be difficult for me to adjust subsequently after the pat [sic] terminates. I believe this is a very wrong and erroneous assertion as my reminder memo of 18/06/2007 clearly stated that I have hired a driver on resumption to duty since March 2007, whom I have been paying from my salary since then till mow [sic]. What should have elicited a reaction on this, is a confirmation of whether there is actually a driver or not. The payment of N20,000 cash goes directly to the driver and therefore would in no way affect my lifestyle. Indeed, what should affect my lifestyle is the extra burden I have to carry by paying the driver from my monthly salary.”

 

From the above, it is clear that the Claimant’s response to Mr. Isaac L. Ladepo’s email of 10/09/2007 in Exhibit D11 was borne out of exasperation and not that he no longer needed the financial assistance for the driver. So far, the Defendant has not produced any documentary evidence countermanding the Executive Director’s approval of N20, 000 for the Claimant’s driver. Also, there is nothing before me to show that the Executive Director, Lagos and West, approved the position paper presented by the Head of Human Capital Management. If there was indeed a variation of the approval to pay the sum of N20, 000 monthly for one year to the Claimant’s driver, it must be expressly stated and cannot be implied from any of the Exhibits before me. I therefore hold that the Defendant having approved payment of the sum of N20, 000 monthly as salary for the Claimant’s driver is estopped from arguing otherwise. In Anaeze v. Anyaso [supra] at pages 42-43, Karibi-Whyte, J.S.C., observed that:

 

“It is a well settled principle of the English common law applicable to this country that where a person by his conduct represented to another of the existence of a state of affairs and has induced such other person to act in reliance thereof, he will be bound by the fair inference to be drawn from his word or conduct.”

 

See also the case of Maiyegun & Ors. v. The Governor of Lagos State & Ors. [2010] LPELR-4459[CA] 18-19 and Section 169 of the Evidence Act, 2011.

 

48.      In the circumstance, I agree with learned counsel for the Claimant that the Defendant, having approved payment of N20, 000 monthly as salary for the Claimant’s driver from July 2007 for a period of one year, is obligated to pay it and I so hold.

 

However, on the issue of interest on the sum of N20, 000, the law on pre-judgment interest is well settled and, for emphasis, interest may be awarded in two distinct circumstances, namely: as of right and where there is a power conferred by statute to do so in the exercise of the Court’s discretion. Interest may be claimed as of right where it is contemplated by the agreement between the parties, under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is claimed as a matter of right, the proper practice is to claim entitlement to it in the originating process and plead facts which show such entitlement. See Alhaja Sherifat Balogun & Anor. v. Egba Onikolobo Community Bank [Nigeria] Limited [supra] and Interdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [2017] 13 NWLR [pt.1581] 52 at 72-73. While Exhibit 33 shows how the interest was computed, there is no evidence on how the Claimant arrived at the interest rate of 23% per annum. Also, the payment of N20, 000 to the Claimant’s driver is an act of favour and not an entitlement. This was acknowledged by the Claimant under cross-examination. He said:

 

“I was not entitled to a driver in 2006 when the unfortunate incident happened. My request for a driver was for help not an entitlement.”

 

In the circumstance, the rule of equity which allows the Court to award interest in cases where it is unconscionable for a party to hold on to the money belonging to another does not avail the Claimant. For this reason, I find that the Claimant is entitled to the sum of N20, 000 per month for a period of one year as approved by the Defendant. The claim for interest on this amount is refused. Arising from the foregoing, this claim succeeds in part.

 

49.      Relief three seeks an order of the Honourable Court directing the Defendant to pay full compensation as covered by the Group Personal Accident Insurance Scheme to the Claimant as shall be determined by the Honourable Court for the permanent disability suffered by the Claimant from injuries sustained during the armed robbery incident in Defendant’s Idimu branch. I found earlier in this judgment that the Claimant was entitled to compensation under Defendant’s Group Personal Accident Insurance scheme; and being the insured, the Defendant was responsible for processing the compensation. It’s failure to do so was wrongful and denied the Claimant of compensation he would have received from the insurer for his injuries. However, the terms of the Group Personal Accident Insurance policy are not before me and the basis of claim under the policy has not been established. To make the order sought will amount to speculating on what the Claimant’s entitlement would be under the Group Personal Accident Insurance policy; and it is not the business of the Court to assume or speculate on what ought to be proved by evidence. See Universal Trust Bank of Nigeria v. Fidelia Ozoemena [2007] LPELR-3414[SC] 47 and Rivers Vegetable Oil Company Ltd. v. Mrs. Mercy Egbukole [2009] LPELR-8379[CA] 31. In the latter case, Eko, J.C.A [as he then was], cautioned thus:

 

“It is trite that the business of a court of law is not discharged or conducted by resort to speculation employed to fill whatever lacuna there may be in the evidence of a party.”

 

            It is equally the law that a party who seeks to enforce a contract document or the terms thereof, must tender in evidence the document or relevant portions of it. See Palm Beach Insurance Company Limited v. Mr. Max Bruhns & Anor. [supra] at page 96.

 

There is no such evidence. Accordingly, this relief fails.

 

50.      The fourth relief seeks an order of the Honourable Court directing the Defendant to pay the sum of N200, 000,000.00 [two hundred million naira] as damages for the Defendant’s abysmal handling of the injuries and compensation due to the Claimant resulting from the armed robbery attack on the bank on the 14th day of December 2006.

 

I have found elsewhere in this judgment that the Claimant was entitled to compensation under Defendant’s Group Personal Accident Insurance scheme; and being the insured, the Defendant was responsible for processing the compensation. It’s failure to do so was wrongful and denied the Claimant of compensation he would have received from the insurer for his injuries. I adopt my reasoning and conclusion in paragraphs 32 to 41 of this judgment in finding the Defendant liable to compensate the Claimant for its handling of the compensation due to the Claimant under the Group Personal Accident Insurance scheme resulting from the armed robbery attack on the Bank on 14th December 2006.

 

This relief is in the form of general damages. Undoubtedly, the Claimant went to work for the Defendant a complete man. He left the employment of the Defendant disfigured. No amount of compensation can restore him to his former life. The fact that he has to limp all his life and maybe depend on a driver to drive him around and the recurring pain and associated medical treatment will live with him for life. Award of general damages is within the Court’s discretion, which must be exercised judicially and judiciously. See Okwejiminor v. Gbakeji & Anor. [supra] at page 25. In Martin Usong v. Hanseatic International Ltd. [2009] LPELR-3434 [SC] 7, Ogebe, JSC, quoting with approval the judgment of Karibi-Whyte, J.S.C. in U.B.A. Ltd v. Achoru [1990] 6 NWLR [pt.152] 254 had this to say:

 

“The expression ‘loss of amenities of life’ which is exemplified in the physical disabilities of the plaintiff is hardly quantifiable in terms of money. This is generally because apart from the fact that every person is entitled to enjoy amenities of life, the natural and ordinary activity and age of the plaintiff, may determine the nature of the deprivation suffered by the physical injury. The value depends on the assessment of the trial judge based on the evidence, guided by awards made in respect of earlier similar disabilities.”

 

51.       In Alhaji Manu Bello v. Malam Nuhu Dankasa Dadah & Anor. [2016] LPELR-40337[CA] 60, the Court of Appeal laid a four-way test in determining the quantum of damages in personal injury cases. It held:

 

“The practice is now established and cannot be gainsaid that in personal injury cases the award of damages is assessed under four main heads: first: special damages in the shape of money actually expended. Second: cost of further nursing, the attendance and medical expenses. Third: pain and suffering and loss of amenities. Fourth: loss of further earnings.”

 

Both parties agree that the Defendant absorbed the cost of Claimant’s initial medical expenses. In the Claimant’s email of 06/08/2007 Exhibit D10, he wrote in paragraph 4 thus:

 

“On the issue of if it becomes inevitable, I am not a Medical Doctor, but I know the burden of pain I am carrying on my left leg daily. The Orthopaedic Surgeon/specialist who handled my case stated in clear terms that I should not put stress on the leg and I believe our Medical Adviser’s comment did not say otherwise.”

 

In his email of 1st December 2014, Exhibit 7, Claimant wrote: “I need to state that the scare/wound is yet to heal as I carry the pain on daily basis. Doctors have told me that the pain is till death do us part.” This clearly shows that the Claimant will need continual medical attention and be restricted in activities he can engage in. I found that the Claimant was entitled to compensation under Defendant’s Group Personal Accident Insurance scheme; and being the insured, the Defendant was responsible for processing the compensation. I also found that the Defendant’s failure to ensure that the Claimant was compensated under the policy was wrongful and denied him of compensation which he would have received from the insurer for his injuries. This is a wrong for which the Claimant is entitled to damages.

 

52.      It is trite law that where there is a wrong there must be a remedy. See Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] page 43 and Alhaji O. A. Oyekanmi v. National Electric Power Authority [2000] 15 NWLR [pt.690] 414 at 444-445. This is the cornerstone of any system of justice. In this regard, Onu, J.S.C., in Alhaji O. A. Oyekanmi v. National Electric Power Authority [supra], had this to say:

 

“On the principle of “Ubi jus Ibi Remedium” in Bello and 13 Others v. A-G, Oyo State [1986] 5 NWLR [pt.45] 828 at 890 this court per Oputa, JSC held that if from the facts available before the court it is satisfied:

 

[i]        that the defendant was under a duty to the plaintiff;

[ii]       that there was a breach of that duty;

[iii]     that the plaintiff suffered legal injury;

[iv]      that the injury was not too remote.

 

It will surely provide a remedy i.e. create one irrespective of the fact that no remedy is provided either at common law or by statute….The established principle of law is that a court of law being no ‘Father Christmas’ ought not to award to a party a relief he did not ask for vide Union Beverages Ltd. v. M. A. Owolabi [1988] 1 NWLR [pt.68] 128; …. Albeit, in the instant case, the court below ought to have used its discretion and based upon the evidence adduced in the trial court, to have awarded the appellant more than the N200,000.00 assessed thereat.”

 

Given these circumstances, I award the sum of N10, 000,000 in favour of the Claimant.

 

53.      Relief five is for an order of the Honourable Court directing the Defendant to return forthwith and handover to the Claimant the Deed of Assignment dated the 26th day of January 2010 registered at the Lands Registry in the office at Alausa, Ikeja as Number 37 at Page 37 in Volume 2261 used as security for the Home Loan Construction [Staff] facility same having been fully repaid, and to immediately file at the relevant Lands Registry a release of the Legal Mortgage that the Claimant has fully repaid the loan facility. Parties are agreed that the Defendant has the Claimant’s Deed of Assignment registered as 37/37/2261 in the Lands Registry Office, Alausa, Lagos which was collateral for the staff home construction facility availed the Claimant by the Defendant. There is also evidence that the Claimant has fully repaid the facility and been given a letter of non-indebtedness, Exhibit 18. The Defendant acknowledged its obligation to release the Claimant’s title document. Facts admitted require no further proof. See Section 123 of the Evidence Act, 2011 and the case of Atanda v. Iliasu [2012] LPELR-19662[SC]. There is equally unchallenged evidence that the Claimant made repeated demand for his title document, see paragraphs 40-45, 53-57 of the statement of facts and Exhibits 16, 17, 20, 24, 25, 26 and 27. In the circumstance I find this claim proved.

 

54.      Relief six seeks an order of the Honourable Court directing the Defendant to pay the sum of N100, 000,000.00 [one hundred million naira] as damages for failure and or refusal to release Claimant’s Deed of Assignment dated the 26th day of January 2010 registered at the Lands Registry in the office at Alausa, Ikeja as Number 37 at Page 37 in Volume 2261 used as security for the Home Loan Construction [Staff] facility despite the full repayment of the loan. The facts in support of this claim are paragraphs 40-45, 53-57 of the statement of facts and Exhibits 16, 17, 20, 24, 25, 26 and 27. The Defendant’s response is in paragraphs 10[a] – [c] and 12[b] – [e] and [m] of the statement of defence. While acknowledging the delay in releasing the title document, the Defendant claimed it was occasioned by the need to liaise properly with its relevant departments for account reconciliation relating to advances made to the Claimant. This fact is contradicted by the Defendant’s own letter dated 22nd February 2018, Exhibit 18 captioned “LETTER OF NON-INDEBTEDNESS”. In paragraph 1 of Exhibit 18 the Defendant wrote:

 

“We write to advise that management has approved your retirement with effect from February 14, 2018. Furthermore, we confirm that you are not indebted to the Bank.”

 

This shows that as at 22nd February 2018, the Defendant was aware that the Claimant was not indebted to it. The averment in paragraph 12[c] of its amended statement of defence is therefore an afterthought to cover up its lapses.

 

55.       General damages are within the discretion of the Court to grant and is awarded to assuage a loss caused by the act of the adversary. See Dauda v. Lagos Building Investment Co. Ltd. & Ors. [2010] LPELR-4024[CA] pages 19-20, where Galinje, J.C.A. [as he then was], posited that:

 

“General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law.”

           

Commenting on the measure of general damages, the Court of Appeal, in Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] 54, observed that:

 

“Now, the measure of general damages in terms of money is a matter for the Judge. It is always necessary for the Judge to make his own assessment of the quantum of such damage. General damages unlike special damages are generally incapable of substantially exact calculation.”

 

However, in C.C.C. Construction Nigeria Limited v. Richard Okeke [2016] LPELR-40928[CA] page 16, Pemu, J.C.A., relying on Rookes v. Bernard 1964 A.C. 1129, posited that:

 

“Moreover, it is very well settled that in cases where damages are at large, the jury [or the Judge if the award is left to him] can take into account the motive and conduct of the defendant where they aggravate the injury done to the Plaintiff. These may be malevolence or spite or the manner of committing the wrong, may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing appropriate compensation.”

 

Flowing from the above, I have looked at the course of events between the parties and I find that there was no reason for the Defendant to continue to hold on to the Claimant’s title document from 22nd February 2018 to 10th December 2018 when it claimed it made efforts to deliver it to him and thereby subjecting the Claimant to hire the services of a Solicitor. In the circumstance, I hold that the Claimant is entitled to damages for the Defendant’s failure and or refusal to release his Deed of Assignment in the sum of N500, 000.

 

56.      Relief 7 is for an order of the Honourable Court directing the Defendant to pay the sum of N245, 373.88 [two hundred and forty five thousand three hundred and seventy three naira eighty eight kobo] being two months ex gratia payment and the sum of $26, 000.00 USD [twenty-six thousand United State Dollars] being the current market value of a golden wristwatch which Claimant is entitled to for 35 years long service award. The facts in support of this claim are contained in paragraphs 47 to 53 and 60[c] of the statement of facts and paragraphs 3, 10 and 11 of the reply to amended statement of defence which are reproduced in paragraphs 46 – 52 and 62[c] of Claimant’s statement on oath and paragraphs 5, 12 and 13 of Claimant’s additional statement on oath and Exhibits 21 to 27. A summary of the Claimant’s evidence is that the Defendant has a policy for rewarding its employees who serve for a certain number of years with gifts and two months ex gratia payment. The Claimant retired after 35 years of meritorious service but was only paid reparation allowance. The Claimant protested but in his email of 13th March 2018, Mr. Adegbenro Adebayo Adedoja wrote: “In line with the Bank’s policy, upon attainment of 35 years in service what you are entitled to is reparation allowance.” The Claimant rejoined in his email of 14th March 2018 wondering when the policy for long service award changed and noted that reparation allowance had always been there and is different from long service award. Mr. Adegbenro Adebayo Adedoja reply email reads:

 

“We did not in our response state that the Bank’s policy was changed. The policy has always been to pay only reparation allowance to retiring staff upon attainment of 35 years in service.”

 

The Claimant claims that having worked for 35 years with the Defendant, he is entitled to a golden wristwatch, and two months ex-gratia payment. The current market value of an average golden wristwatch was put at US$26,000.00.

 

57.      The Defendant denied this claim in paragraph 11 of the amended statement of defence which was reproduced in paragraphs 17 to 20 of the Defendant’s witness’ statement on oath. The Defendant’s defence is a re-statement of Mr. Adegbenro Adebayo Adedoja’s email communication with the Claimant and added that:

 

“As at the time the Claimant left the Bank, the Bank’s policy for long service award gifts had been reviewed from gift items to vouchers.”

 

The Defendant went on to list the long service award for 10, 15, 20 and 25 years which included payment of two months basic salary in addition to the gifts. The Defendant, however, did not indicate what happens to awardees of 30 and 35 years or when the policy changed. See paragraph 17 of Defendant’s witness’ statement on oath.

 

Counsel for the Defendant submitted that from Exhibit 21, the Claimant has not proved his entitlement to two months ex gratia and golden wristwatch as reward for 35 years long service. The case of Napoleon Orianzi v. A. G. Rivers State & Ors. [supra] was cited in support. Referring to Article 8.12.2 of Exhibit 34, learned counsel submitted that its provision tallies with the evidence of Defendant’s witness in paragraphs 18, 19 and 20 of his statement on oath and makes Defendant’s narrative more believable. The Court was urged to presume that if the Claimant had the document setting out the 35 years long service award but did not produce it, it would have been unfavourable to him if produced and relied on Section 167[d] of the Evidence Act, 2011.

 

58.      In his response, learned counsel for the Claimant submitted that the Defendant having entered into a contract with the Claimant is bound to perform it. He explained that the long service award was instituted by the Defendant to reward loyalty and this policy forms part of the contract between the Defendant and Claimant. Claimant having performed his part of the contract and worked for 35 years deserves a corresponding performance by the Defendant. He relied on Oak Pensions Ltd & Ors. v. Olayinka [supra]. He referred to paragraph 11[a] of the amended statement of defence and noted that the Defendant deliberately excluded the 30th and 35th years long service awards and did not prove its assertion that the policy has been reviewed. He submitted that the law is that he who asserts must prove and referred to Section 131 Evidence Act, 2011 and Akinbade & Anor. v. Babatunde & Ors. [supra]. He argued that in any event if the policy was reviewed after Claimant’s exit, the new policy should not apply to him.  

 

59.      I observed that while the Defendant in paragraph 11[a] of its amended statement of defence and paragraph 17 of its witness’ statement on oath claimed that its policy for long service award gifts had been reviewed from gift items to vouchers, it stopped at 25 years and did not say what happens to 30 years or as contended by Claimant’s counsel, 35 years. I have carefully read the relevant pleadings and depositions of witnesses and the supporting Exhibits and the following facts are established:

 

a.      The Defendant has a policy of rewarding staff who serve it for a reasonably long period of time which has been described as long service award. This award is earned after ten years and thereafter every five years. The award consists of two months ex gratia and a gift.

 

b.      The Claimant was a beneficiary of the award for 10, 15, 20, 25 and 30 years and was paid two months ex gratia and accompanying gift. The 30 years award was in August 2013.

 

c.      There is no evidence that the long service award gifts had been reviewed from gift items to vouchers. It is the Defendant speaking from the two sides of its mouth. See Exhibit 23.

d.      The long service award though made part of staff reward system is not contained in the Employee Handbook or any written policy but is advised on an-earned basis.

 

The Claimant contends that by the policy he is entitled to 35 years long service award which consists of two months ex gratia payment and a Rolex golden wristwatch and after retirement demanded for his gifts but was told that all he is entitled to is reparation allowance. The Defendant relied on Article 8.12.2 of Exhibit 34. Clearly this provision does not deal with long service award. It deals with reparation which is defined in Black’s Law Dictionary, 7th Edition page 1301 as “the act of making amends for a wrong”, “compensation for an injury or wrong”.

 

60.      While I have reason to believe that the policy exists for 35 years based on the consistency of the award from 10 years to 30 years, the law is that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. See section 136[1] of the Evidence Act, 2011, Socio-Political Research Development v. Ministry of Federal Capital Territory & Ors. [2019] 1 NWLR [pt.1653] 313 at 342 and Ogunniyi v. Hon. Minister of FCT & Anor. [2014] LPELR-23164[CA] 33. In Socio-Political Research Development v. Ministry of Federal Capital Territory & Ors. [supra], Ariwoola, J.S.C., remarked that:

 

“… whenever issues are joined by parties in pleadings, evidence is required to prove these averments. And it is the person or party whom the burden of establishing that issue lies that must adduce satisfactory evidence. It follows therefore that when there is no such evidence, the issue must necessarily be resolved against the party.”

 

Also, it is the law that a person alleging the existence of a custom has the burden to prove its existence. See Sections 16[2] and 18[2] of the Evidence Act, 2011. Having joined issues on the 35 years long service award, the onus of proving its existence rested on the Claimant, which burden he did not discharge. As argued by Defendant’s counsel, there is no documentary evidence in proof of this claim and the Claimant did not call any other witness who benefited from this policy to prove that it extends to 35 years. This is so notwithstanding the contradictory evidence of the Defendant. Until the Claimant discharges the burden on him, it will not be necessary to consider the evidence of the Defendant. See the case of The United Nigeria Insurance Co. Ltd. v. Universal Commercial and Industrial Co. Ltd. [supra] at pages 29-30.

 

It is the duty of the Court to render to everyone according to his proven claim. The Court cannot give to a party a relief which he has not proved. See In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] 24. The Claimant has not proved this claim and it consequently fails.

 

61.      The next relief is for an order of the Honourable Court awarding the sum of N5, 000,000.00 [five million naira] as cost of the suit. Learned counsel for the Defendant had argued that where the claims fail, no cost can be awarded against the Defendant; but where the Court decides to award cost it should be to indemnify the successful party, not as punishment to the party who pays it or bonus to the party who receives it and relied on A.G. Kwara & Anor. v. Chief Joshua Alao & Anor. [supra]. It was also argued that even where the Claimant succeeds, in awarding cost the Court will look at the cost incurred in prosecuting the action and award cost judiciously and judicially. Reliance was placed on Theobros Auto Link Limited v. B.I.A.E. Co Limited [supra]. Learned counsel for the Claimant did not urge anything on the Court on cost.

 

Generally, cost follows events and a successful party is entitled to his cost. By Order 55 rule 1 of the Rules of this Court, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. Costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate his losses. The main aim of cost is to indemnify the successful party for his out of pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. See Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] 43.   

 

Some of the factors to consider in awarding cost are filing fees paid, duration of the case, number of witnesses called by the party in victory, the vexatious nature of the action, cost of legal representation, monetary value at the time of incurring the expenses et cetera. See Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] 34-35.

 

From the Court’s record, the sum of N53, 720 was spent as filing fees and Claimant was present in Court and represented by counsel 6 times. In the circumstance, cost of N300, 000 is awarded in favour of the Claimant against the Defendant.

 

62.       In the final analysis, this case succeeds in part. Judgment is entered in favour of the Claimant against the Defendant as follows:

a.      It is hereby declared that the Defendant was negligent in the non-payment of compensations due to the Claimant for injuries suffered as a result of the gunshot wounds he sustained in the armed robbery attack on the Defendant’s Idimu Branch as provided in the Group Personal Accident Insurance Scheme.

 

b.      It is hereby ordered that the Defendant shall pay to the Claimant the sum of N2, 400,000 [two million four hundred thousand naira] being the sum of N20, 000 per month approved for the Claimant’s driver for one year.

 

c.      It is hereby ordered that the Defendant shall pay to the Claimant the sum of N10, 000,000 [ten million naira] being damages for its abysmal handling of the compensation due to the Claimant from the armed robbery attack on the Bank on 14th December 2006.

 

d.      It is hereby ordered that the Defendant shall return forthwith and handover to the Claimant his Deed of Assignment no. 37/37/2261 dated 26th January 2010 and to immediately file at the relevant Lands Registry a release of the Legal Mortgage on the property.

 

e.      It is hereby ordered that the Defendant shall pay to the Claimant the sum of N500, 000 [five hundred thousand naira] as damages for failure and or refusal to release Claimant’s Deed of Assignment no. 37/37/2261 dated 26th January 2010 used as security for the Home Loan Construction [Staff] facility in spite of the full repayment of the loan.

    

f.        Reliefs 3 and 7 fail and are hereby dismissed.

 

g.      Cost of N300, 000 is awarded in favour of the Claimant against the Defendant.

 

h.      This judgment shall be implemented within 30 days from today, failing which the monetary awards shall bear interest at the rate of 10% per annum from 4th April 2020.

 

Judgement is entered accordingly.

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

5/3/2020

 

Attendance: Claimant present, Defendant absent.

 

Appearances:

 

Lawrence Austine-Coleman Esq. with Deborah Wuraola Ogunleye for the Claimant

 

Chief Adewale Adeniji with Ugochinyere Chigbo and Temilade Eyimade for the Defendant