IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                        

HON. JUSTICE M. N. ESOWE

 

DATE: FEBRUARY 16, 2023                               

\SUIT NO.: NICN/LA/209/2021

 

BETWEEN

MRS SUSSANNAH ABIOLA OREKOYA                                   CLAIMANT

(Suing as the lawful attorney of MR OLUJIMI OREKOYA)                                                                                         

AND

 

UNION BANK OF NIGERIA PLC                                            DEFENDANT

 

REPRESENTATION

Chief Paul Omoijiade, Esq with Stephanie Ukonga-Ojeikere, Esq for the Claimant.

M. S. Umar, Esq with A. P. Tuesday, Esq for the Defendant.

 

JUDGMENT

INTRODUCTION

1.      The Claimant is a former employee of the Defendant who was employed by the Defendant on the 20.05.1981 and rose to the position of Officer II-Manager before retiring on the 27.08.2008. As a retired employee of the Defendant, the Claimant is entitled to gratuity and certain pension benefit. However, the Claimant states that the gratuity and pension due to him has not been completely paid by the Defendant since his retirement and as such, there has been a shortfall of gratuity and pension due to him.

 

2.      It is on the basis of the above that the Claimant is seeking the following as per his Complaint and Statement of Facts filed on 02.07.2021:

 

a.      A DECLARATION that the defendant is in arrears of the Claimant’s gratuity and pension;

b.      A DECLARATION that the payment of the Claimant’s gratuity on the basis of his basic salary, housing, transport and lunch subsidy on N1,503,899.00 instead of his total emolument of N2,300,777.65 as provided in the Defendant Pension Deed of variation is unlawful/wrongful;

c.      AN ORDER for the payment of N2,191,416.29 which represents shortfall in his gratuity entitlement;

d.      AN ORDER for the payment of shortfall in his monthly pension in the sum of N57,586.21 from September, 2008 till liquidation.

e.      AN ORDER for the payment of interest at the rate of 25% on the gratuity short payment under (b) above from 28th August, 2008 till liquidation.

f.        AN ORDER that cost of this suit in the sum of N1,000,000.00 (One Million Naira) to be paid to the Claimant;

g.      AN ORDER for the payment of the post judgment interest at 25% per annum;

 

3.      Hearing in this suit commenced on 03.03.2022 with the claimant testifying as CW1. CW1 adopted her witness statement on oath as her evidence is chief. Through her, eleven documents were tendered and admitted in evidence and marked as Exhibits C1 to C11 respectively. CW1 was duly cross-examined after which the Claimant closed his case.

 

4.      On behalf of the Defendant, one Francis Idiaghe testified as DW1. He adopted his written statement on oath as his evidence in chief. Through him, one document was tendered and admitted in evidence and marked as Exhibit D1. DW1 was duly cross-examined after which the Defendant closed its case. The matter was then adjourned to enable parties file and exchange their respective final written addresses which were adopted on 24.10.2022.

 

5.      DEFENDANT’S FINAL WRITTEN ADDRESS

6.      The Defendant in its Final Written Address filed on 24.06.2022 formulated three (3) issues for determination, namely:

 

7.      Having regards to the testimony of CW1 and the documents tendered by CW1, whether Exhibits C2, C6, C7, C8, C9 and C10 and the testimony of CW1 amounts to hearsay and offendsSection 37 of the Evidence Act?

 

8.      Whether the subject suit which was commenced 13 years after the cause of action arose is statute-barred, robbing this Honourable Court of the jurisdiction to entertain same?

 

9.      Having regard to the evidence led in this case, whether the claimant has established sufficient evidence for the grant of the relief sought in this suit?

 

10. On issue one, Learned Defence Counsel contended that the provisions of the Evidence Act is not just important but sacrosanct to trials in our judicial system. Counsel submitted that the entirety of the CW1’s testimony as contained in the Statement on Oath dated 2nd July 2022 and Additional Statement dated 3rd March 2022, amounts to hearsay and as such should be discountenanced by the Honourable Court. The Learned Counsel relied on the provisions of Sections 37 and 38 of the Evidence Act and plethora of cases such as RS. Veronica Olojede & Anor v Mr Adeola A. B. Olaleye & Anor(2012) LPELR-9845(CA), and Utteh v The State (1992) 2 NWLR (Pt. 233) 257 which buttressed the fact that evidence given by a witness concerning a statement made to him by a person who is not himself called as a witness is hearsay and therefore inadmissible.

 

11. Counsel went on to state that the entirety of CW1’s  testimony also amounts to hearsay as CW1 who was not a party to the contractual relationship between the Claimant and the Defendant cannot testify to the terms of the contract governing the relationship between the parties. Counsel stated that the entirety of CW1’s testimony was based on information and documents received from the Claimant and third parties, which by Sections 37 and 38 of the Evidence Act amounts to hearsay. CW1 was not in the picture when the material facts of the case crystallized.Exhibits C2, C5, C7, C8, C9 and C10offend Section 37(b) ofthe Evidence Act as the said exhibits amount to “documentary hearsay”- Maku v State (2021) LPELR-56324 (CA), Buhari v Obasanjo (2005) 13 NWLR (pt. 941) 1 at 317.Counsel then urged the Honourable Court on the basis of the above submissions and on the strength of the Sections 37 and 38 of the Evidence Act, 2011 and authorities cited above to discountenance CW1’s testimony and Exhibits C2, C6, C7, C8, C9 and C10 as they offend the provisions of the Evidence Act same amounting to hearsay.

 

12.Learned Defence Counsel on issue two submitted that the Claimant’s suit as constituted is statute barred and is liable to be dismissed. Counsel relied on the Court of Appeal case in Arum v Egbo [2016] LPELR-41542 where it was reinforced that in determining whether an action is statute barred, regard must first be had to the cause of action, and secondly, one must go further to look at the law which prescribes the period within which an action may be brought upon certain claims, or within which certain rights may be enforced. See also Biyi Co. Ltd v. Chief Registrar, High Court of FCT &Anor (2021) LPELR-55872(CA).

 

13. It is on this basis that the Learned Defence Counsel submitted that it can be deduced from the Claimant’s statement of Facts that the cause of action upon which the suit is based, accrued in August 2008, when the Claimant left the employment of the defendant and was entitled to the receipt of his pension gratuity benefits.Counsel then submitted that the effect of a plea of limitation law voids an action and denies the Court the jurisdiction to entertain it. - Nwogu v Nwanekezi (2016) LPELR-41767 (CA). As such, the Honourable court is barred from entertaining such a matter- Osun State Government v Dalami Nigeria Ltd (2007) All FWLR (pt. 365), page 439 at 467, paras A-B, Egbe v Adefarasin (1985) 1 NWLR (Pt. 3) pg. 549 at 568 Paras G-H.

 

14. Learned Defence Counsel on issue three submitted that the Claimant has not led sufficient evidence in support of his claims for the grant of the reliefs sought. Counsel stated that the Court is expected to review and evaluate the facts and evidence presented by the parties in determining the respective rights and obligations of the parties in the case- Akerele v. Ajose- Adeogun & Ors (2018) LPELR-43763 (CA).Counsel contended that the Claimant failed to lead any evidence either in oral or documentary form in support of the first head of his claim that the payment of gratuity should be on the basis of total emolument(comprising of basic salary, housing allowance, transport, lunch, leave, entertainment, Christmas bonus, utility allowance, beverage, special, furniture) and not 275% of basic salary, housing allowance, transportation and lunch subsidy as was calculated and paid to the Claimant by the Defendant.

 

15. Counsel stated that parties to a contract are bound by the terms of their contract- Ecobank v Arogundade & Anor (2019) LPELR- 47314(CA). Paragraph 15 of the Trust Deed (Exhibit C4),vests power in the Board of Directors of the Defendant to interpret the trust deed which they did giving rise to the payment made to the Claimant. Counsel therefore contended that the Claimant has willfully and deliberately chosen to misinterpret what constitutes “total emolument” in the face of clear and unambiguous interpretation by the directors, pursuant to their powers under the Trust Deed and as such, the Claimant has not only failed to lead evidence in support of his claim for shortfall of gratuity, the Claimant is inviting the Court to make positive findings on the tale of a third party who was not a party to the contractual relationship between the parties.

 

16. On the Claimant’s claim for pension, the Learned Defence Counsel submitted that such claim is unfounded. Counsel stated that by virtue of Sections 1, 8, 9, 11 and 12 of the Pension Reform Act, 2004, the Contributory Pension Scheme became mandatory for all employers in the private sector who have more than 5 employees, including the Defendant herein. DW1 testified that prior to the enactment of the Pension Reform Act, the Defendant operated an in-house pension and gratuity scheme, which was regulated by the Trust Deed. DW1 further testified that the in-house pension scheme was overtaken by the provisions of Section 1 of the Pension Reform Act. While Section 8 of the Pension Reform Act exempts certain categories of persons from the mandatory requirement, the Claimant does not fall within this category as the Pension Reform Act commenced on the 25.06.2004 and the Claimant was not due for retirement within 3 years from the said commencement date. DW1 further testified that the Claimant was erroneously placed under the in-house scheme and in compliance with the provision of the Pension Reform Act, the Defendant on 08.02.2013 transferred the Claimant’s Pension to the Claimant’s pension account domiciled with Crusaders Sterling Pension Limited which was further corroborated by CW1 when CW1 testified that the Claimant has been receiving his Pension from Crusaders Pension Limited.

 

17. Counsel further submitted that where a law or statute lays down a procedure for doing a thing, no other method must be adopted – Onjeh & Anor v Marks & Ors. (2015) LPELR-25974 (CA).  The Defendant has no operation or input on the parameters used by the Crusaders in fixing the Claimant’s monthly pension at N17,508.74. It was further stated that the Claimant has not led evidence to show that the sum calculated and transferred to the Claimant’s retirement savings account was incomplete or in contravention of the agreed parameters for computation. The Claimant only contended that there has been a deduction in the monthly pension received by the Claimant. Hence, Learned Defence Counsel submitted that the Claimant has failed to establish how the Defendant is liable for the shortfall in the Claimant’s pension entitlement. From the foregoing, Learned Defence Counsel then urged the Court to dismiss the Claimant’s claim.

 

18. CLAIMANT’S FINAL WRITTEN ADDRESS

19. The Claimant in response to the Defendant’s final written address filed his final written address on 07.09.2022 wherein he raised two preliminary issues and two issues for determination namely:

 

20. PRELIMINARY ISSUES

21. Whether Evidence of CW1 amount to Hearsay Evidence?

22.  Whether Exhibit C11- Defendant’s Staff Private & Confidential Circular No. 18/97 dated 29th October, 1997 is admissible in Evidence?

 

23.  On issue one, Learned Counsel to the Claimant submitted that the National Industrial Court is bound by the Evidence Act but can depart from it pursuant to Section 12(b) of the National Industrial Court Act 2006.- Victor Adegbuyu v. UBN Plc with Appeal No CA/IL/20/2021. The Defendant in paragraph 6.2 to 6.17 of her final written address argued that the evidence of CW1 and Exhibits C2, C6, C7, C8, C9 and C10 amounted to hearsay evidence and offends Sections 37 and 38 of the Evidence Act, 2011. However, Counsel to the Claimant stated that the submission of the Defendant is not sustainable because CW1 evidence was done under a Power of Attorney. Hence, Exhibit C1 and her evidence cannot amount to hearsay. Counsel cited the case of Mrs. Olugbenga- AmaoOlubukola v Heritage Bank Plc with Suit No. NICN/LA/408/2019. Counsel further stated that the evidence in this case is largely documentary and the Defendant admits that the Claimant was its employee and was placed on recovery suspension without pay. The Defendant does not deny that the Claimant’s gross salary per annum is N12,048,750, and it does not deny receipt of letters from the Claimant’s Solicitors. Facts admitted require no further proof- Section 123 of the Evidence Act, 2011.

 

24. Counsel to the Claimant further submitted that a donee of a power of Attorney who sues on behalf of the donor makes himself an agent of the donor and the action is as good as a case instituted by the donor personally.- Melvin v. Five Stars Industries Limited (2002) LPELR-1858 (SC) 15-16, 34. CW1 gave evidence as donee under a power of attorney and tendered Exhibits C2, C6, C7, C8, C9 and C10 which emanated from the Defendant and the Defendant did not deny issuance of the documents. Counsel further stated that the Defendant in paragraph 6.4 of her final written Address submitted that the Gratuity Rules, 1996 was never tendered and as such, the submission of the Defendant was borne out of mischief calculated to mislead the Court because the Gratuity Rules, 1996 is embedded in the Trust Deed, 1996( Exhibit C4) at pages 14-16.  Counsel then urged the Court to hold that the Claimant’s testimony as contained in the Statement of Oath dated 2nd July, 2022 as well as the Additional Statement on Oath dated 3rd of March, 2022 does not amount to hearsay and that Exhibits C2, C5, C7, C8, C9, and C10 does not amount to documentary hearsay.

 

25. On issue two, Counsel to the Claimant submitted that Exhibit C11 had expired and therefore not admissible in evidence. Exhibit C11 was tendered through CW1 by the Defence Counsel and entitled: “INCENTIVE PACKAGE FOR EARLY RETIREMENT”. Counsel stated that the last paragraph of the Circular 18/97 reads: “All staffs are to note that this offer is open till 31st January, 1998” and that the Defendant in paragraph 3 of her statement of Defence admitted that the claimant was employed on 20th May, 1981 which was after the expiration of the Defendant’s circular No. 18/97 on 31st January, 1998. Counsel further stated that an expired document no longer has the force of law- Union Bank Of Nigeria Plc v. Ormane Lily Uyor Appeal No. CA/L/1355/2016. Hence, Counsel urged the Court to hold that Exhibit C11 being an expired document is inadmissible in evidence and should be expunged from the Records.

 

26. ISSUES FOR DETERMINATION.

27. Whether the present suit is statute barred

28.  Whether the Claimant is entitled to all her reliefs in this suit: (a) Payment of N2, 191, 416.25 shortfall in the Claimant’s gratuity entitlement. (b) Payment of shortfall in Claimant’s monthly pension in the sum of N57,568.21 fromSeptember, 2008 till liquidation (c) Payment of 25% interest on the gratuity short payment from 28th August, 2008 till liquidation; (d) Cost in the sum of N1 million; (e) Payment of post judgment interest,

 

29. On issue one, Counsel to the Claimant submitted that the present suit as presently constituted is not statute barred. The Defendant in paragraph 7.0 to 7.16 of her written address had submitted that the present suit is statute barred and urged the Court to dismiss same However, Counsel to the Claimant stated that the judicial authorities relied upon by the defendant had been overtaken by the Supreme Court Decision in National Revenue Mobilisation Allocation and Fiscal Communication (NRMA & FC) & 2 others v. Ajibola Johnson & 10 Ors(2019) 2 NWLR (pt. 1656) 257 where the Court held that in contracts of service, the public officers protection act does not apply. Counsel then further submitted that the decision of the court in National Revenue Mobilisation Allocation and Fiscal Communication (NRMA & FC) & 2 others v. Ajibola Johnson & 10 ors nullified the application of Section8 of the Limitation Law of LagosState to the instant suit and prayed the Court to hold same.

 

30. On issue two, Counsel to the Claimant submitted that the Defendant is in fact in arrears of N2,191,416.25 in the Claimant’s gratuity entitlement as particularly stated in his claim in paragraph 13, 14 & 15 of the Statement of Facts. Counsel further stated that the defence of the Defendant is evasive and very weak because the gratuity entitlement of employees including the Claimant was never regulated by the Defendant’s Circular 18/97 but by the Trust Deed 1996 and that the payment of gratuity in the Defendant bank is only regulated by the Trust Deed 1996. Counsel reiterated that under Cross-Examination, the Defence sole witness was shown the Circular Number 18/97 (Exhibit C11) and asked to show the court where the document provides for the regulation of pension and gratuity in the Defendant bank and he could not show the Court any provision in the Circular number 18/97 which regulates the payment of gratuity in the Defendant’s Bank.

 

31. On what constitutes total emolument, Counsel to the Claimant stated that Paragraph 20 of the 1996 Trust Deed provided that total emolument shall include Basic Salary, Lunch, Subsidy and Housing and Transport Allowances. He stated that the Claimant was paid N4,135,722 which was 300% of his basic, housing, transport  and lunch on 28th August 2008 and the Defendants wrongly restricted the heads of income for the computation of gratuity to only Basic Salary, Housing, Transport, and Lunch Subsidy as against all Allowances and Basic Salary. Counsel further stated that the words total emoluments used in Gratuity Rules, 1996 are very clear and loud and the Claimant is entitled to payment of gratuities, pursuant to Paragraph 18, page 15 of the Gratuity Rules and not under the general provisions under clause 20 of the trust Deed because where there is general provision guiding a subject matter, the specific provision will prevail.- Martin Shroder and Co v. Major and Company (Nigeria) Ltd (1989) LPELR-1845 (SC), Paul Unongo vAperAku&Ors (1983) LPELR-3422 (SC). Counsel then prayed the court to hold that total emolument as used in Paragraph 20 of the 1996 Trust deed is made up of the Claimant’s basic salaries and allowances.

 

32.Counsel to the Claimant further submitted that the agreement dated 12th August, 2015 between the Defendant and the Unions (Exhibit D) on what constitute total emolument conflicts with Section 20 of the 1996 Trust Deed and therefore null and void to the extent of its inconsistency. The agreement in question was reached after the exit of the Claimant from the Defendant employment and the agreement did not seek to amend the Trust Deed, 1996.The Defendant in paragraph 11 of her sole witness statement on oath dated 13th May 2022 stated that she has not paid gratuity at any time whatsoever beyond the parameters stated in paragraph 10 of his deposition. i.e housing, transport and lunch allowances of the claimant. Counsel stated that the argument of the Defendant was not sustainable but calculated to mislead this Honourable Court and subvert the course of Justice and the purported modes and parameters cannot subvert the provision of a written contract of employment as expressed in the Defendant Trust Deed 1996 and that Paragraph 20 of the 1996 Variation Trust Deed has been pronounced upon to mean that computation of total emolument means basic salary and all allowances.- Okeke& 2 Others v. Union Bank Of Nigeria Plc(Supra), Miss Ormane Lily Uyor v. Union Bank of Nigeria Plc (Supra)

 

33.The Defendant in paragraph 8.9 of her Final Written Address had submitted that the directors of the Defendant in exercise of the powers conferred on her issued Private and ConfidentialCircular No. 18/97 (Exhibit C11) and defined total emolument to include salary, housing allowance, Transport allowance, lunch and subsidy. Counsel to the Claimant contended that Exhibit C11 expired on January 31st 1998 before the employment of the Claimant and that the said Exhibit C11 was issued by the Deputy General Manager (Human Resources) and not Board Resolution signed by the Company’s Secretary or Director and the Defendant’s sole witness had already told the Court under cross examination that the Defendant cannot unilaterally amend the Trust Deed of 1996. As such, the Defendant’s Circular 18/97 which had already expired is a legal nullity and can no longer be relied upon and any question directed to CW1 under Cross Examination amounts to nothing because you cannot put something on nothing and expect it to stand.-Macfoy v. UAC (Supra). Counsel further stated that the argument in paragraph 6.10 of the Defendant’s Final Written Address that the CW1 admitted under cross examination that she was only seeing Exhibit C11 for the first time in the witness box cannot adversely affect her testimony because the circular was not in existence when he was employed and that such testimony of lack of knowledge of certain facts by the Donee of a power of attorney cannot adversely affect her evidence.- MrsOlugbenga-AmooOlubukola v. Heritage Bank Plc (Supra)

 

34. On the Shortfall in Pension Payment, Counsel to the Claimant submitted that the Claimant is entitled to the shortfall in his Pension entitlement in the sum of N57, 586 from September 2008 till liquidation. Counsel stated that the Defendant in paragraph 8.4 and 8.25 of her Final Address referred to Sections 1, 9, 11 and 12 of the Pension Reform Act 2004 which inter alia provides for mandatory membership of the Contributory Pension Scheme (CPC) for any institution with 5 or more employees in her employment and that the Defendant failed to draw attention to Section 39 of the Repealed Pension Reform Act 2004, now Section 50 of the Pension Reform Act 2014 which recognized the existing Pension Scheme in the private sector including the Defendant Bank as represented by the 1996 Trust Deed. Counsel further submitted that there was no evidence before the Court that the Defendant has exited the in-house pension scheme. Counsel cited the following cases to support his claim; Ekeuzor v. Union Bank of Nigeria Plc (2014) 42 N.L.LR (pt 133) 758 NIC, Tobias NnamdiEzeh v. Union Bank of Nigeria Plc (2015) 61 N.L.L.R (pt. 212) 120 MIC Pp. 155-156, paras F-C, Pp. 156-157, Paras G-A, Adedotun-Adekoyav.UBN (2013) 355 N.L.L.R (Pt. 103) 139 NIC Pp 176-177, paras D-G

 

35. Counsel to the Claimant further submitted that the Claimant is entitled to cost of this suit as well as pre-judgment interest on the withheld gratuity and shortfall in his pension and prayed the Honourable Court to grant all the Claimant’s reliefs in this suit and discountenance the defences of the Defendant.-Aluminium Manufacturing Co. Nig. Ltd v. Volkswagen Nig. Ltd (2010) N.L.L pt. 60 pages 378-598 at page 461, para B-D, BabajideOguntowo v. Ecobank Nigeria Plc. Suit No. NICN/LA/478/2012, John Holt Plc v. Martin Nwabuwa Appeal No. CA/L/875/2017

 

 

36. DEFENDANT’S REPLY ON POINTS OF LAW TO CLAIMANT’S FINAL ADDRESS

37. The Defendant in response to the Claimant’s Final Address filed his reply on points of law on 21.10.2022 wherein he responded to seven submissions/contentions made by the Claimant in his final address. The first submission/contention made by the Claimant, Counsel to the Defendant reiterated that the provision of the Evidence Act applies in and to all judicial proceedings in all Courts in Nigeria. Section 37 and 38 of the Evidence Act- Mainstreet Bank Registrars Ltd vUkandu (2017) LPELR-50172 (CA), Skye Bank v. Iwu (2017) LPELR-42595 (SC), Securities and Exchange Commission vAbiloUboboso, Suit No: CA/A/388/2013. Hence, Counsel submitted that this Court is bound by the Rules of evidence and cannot arbitrarily pick portions of the Evidence Act to adopt in its proceedings, as urged by the Claimant.

 

38. In response to the second submission/contention made by the Claimant, the Learned Defence Counsel started by stating that the Claimant had erroneously relied on the decision of the Court in Olubukola v Heritage Bank Plc(supra) to argue that this court can admit evidence that offends sacrosanct provisions of the Evidence Act and that nothing in the holding of the Court supports the Claimant’s argument that hearsay evidence that do not fall under the prescribed exceptions can be admitted. There is no law or statute that supports the Claimant’s position that a document can be tendered by a person who is not the maker even though the maker of the document is alive and available to come to court. He respectfully submitted that Section 83(4)of the Evidence Act provides for the exceptions where documentary evidence will be admissible where the makers of the document do not tender it and the Claimant has failed to establish the exceptional circumstance for this provision to avail the Claimant.- Obembe v. Ekele (2020) 10 NWLR (PT.722) 677 at 693-694.

 

39. In response to the third submission/contention made by the Claimant, the Learned Defence Counsel stated that the Claimant erroneously relied on the decision of the Court in NRMAFC v Johnson &Ors (supra)and Nwobodo&Ors v NNPC &Anor (supra) in arguing that the Supreme Court has nullified the application of statute of limitations. Counsel submitted thatthe case of NRMAFC v Johnson &Ors, totally differs from this suit and is not applicable to this instant suit. Section 8 of the Limitation Law of Lagos State was not even considered in the said suit. In Oko&Ors v. A.G. Ebonyi State (2021) LPELR-54988(SC) the Supreme Court applied the Limitation Law of Ebonyi State and held that the Claimant could not place reliance on the cases decided under the Public Officers Protection Act to exclude the application of the Limitation Law of Ebonyi State. Counsel then submitted that by Section 8 of the Limitation Law of LagosState, the subject suit having been instituted outside the six years statutory period is statute barred and urged the Court to hold same.

 

40. In response to the fourth submission/contention made by the Claimant, the Learned Defence Counsel submitted that the law is trite that the final address of Counsel cannot substitute legal evidence. - Dahiru v. State (2017) LPELR-44497 (SC), Agugua v. State (2017) LPELR-42021 (SC). Counsel further submitted that the Claimant through CW1 had testified before this Court (paragraph 4 of the CW1’s additional statement on oath) that the Handbook, Collective Agreement, Defendant’s Trust Deed and Policy Circulars regulated the Claimant’s contract of employment. The Defendant reiterated their argument that Exhibits C8 and C9 are inadmissible and further argued that contractual relationships, in this context, employment contracts are of a personal nature. Thus, this Honorable Court cannot consider the employment or disengagement letters of third parties.

 

41. In response to the fifth submission/contention made by the Claimant, the Learned Defence Counsel submitted that the Claimant had erroneously argued that the issue of what constitutes total emolument under Clause 20 of the 1996 Trust Deed has been answered in the case of Uyor v Union Bank of Nigeria Plc and C.E Okeke & 2 Ors v Union Bank ofNigeria Plc. Counsel stated that the position of the law is clear and authorities are replete on the point that the judgment of the Court must be based on legal evidence and not speculations, sentiments or the whim and caprices of the judge. As such, the Court has a duty to consider ands determine matters on the merit-Takutijesu v. State (2021) LPELR-54969 (CA), Michael v. State (2021) LPELR-54428 (CA), Abubakar&Ors v. Yar’adua&Ors (2008) LPELR-51 (SC). The Court is duty bound to make its finding and pronouncement on the strength of the evidence adduced, the fact, the law and nothing more.

 

42.Learned Defence Counsel further submitted that Exhibit C11 is not a misrepresentation of the Trust Deed as argued by the Claimant and that Exhibit C11 was issued pursuant to the powers of the Directors as contained in Exhibit C4, particularly in Paragraph 15 and 16. Counsel stated that the Claimant was not challenging the application of the Trust Deed in its entirely but  challenging the application of specific paragraphs of the Trust Deed, which sheds light on the Claimant’s misconceived shortfall of gratuity payment. A contract may be contained in more than one document and when that is the case, the Court is expected to examine all documents between the parties.- FRN vInterstella Communications Ltd &Ors (2014) LPELR-23295 (CA) and Petroleum (Special) Trust Fund v Western Consortium Ltd &Ors (2006) LPELR- 7719 (CA).

 

43. On the Claimant’s contention that a deputy general manager issued Exhibit C11 and that the said Exhibit had expired and is baseless, Learned Defence Counsel submitted that though Exhibit C11 was issued by the deputy general manager, it was done pursuant to the internal structure of the Defendant after the decision was reached by the board of directors.  Counsel went on to draw the attention of the Court to the last page of Exhibit C11 underlined GENERAL which makes specific provision for staff who seek to take advantage of the early retirement. The said clause further provides that staff who seek to take advantage of the early retirement scheme are to do so, on or before 31.01.1998 and that it was a misapprehension of the Claimant to submit that the said circular expired in 1998 because of the said clause. 

 

44. In response to the sixth submission/contention made by the Claimant, Learned Defence Counsel stated that from the fact of this case it is clear that the Defendant operated an in-house pension scheme prior to the enactment of the Pension Reform Act and that by the provisions of Sections 2 and 8 of the Pension Reform Act, 2004, now Section 3 and 5 of the Pension Reform Act 2014, the Claimant falls under the Contributory Pension Scheme.

 

45. In response to the seventh submission/contention made by the Claimant, Learned Defence Counsel submitted that the principle as stated by the Claimant is the general principles but however, the Apex Courts have stated the exception to the general rule on admissibility of unsigned documents in plethora of cases such as Peace Capital Market Ltd v Ujam (2021) LPELR-54 954 CA. Learned Defence Counsel urged this Court to make its findings and conclusion on the strength of the law, facts before it, evidence adduced and to decline the Claimant’s invitation to judicial travesty of speculative justice.

 

46. RESOLUTION

47. Having regards to the circumstances of this suit, the processes filed by the respective parties herein, the evidence adduced and the submission of Learned Counsel on both sides, this Court distils the issues below for determination, namely:

 

a)     Having regards to the facts of this case, is this suit as presently constituted statute barred; and does the evidence of CW1 amount to hearsay.

b)     Has the Claimant proved her case to entitle her to judgment.

 

48. The position of our law is that civil cases are decided on the preponderance of evidence or the balance of probabilities. See Section 134 of the Evidence Act, 2011, Ibezim v Elebeke&Ors [2022] 4 NWLR [Pt. 1819] 1 at 41. Learned Counsel to the Defendant has extensively argued that this suit is statute barred and that the evidence both written (oral) and documentary of CW1 amounts to hearsay. Learned Claimant’s Counsel on the other hand refutes and contends that following the decision in National Revenue Mobilization Allocation and Fiscal Commission (NRMA&FC) & 2 Ors v Johnson & 10 Ors (2019) 2 NWLR (Pt. 1656) 257, Nwobodo& 13 Ors v NNPC &Anor (Suit No.: NICN/LA/329/2019, unreported, judgment delivered on 20.07.2020), the applicability of states limitation laws to contract of service were of no effect. That given Exhibit C1, the Power of Attorney, the evidence of CW1 cannot be said to be hearsay.

 

49. An action is generally said to be statute barred when it is instituted after the expiration of the prescribed period, that is, the period laid down by the limitation law has elapsed. The rationale behind this, is that there are certain legal rights which enforcement through an action are not of a perpetual nature, as they are generally limited by statute. So any matter instituted after such set out period in the limitation law is non-justiciable. See Garba v APC (2020) 2 NWLR (Pt. 1708) 345, Wali v APC (2020) 16 NWLR (Pt. 1749) 82. The issue of whether an action is statute barred is one that bothers on jurisdiction, which requires the Court to look into it, as no Court has jurisdiction to entertain a suit that is statute barred.

 

50. To determine whether an action is statute barred, the Court is required to examine the originating processes, in this case, the General Form of Complaint and the Claimant’s Statement of Facts, alleging when the wrong was committed by the Defendant vis-à-vis when the action was instituted. That is, examine when the cause of action accrued, and situate with that when the Complaint was filed in Court. If the date of filing is beyond that permitted by the statute, then the action is statute-barred. See Nweke v UnizikAwka (2017) 18 NWLR (Pt. 1598) 454, Ofongo v APC (2022) 4 NWLR (Pt. 1821) 543.

 

51. Paragraphs 11 and 15 of the Claimant’s Statement of Facts is worthy of interest as regards the date(s) the Claimant’s cause of action accrued; paragraphs 11 and 15 state: “11. The Claimant avers that upon his retirement on the 28th August, 2008, by the Defendant, he was paid gratuity of N4,135,722.25 computed on the basis of 275% of his basic, housing, transport and lunch subsidy totaling N1,503,899.00 as against total emolument of N2,300,777.65 provided in the gratuity Rules (1996) paragraph 18, page 15 and annexure to the Defendant’s Trust Deed of variation which should have resulted in the payment of N6,327,138.54 gratuity… 15. The Claimant avers that in 2015, the Defendant computed his accrued rights without availing him the basis of the computation and reduced his monthly pension from N75,094.95 to N17,508.74 per month which resulted into a shortfall of N57,586.21.”

 

52. The Claimant’s suit was filed on 02.07.2021, there is no doubt that the Claimant’s action is founded on simple contract, it is the alleged breach of this contract as regards the payment fully of the Claimant’s gratuity and pension that the Claimant is seeking remedies from this Court. Typically, a cause of action of this nature is such that this Court is constitutionally conferred jurisdiction on. See Section 254C(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides:

 

1.      Notwithstanding the provisions of Section 251, 252, 271 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –…

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

 

53. It is on record that the Defendant does not deny that the Claimant was employed and worked as its staff. It is also not in contention that the Claimant retired and was paid certain amount as gratuity and from his retirement was paid the sum of N75,094.95 as pension monthly until sometimes in February 2015. Section 8(1)(a) of the Limitation Law of Lagos State provides that no action founded on simple contract shall be brought after the expiration of six (6) years from the date the cause of action accrued. In Mobil Oil (Nig) Plc v Malumfashi (1995) 7 NWLR (Pt. 406) 246, it was held inter alia: “a cause of action accrues when the cause of action becomes so complete so that the aggrieved party can begin and maintain his action…” See also Dantata v Mohammed (2000) 7 NWLR (Pt. 644) 176, Yare v NSWIC (2013) 11 NWLR (Pt. 1367) 173.

 

54. The issue then is what are the facts or combination of facts that the Claimant in the instant suit must adduce evidence on to entitle him to the grant of his reliefs? Although, I have said it earlier, for emphasis, the Claimant alleges that the Defendant upon his retirement on 28.08.2008 did not pay him his gratuity entitlement completely; also that the Defendant in February 2015 unilaterally reduced his monthly pension from N75,094.95 to N17,508.74 creating a shortfall of N57,586.21. It is my considered view that the Claimant’s right to maintain an action with regards these shortfalls arose in the years 2008 and 2015 respectively.

 

55. However, the issue arises whether or not the alleged shortfalls are of such a continuing nature that sustains the Claimant’s cause of action or are they such that are a product of fraud on the part of the Defendant to make the applicability of limitation law non-effectual? Before proceeding to answer this poser, may I quickly touch on the issue of the decision in NRMA&FC & 2 Ors v Johnson & 10 Ors (supra), Nwobodo& 13 Ors v NNPC &Anor (supra). It is common knowledge that this Court is bound by the doctrine of stare decisis.

 

56. The doctrine is however one that is varied and ubiquitous. It simply denotes adherence to a previous decision of a Court of competent jurisdiction in a later similar case. That is, “to stand by things decided”. See Yantaba v Gov., Katsina State (2022) 1 NWLR (Pt. 1811) 259, Kanawa v INEC (2022) 1 NWLR (Pt. 1812) 393, Adeyemi v Achimu NDIC (2023) 1 NWLR (Pt. 1866) 583. The essence is to ensure consistency in the decisions of Courts and avoid conflicting decision, such that settled matters as decided earlier by Courts should persist. See APC v Umah (2021) 10 NWLR (Pt. 1785) 586, Aghedo v Adenomo (2018) 13 NWLR (Pt. 1636) 264.

 

57. The above notwithstanding, a case is an authority for what it decides. Replying on a case without relating it to the facts that induced it amounts to citing the case out of proper context. See APC v Moses (2021) 14 NWLR (Pt.1796) 278 at 311, G. It is not everything said by a Judge, who gives judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason, it is important to analyse a decision and isolate it from the ratio decidendi. What is of essence in the decision is its ratio and not every observation found therein; not what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, since the generality of the expressions, which may be found there, is not intended to be exposition of the whole law. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.

 

58. The principle on which a decision before a Court has been decided, is alone binding between the parties to it, that is, the ascertained ratio decidendi in relation to the subject matter of the decision, which alone has the force of law, and which, when it is clear what it was, is binding. Therefore, in order to understand and appreciate the binding force of a decision, it is always necessary to see what the facts in the case in which the decision was given and what was the point, which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. In other words, in determining whether an earlier decision qualifies as binding precedent, a judgment cannot be read as if it is a statute. Simply put, the law requires the judge to chisel out the reason or rationale for a particular decision, and it is this reason, which has to be followed. See APC v Moses (supra) at 312-313, B-A.

 

59. I am in agreement with the submissions of Learned Counsel to the Defendant that the case of NRM&FC v Ors v Johnson &Ors (supra)is not applicable in the instant case. While it is true that one of the principles established from the decision in the said case is the Section 2(a) of the Public Officers Protection Act does not apply to cases of contract, it is obvious in the case at hand, that the Defendant is not a public officer. Likewise the limitation period in question is not three (3) months but six (6) years. The facts and decision are clearly distinguishable from the instant case. Similarly, though the one of the issues for determination in the case of Nwobodo&Ors v NNPC &Ors (supra) bothers on pension, the objection dwelt in part on the issue of applicability of Section 2(a) of the Public Officers Protection Act.

 

60. In other words, both cases are not particularly at all fours with the instant case or such that the ratio decidendi therein are applicable to the instant case, I therefore discountenance Learned Claimant’s Counsel submissions in that regards. I so hold. There are no allegations of fraud against the Defendant in the Claimant’s pleadings to activate the application of Section 58 of the Limitation Law of Lagos State.

 

61. The Claimant’s claim is not a liquidated money demand, the debt of which the Defendant had acknowledged in writing thus reviving the cause of action or better still making the legal injury continuous. There is no evidence of a demand letter written by the Claimant to the Defendant stating its alleged indebtedness which the Defendant responded to acknowledging such indebtedness. This would have activated Section 38 of the Limitation Law of Lagos State as a defence to the issue of statute barred, but this is not the case. See NUC v Oluwo (2001) 3 NWLR (Pt. 699) 90, Ifeanyichukwu T.I.V. Ltd v O.C.B. Ltd (2015) 17 NWLR (Pt. 1487) 1. Consequent upon, I find no hesitation in holding that the instant case as presently constituted is statute barred. I so hold.

 

62. Equity aids the vigilant and not the indolent, as earlier mentioned, the Claimant’s cause of action accrued in the years 2008 and 2015 respectively; 2008 on the issue of gratuity and 2015 on the issue of pension shortfalls. The Claimant did not state when he did the computation that resulted in his observation of the shortfalls in the payment of his gratuity and pension. It behooved on the Claimant upon discovery of this shortfalls to approach the Court to protect the infringement of his rights. Having worked for the Defendant for such number of years, he is definitely entitled to payment of his actual gratuity and pension. Equity however follows the law, and the law is that when an action is statute barred it is non-justiciable. The failure of the Claimant to approach the Court timeously to seek redress meant the Claimant stood by and waived good-bye to his rights, regrettably so. I so hold.

 

63. It then means that this suit filed on 02.07.2021, was filed six (6) years and five months after the cause of action on the issue of pension arose and thirteen (13) years after the cause of action on gratuity entitlement arose. Both are well outside the specified limit for actions founded on simple contract which are required to be brought within six (6) years from the date the cause of action accrued. Thus making this suit invalid and of no utility effect. See Ebonyi State University v Ifeanyi (2016) LPELR-41051, Onuh&Anor v Ogbe (2019) LPELR-48361(CA), Adewale&Anor v A.G. Lagos State &Ors (2021) LPELR-54828(CA). This means the Claimant has lost his right of action notwithstanding that his cause of action may be valid.

 

64. The jurisdiction of this Court to hear and determine the Claimant’s claim has now been ousted. I find that Section 8(1)(a) of the Limitation Law of Lagos State applies to this case, and the Claimant by operation of law has lost his right to litigate on same. See Olagunju&Anor v PHCN Plc (2011) LPELR-2556(SC), INEC v Ogbadibo Local Government (2015) LPELR-24839(SC), Oceanwealth Services Ltd v Govt of Rivers State &Anor (2021) LPELR-56475(CA).Accordingly, this suit is hereby dismissed for want of jurisdiction. I so hold.

 

65. Learned Defence Counsel also raised the issue of the evidence of CW1 amounting to hearsay evidence given the fact that she was not part of the transaction building up to the cause of action. I am of the considered view that one of the objectives of raising a preliminary objection or preliminary issue of law challenging the jurisdiction of the Court is to render further proceedings before the Court or tribunal impossible or unnecessary; and once upheld by the Court the suit becomes inexorably liable to be struck out. See Aje Printing (Nig) Ltd v Ekiti L.G.A. (2021) (Pt.1794) at 541.

 

66. I am thus of the considered view that further consideration of other issues in this case would be unnecessary having found that this suit is statute barred thus robbing this Court of jurisdiction. In view of this, all other issues are hereby discountenanced, the issue formulated is resolved against the Claimant and this suit is accordingly dismissed. No orders as to cost.

 

67. Judgment is accordingly entered.

 

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge