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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

 

DATE:  MAY 14, 2019                                    SUIT NO: NICN/LA/588/2017

 

BETWEEN:

 

MRS. EKEOMA AJAH                                                                    - CLAIMANT     

                         

AND

 

FIDELITY BANK PLC                                                                   - DEFENDANT 

 

REPRESENTATION:

C. U Udeagbala (with her J. Igwebuike) - for the Claimant;

Victoria Agomuo (with her P. Omofuma)– for the Defendant                                                  

 

JUDGMENT

 

The Claimant who served as an Assistant Manager (Notch1) in the Risk Management Department of the Defendant Bank commenced this Suit vide a General Form of Complaint dated 30th November 2017 but filed on 4th December 2017, accompanied with the requisite frontloaded court processes, against her former employer, basically challenging the cancellation of the voluntary retirement benefit policy on the same date she served her notice of retirement to enable her benefit from the existing scheme.

 

By an Amended Statement of Facts dated and filed on 2nd February 2018, pursuant to the Court’s Order of 29th January 2018, the Claimant seeks for the following Reliefs:

a.         A Declaration that the Defendant’s failure to make any payment with respect to the Claimant’s retirement benefits and February 2017 earned salary is a breach of the Claimant’s contract of employment and all known labour laws and best practices.

 

b.         An Order directing the Defendant to pay to the Claimant the sum of N29,785,492.14 (Twenty-Nine Million, Seven Hundred and Eighty-Five Thousand, Four Hundred and Ninety-Two Naira, Fourteen Kobo), being the aggregated sum of the entitlement (inclusive of retirement benefits and gratuity) due to the Claimant.

 

 

c.         An Order directing the Defendant to pay to the Claimant interest at the rate of 20% per annum on the unpaid Claimant’s entitlement sum of N29,785,492.14 (Twenty-Nine Million, Seven Hundred and Eighty-Five Thousand, Four Hundred and Ninety-Two Naira, Fourteen Kobo).

 

d.         An Order directing the Defendant to issue to the Claimant the 15 years long service certificate due to the Claimant in accordance with the contract of service of the Defendant.

 

e.          An Order directing the Defendant to refund all interests charged on the Claimant’s account for commercial loans after the retirement date of 22 February 2017.

 

f.           An Order directing the Defendant to pay to the Claimant the sum of N20,000,000 (Twenty Million Naira) only as the general damages suffered by the Claimant as a result of the unfair treatment meted out to the Claimant by the Defendant and the losses suffered as a result of the Defendant’s refusal to pay the Claimant’s retirement entitlements.

 

Upon service of the originating court processes, the Defendant reacted with Statement of Defence with other defence processes dated 23rd February 2018 and filed on 26 February 2018, denying the Claimant’s claims and set up facts to justify the cancellation of the said retirement benefit. The Claimant responded with Reply to the Statement of Defence dated and filed on 21st March 2018 along with the Claimant’s Additional Witness Statement on Oath deposed to on the same 21st March 2018 and list and additional document to be relied on at the trial, wherein she joined issues with the Defendant on her claims.

 

At the trial proceedings of 20th June 2018, the Claimant testified for herself as sole Claimant’s Witness (CW) and adopted her two sets of Witness Statement on Oath deposed to on 2nd February 2018 and her Additional Statement on Oath sworn to on 21 March 2018, respectively. CW tendered 32 sets of documents (described in the modified Claimant’s list of documents and additional list of documents dated 30th November 2017 and 21st March 2018, respectively), all admitted in evidence and marked as ‘Exhibits CE1-CE32’.

 

 

 

 

 

 

Gleaning from the pleadings and testimony of the CW, the case of the Claimant is that the Claimant was first employed by FSB International Bank by a letter of Offer of Employment dated January 21 2002 as Executive Trainee (exh.CE1). And that she was absorbed by the Defendant Bank after its merger with her original employee (exh.CE5) and she worked diligently and was so recognized (exh.CE2-4CE6-11A-D), and she rose to the position of an Assistant Manager (Notch 1) in the Risk Management Department of the Defendant’s Bank vide letter of Promotion dated 23rd April 2012 (exh.CE10). That when she had served for over 14 years and 9 months in December 2016, she decided to retire voluntarily in order to access the terminal benefit set out in the Defendant’s Retirement Policy, which would enable her obtain the retirement benefit available for those who attained an unbroken long service of 15 years and who are below 55 years of age (Personnel Policies and Procedure Guide – PPPG (exh. CE12).

 

CW further testified that by a Notice of Retirement dated 2nd December 2016, the Claimant signified her intention to proceed on voluntary retirement in line with the condition of service (PPPG). And that the said Notice of Retirement was duly received and acknowledged by the Defendant on 23rd December 2016. And surprisingly, later on the same day (23rd December 2016) at about 8.08 pm, after the Claimant had proceeded on her approved Annual Leave (exh.CE16A), the Defendant circulated an e-mail cancelling the said policy of payment of Retirement Benefit, and made it to take effect on 15th December 2016(exh.CE16B). 

 

Claimant contends that upon serving out her notice period in the month of February 2017, she completed all exit protocols and all Departments including Internal Audit & Investigation unit, all cleared her and duly signed her Exit Clearance (exh.CE15A) and she did her Exit Interview (exh.CE15B) and surrendered her Identity Card (exh.CE15C), and was only awaiting the End of Service (EOS) Statement which would advise her terminal entitlements, of which the Defendant delayed to issue to her despite her requesting for it to enable her know her computed retirement benefits and whatever financial obligation she may owe.

 

It is the Claimant’s case that rather than issue her the EOS and pay her terminal benefits applicable to voluntary retirement based on 15 years unbroken service with the Defendant, she was rather exposed to undue frustration of her efforts to recover her entitlement, such that the Defendant even went ahead to raise spurious allegation that she had pending disciplinary issue, whereas she had been cleared of any wrong doing in the alleged transaction (exh.CE17-CE25).  

CW pointed that despite her personal efforts even in written explanations (exh. CE16) and demand letter from her Solicitors (exh.CE27), the Defendant was adamant to release her retirement benefit, prompting her instituting this suit. It is also the CW’s testimony that while this suit has been commenced and pending, and about 10months after the Claimant retired from the services of the Defendant, on 27th  December 2017, the Defendant paid her into her salary account  the sum of N1,379,644.73 and on 26 January 2018 also paid in the sum of N600,000.00, being the gratuity less commercial loans and repayments, and 15 years long service bonus, respectively, due to the Claimant (as stated in paragraph 29(a) and (c) of the Amended Statement of Facts).

 

Claimant further contends that the balance of N27, 805, 847.40 being her cash retirement benefits as Assistant Manager Notch 1 (based on the computation provided in paragraph 7.20.3(b), page 53 of the PPPG) has remained unpaid by the Defendant. CW testified and wondered why enough notice of cancellation of the Voluntary Retirement policy was not done in the same manner the Defendant did the cancellation of Gratuity Scheme in 2014, whereby a year’s notice was given on 24th December 2014 to take effect on 31st December 2015 (exh. DE4 tendered through DW under cross-examination). Claimant contends that the cancellation of the retirement policy at that point even with back-dated application is over reaching to her interest having served retirement notice earlier than the issuing of the memo cancelling the policy.

 

CW further pointed that by a letter back-dated March 14 2017, but received on December 28 2017, the Defendant had erroneously described her exit as “Resignation”, a term she considered seriously erroneous and misleading, and by a letter dated January 4 2018 (exh.CE31), quickly correct the mischievous error while clarifying that she duly exited through retirement and not resignation and that she duly completed exit clearance form which was acknowledged by the Human Resources Department of the Defendant.

 

Claimant noted that she finally exited the Defendant bank on 22nd February 2017 after serving out the notice period for her voluntary retirement. And non- payment of her deserved entitlements amounts to breach of contract and worthy of compensation. Claimant also contends that the Defendant continued to charge interest on commercial loan she took while in office, which ought not to continue after she exited the Defendant and her loan obligations deducted. CW testified that such interest charges were irregularly made without justifiable explanation and should be reversed.

 

CW was thoroughly cross-examined by the Defendant’s counsel. After being re-examined by her counsel, Claimant prayed the court to grant her reliefs and closed her case.

 

On the part of the Defendant, its defence was opened at the resumed trial proceedings of 18th July 2018. One Franklin Adaghudu (Team Leader, Workplace Ethics with the Defendant) testified for the Defendant as DW, and adopted his Witness Statement on Oath for the Defendant deposed to on 26th February 2018.  DW himself tendered 3 sets of documents (listed in the Defendant’s list of documents dated 23rd February 2018). The documents were all admitted in evidence and marked ‘Exhibits DE1-DE3’. One document was tendered through DW under cross-examination, and admitted in evidence and marked ‘Exhibit DE4’.

 

Going by the pleadings and testimony of DW, the case of the Defendant share common background but differs markedly from that of the Claimant on the applicability of the cancelled voluntary retirement benefit culminating in the alleged denial of the Claimant’s entitlements. DW testified that Claimant resigned her position with the Defendant bank effective on the 4th February, 2017 after serving Notice of Retirement on 22nd December, 2016. That on the 23rd December 2017 before the effective date of the Claimant’s resignation, the Defendant sent an email to all members of staff (Exh.DE3), cancelling retirement benefits effective from the 15th December, 2016, just as Staff Gratuity Scheme had earlier ceased on 31st December 2015 (exh.DE4). DW denied any wrongdoing on the part of the Defendant for cancelling the voluntary retirement policy, insisting that it is the prerogative of the Defendant as an employer to vary its policy without recourse to employee.

 

DW further testified that the payments made to the Claimant vide her Account while the suit had commenced (exh.DE1), represent her current entitlement under the new policy. And that the Defendant is justified to have cancelled payment of retirement benefit to employees, including the Claimant, who did not reach the minimum 15 years’ service when the new policy took effect as at 15th December 2016(exh.DE3). DW further testified that in addition to paying her entitlement under the current regime, the Defendant also duly remitted her pension contributions (exh.DE2).

 

It is the Defendant’s case that since the Claimant did not reach the required years in service (15 years of service as at December 15 2016), and not qualified to benefit from the preserved scheme available to only those who met the condition precedent of the policy which cancellation had come into full effect, the Claimant’s suit should be dismissed as lacking merit.  

 

Claimant’s counsel rigorously cross-examined DW, and the Defendant’s case was closed. Thereafter, Final Written Addresses were ordered to be filed and exchanged between both parties’ counsel.

 

COUNSEL’S SUBMISSIONS

 

Submissions by Defendant’s Counsel:

 

Learned Defendant’s counsel, Victoria Agomuo, in her 17-paged Final Written Address (settled with Bimbo Atitola Esq and Yusuf Hammed Esq), dated and filed on 10th August 2018, raised a sole legal issue for determination: Whether or not the Claimant has made a case for herself to enable her be entitled to the reliefs sought?

 

Canvassing arguments on the sole issue, learned counsel however, raised two preliminary points. The first is that some of the Claimant’s documents tendered were wrongly admitted in evidence even with non-compliance with S.84 Evidence Act 2011, in that the Certificate of Compliance served in satisfaction of S.84 Evidence Act did not cover some documents tendered and admitted in evidence and no oral evidence of the working of the computer were given at the trial. Counsel pointed that the affected Exhibits are:  Exhibits CE28 (Claimant’s email of December 23rd December 2016 requesting for Exit Form), CE29 (Claimant’s email of 24th April 2017 to the Defendant’s MD reminding him of her unpaid entitlements) and DE4 (Defendant’s email of December 24 2014 cancelling gratuity scheme; tendered through cross-examination of DW).

 

It is counsel’s submission that such evidence wrongfully admitted ought to be expunged, citing and relying on  Ezeugo v. State (2013) LPELR-19984 (CA), Olowoyo v. Ojo & Ors (2011) LPELR- 4504 (CA), to the effect that the court is under a duty to admit and act only upon evidence which is properly admissible within the purview of the provisions of the Evidence Act and other relevant statutory provisions, and where however the court inadvertently admits such an inadmissible evidence, the court is under a duty not to act on it.

 

The second preliminary issue is that some of the monetary reliefs claimed by the Claimant have been paid by the Defendant bank. Counsel pointed that the Claimant is claiming for Gratuity in the sum of N1, 379,644.74, but this sum has been paid since the 27th of December, 2017 as evidenced in the entry of the 27th December, 2017 titled “End of Service Entitlement” of the Claimant’s Statement of Account (Exh.DE1). Also the claim of 15 years Long service bonus for the sum of N600,000 has been paid since the 26th of January, 2018 as evidenced in the entry of the 26th of January, 2018 titled “Long service award” of the Claimant’s Statement of Account (Exh. DE1)

 

On the substantive issue for determination, learned counsel submitted that the Claimant is not entitled to the reliefs A, B and C, as the condition precedent to be entitled to the reliefs was not satisfied, in that the Claimant did not attain the 15 years in service of the Defendant as at 15th December 2016. Counsel relied on exh.DE3 (Defendant’s mail of 23rd December 2016 cancelling the retirement policy) and exh.CE12 (Defendant’s Personnel Policies and Procedure Guide (PPPG) dated June 2010 but reviewed in December 2015) which states in “Page 53 that the retirement age for voluntary retirement is a “minimum of 15 years unbroken service”.

 

Arguing that attainment of 15 years of service amounts to condition precedent which ought to be fulfilled before being entitled to the retirement benefit, counsel cited and relied on myriad of judicial authorities on effect of non-compliance with condition precedent, such as: Nigercare Development Company Ltd v. Adamawa State Water Board (2008) LPELR- 1997 (SC),; Virgin Nigeria Airways Ltd v. Roijien (2013) LPELR- 22044 (CA); Tsokwa Oil Marketing Company Nigeria Limited v. Bank of the North Ltd (2002) LPELR- 3268 (SC), to the effect the condition precedent connotes compulsory compliance.

 

To counsel, since the Claimant had not attained 15 years in service, she cannot legitimately claim for benefits she is not entitled to. On the contrary, counsel submitted that if the Claimant had attained the 15 years in service with the Defendant bank as at the time of the cancellation of the policy on Retirement benefits, then she would have fulfilled the Condition precedent and would have been entitled to Retirement Benefits.

 

Counsel further argued that because the Claimant had spent over 5 years in the service of the Defendant bank as at December 31, 2015, but below 15 years, she had satisfied and met the condition precedent to be entitled to be paid her gratuity and she was accordingly paid as evidenced in the entry of 27th of December, 2017 of the Claimant’s statement of account (Exh.DE1) wherein she was paid the sum of N1, 379, 644, 73 for “End of Service Entitlement”. It is counsel’s stout contention that the piece of evidence available at the trial as confirmed by Paragraph 5 of the Claimant’s witness statement on Oath merely shows that the Claimant was employed by the Defendant bank on the 21st of January, 2002 and so, the Claimant would only attain 15 years of service on the 22nd February, 2017.

 

 

 

 

Counsel further contended that the Exh.CE13 (which is the Claimant’s notice of retirement from the Defendant bank’s services dated the 22nd December, 2016) does not vitiate the fact that the Claimant had not attained 15 years’ of service in the employment of the Defendant bank as at when the letter of ‘resignation’ was submitted and as at when the said policy was cancelled.

 

On Claimant’s reliefs D and E, learned Defendant’s counsel submitted that the Claimant has not placed any material evidence before the court showing how she is entitled to the reliefs sought. That the Claimant wants the court to act in a vacuum as the Claimant has not provided the basis for the reliefs sought, and as such the reliefs would fail. In support of her submission, counsel cited and relied on a host of cases, such as:  Onuorah & Anor v. Ubaike & Ors (2016) LPELR- 42084 (CA); Umeoji & Anor v. Azodo & Ors (2011) LPELR- 9179 (CA); FCDA Staff Multipurpose (Coop) Society & Ors v. Samchi & Anor (2018) LPELR- 44380 (CA); Udu v. INEC (No.2) [2010] 13 NWLR (Pt. 1212) 456 and  Abubakar v. Yar’Adua (2009) All FWLR (PT. 457) 1 Ohwovoriole v. FRN (2003) FWLR (pt.141) 2019; Oniah v. Onyia [1989] NWLR (pt. 99) 514(wrong citation), all to the effect that placing sufficient material is imperative as court only act on evidence presented in support of pleadings.

 

Counsel pointed that on the claim for interest, nothing has been placed before the court showing that interests are being charged on any commercial loans or that the Defendant is not entitled to charge interest on any such commercial loans. To counsel, ‘this is simply a bogus claim with no foundation in the Claimant’s Statement of Facts’. Counsel contends strenuously that the Claimant is not entitled to this relief as she has not pleaded anything substantiating this relief and as such it must fail.

 

On the Claimant’s relief (e) for general damages, learned counsel, citing and relying on Akinfosile v. Mobil Oil (Nig) Ltd (1969) N.C.L.R 253; Akinfosile v. Mobil Oil (Nig) Ltd (1969) N.C.L.R 253; Tsokwa Oil Marketing Co v. BON Ltd [2002]11 NWLR (Pt.777) 163 @ 201, submitted that since award of damages may only arise when a Claimant has established a wrong done to him, as the object of awarding damages is to compensate the Claimant for any loss or injury the Claimant has suffered as a result of the acts or omission of the Defendant, in the instant case, the Claimant did not establish any injury done to her on the part of the Defendant. And therefore not entitled to award of damages and if awarded would be set aside, counsel insists.

 

Concluding learned counsel urged the court to uphold the defence and dismiss the Claimant’s case.

 

Submissions by Claimant’s Counsel:

 

On the Claimant’s part, learned Claimant’s counsel, Chioma Udeagbala, in her 35-paged Final Written Address (settled with Adeniyi Adegbomire SAN, Adeola A. Kembi and Jennifer Igwebike), dated and filed on 17th September 2018, raised two legal issues for determination: 1. Whether having regard to the evidence led at trial the Claimant is entitled to the claims and/or reliefs sought against the Defendant before this Honourable Court?, and 2.  Whether the technical objections raised by the Defendant are frivolous and inconsequential in the determination of the real issues before this Honourable Court?

 

On issue 1, counsel submitted that the Claimant has sufficiently proved that she is entitled to the reliefs sought as per the Amended Statement of Facts by virtue of her retirement after rendering 15 years of unbroken service to the Defendant. Counsel pointed that it is not in contention that the Claimant became an employee of the Defendant on 21 January 2002 and remained in the employment of the Defendant till the 22 February 2016 while rendering 15 years and a month of unbroken service to the Defendant. Counsel maintained that the Defendant had made payment in the sum of N600,000 and N1,379,644.73 as shown in Exh.DE1 (Claimant’s Statement of Account), representing payment for long service award  and  the Defendant’s calculation of the Claimant’s end of service entitlement.

 

Contending that the Defendant’s payments to the Claimant amount to admission of the Claimant’s entitlement to retirement benefits for attaining 15 years in service, counsel wondered why the Defendant would pay the outstanding gratuity and the 15 years long service bonus to the Claimant if the Claimant was truly not entitled to same? Counsel urged the court to discountenance contrary submissions by the Defendant’s counsel and find in favour of the Claimant that she indeed attained 15 years of service with the Defendant and should be entitled to the reliefs as claimed for her entitlements.

 

Canvassing arguments in support of the Claimant’s reliefs sought, counsel  contends that as per relief (1), that the Claimant is entitled to the cash retirement benefit in the sum of N27,805,847.40 (Twenty-Seven Million, Eight Hundred and Five Thousand, Eight Hundred and Forty-Seven Naira and Forty Kobo).

 

 

 

 

Arguing further for Claimant’s entitlement to relief (1), counsel noted that while it is clear that as at the date when the retirement benefit policy was cancelled (23rd December 2016), the Claimant had served the Defendant for specifically 14 years and 11 months (i.e. one month away from 15years service),  but submitted that 3 cogent reasons  avail the Claimant why the cancellation of the policy cannot be held enforceable, so that the Claimant would be afforded the legitimate right to claim the retirement benefits:

 

(i). The unilateral cancellation of the retirement benefits is null and void and unenforceable against the Claimant for lack of consideration –

 Counsel submitted that it is trite law that contracts of employment, like all other contracts, are subject to the general principles governing the law of contract which require the basic elements of offer acceptance, consideration and mutual intention to create legal relationship for validity. To counsel, any variation of the terms of the contract must necessarily comply with the same conditions to be valid. And where the contract of employment, or the terms and conditions of the contract of employment, is in writing, the parties are bound by the express terms and conditions so stipulated, and the Court is duty bound to make recourse only to such document, in determining any dispute arising from the employment relationship.  

 

Citing and relying on CBN v. Igwillo [(2007] 14 NWLR (Pt.1054) 393; Audu v. Petroleum Equalisation Fund (Management) Board & Anor [2010] LPELR-3824, to the effect that in  employment contract governed by several documents, the documents shall all be read together, counsel submitted that in determining whether the Claimant is entitled to the reliefs she seeks, recourse must be made to the governing document which regulated the Claimant and Defendant’s relationship, prior to the Defendant’s purported cancellation of the retirement policy and other documents, particularly Exhs.CE1-10 and Exh.CE12, which all govern the relationship between the Claimant and the Defendant with clearly stated rights, privileges, benefits, entitlements and obligations of the Claimant and Defendant in the employment relationship.

 

Counsel contends that the said cancellation of the retirement benefit amounts to a variation of the terms of the contract (PPPG-exh.CE12) between the parties, and the Defendant having unilaterally varied the provisions of Exh.CE12 by an email (Exh.CE16B) without the opinion or concurrence or sufficient notice to the Claimant, is a breach of contract.

 

 

 

 

Counsel cited and relied on a myriad of cases on variation of contract, such as: Mobil Producing Nig. Unltd & Anor. v. Udo [2008] LPELR-8440; Unity Bank Plc v. Olantunji (2014) LPELR – 24027 (CA); The Canadian Supreme Court of  Ashaka Cement Plc v. Asharatul Mubashshurun Investment Ltd (2016) LPELR-40196 (CA); Sanusi v. Daniyan & Ors. [1973] 5 S.C, counsel strenuously submitted that there was no consensus/mutual agreement between the parties with respect to the cancellation of the long-standing retirement benefits and the said variation of the terms of the PPPG or cancellation was not supported by any additional consideration whatsoever, as the Defendant ought to have offered  the Claimant a fresh consideration.

 

Having failed to offer the requisite consideration for the purported variation of the contract of service, it is counsel’s vehement submission that the purported variation of the terms of the PPPG contract/cancellation of the retirement benefit through Exh. CE16B/Exh.DE3 should be declared null and void and unenforceable against the Claimant.

 

(ii). The Defendant acted in bad faith-

It is counsel’s contention that the Defendant set up all the guidelines of compliance for any exiting staff -, of which the Claimant complied with but the Defendant rather than complete the process and release the Claimant’s entitlement made it difficult for the Claimant to complete the process by unreasonably delayed her End of Service Statement (EOS) which would provide clear details of her entitlements and obligation in line with the Defendant’s exit policy.

 

Counsel pointed that while all other mandatory clearance documents such as Exh. CE15A and CE15B were forwarded to the Claimant, the advice on the Claimant’s EOS Statement and gratuity benefit stipulating the Claimant’s financial entitlements was not forwarded to the Claimant by the Defendant as before the Claimant subsequently proceeded on 7 (seven) days working leave as authorized by the Defendant’s Leave Administrator via Exh. CE16A on 22 December 2016. Counsel however pointed that on 9th January 2017 when the Claimant resumed from her 7 (seven) working days’ leave, the Claimant saw Exh.CE16B authored by the Defendant’s Head of Human Resources Department, Charles Nwachukwu, and sent on 23 December 2016 at about 8:08 pm (a day after the Claimant tendered her notice of retirement), through which the Claimant was informed that the long-standing retirement policy of the Defendant had been cancelled. 

 

 

 

Counsel further pointed that at the time the Claimant tendered her notice of retirement, the Defendant did not inform her of such cancellation and the Claimant never agreed to such variation or cancellation of the retirement benefits. Citing and relying on Akaninwo v Nsirim [2008 All FWLR (Pt. 410) 610 @ P. 659 on meaning and effect of acts of ‘bad faith’ as acts of ‘malafide’ ‘a conscious doing of a wrong arising from dishonesty purpose or moral obliquity’, counsel submitted that such conduct shows that the cancellation was an afterthought and done in bad faith in order to deprive the Claimant of the fruits and benefit of her 15 years unbroken and meritorious service for the Defendant.

 

(iii). The Claimant had legitimate expectation of her retirement benefits-

It is counsel’s concerted submission that the Claimant had legitimate expectations that she will be paid her retirement benefits having served the Bank meritoriously for 14 years and 11 months (one month away from the required 15 years’ service) as contained in Exh.CE12. Explaining the concept of ‘legitimate expectation’, counsel cited the Seychelles Supreme Court case of Allen Jena & Anor v. Wellington Felix & Anor (Civil Side No. 15 of 2008) and English Authority of The RT Hon. the Lord Woolf et. al, in De Smith’s Judicial Review,( 6th Edition, page 509), to the effect that Legitimate expectation arises where a decision maker (the Defendant in this case) had led someone affected by the decision to believe that he will receive or retain a benefit or advantage.

 

Counsel submitted that the Defendant had brought into existence the PPPG (Exh. CE12) which contains the provisions on remuneration and retirement benefits due to an existing staff. To counsel, by Paragraph 4 of Exh.DE3, the Defendant had by its conduct expressly reiterate its commitment to the terms of the PPPG by continuing with the retirement policy, which states that:

“4. The Bank will continue to extend its support to staff members that have displayed exceptional loyalty to the institution. On this note, the Bank’s retirement policy, open to those with fifteen (15) years of service and above remains unchanged”. 

 

Citing and relying on the Supreme Court case of Abalogu v. S.P.D.C. Ltd. [2003] 13 NWLR (Pt.837)309, on the application of the doctrine of promissory estoppel, counsel submitted that the Defendant is estopped from depriving the Claimant of her earned and expected retirement benefits.

 

 

 

Counsel maintains that the Defendant by its act and conduct gave assurance to the Claimant that the retirement policy remains unchanged as a reward for loyalty, and the Claimant acted on the said assurance by continuing her meritorious service to the Defendant. Thus, the Defendant is precluded from reneging on the assurance it made to the Claimant, counsel urged the court to so hold.

 

On Relief 2, it is counsel’s submission that the Claimant is entitled to Long Service Award Certificate having served the Defendant meritoriously for 15 years and having been paid the 15 years long service award in the sum of N600,000.00 (Six Hundred Thousand Naira). Counsel hauled in a host of cases on what amounts to admission and its effect on judicial proceedings, such as: Eigbe v. N.U.T. [2008] 5 NWLR (Pt. 1081) 604 at P. 632; Cappa & D' Alberto Ltd. v. Akintilo [2003] 9 NWLR (Pt.824) 49; Rosehill Ltd. v. GTB [2016] LPELR-41665, and contended that the fact of the Defendant’s payment of the cash sum of N600,000.00 long service of 15 years bonus to the Claimant is and admission of that fact and settles the controversy around it without need for further proof.

 

Counsel further argued that the Claimant is qualified for 15 year inscribed long service award going by Exh. CE12, specifically clause 7.18, page 52, states clearly the prerequisites for award of long service award and certificate as follows:

“Qualification

·        The bank will present or award to members of staff various token in appreciation of their loyal and continuous service. The award will be made to those who have completed 10 years of service; and each additional 5 years of service thereafter that is 15 years, 20 years of service etc.

·        Certificate of service will be given to each qualifying staff with the number of years of service inscribed and signed by the Managing Director and the Group head Human Resources,

·        Congratulatory Letters are also issued,

·        A cash award as indicated below shall be presented to the awardees according to the grade level.”

 

Counsel urged the court to direct the issuance of the accompanying certificate as the Defendant has already paid the cash component of N600,000 for 15 years long service bonus, remaining the certificate to be issued by the Defendant to the Claimant to that effect.

 

 

 

On Relief 3, counsel submitted that the Claimant is entitled to a refund of the interest on the Commercial Loans charged on the Claimant’s account by the Defendant after the Claimant’s exit from the Defendant because the balance of the loan ought to be deducted from the Claimant’s gratuity and retirement benefits immediately upon the Claimant’s exit.

 

It is Claimant’s contention that during examination of the DW, it was admitted that the sum of N1, 379,644.73 was paid by the Defendant to the Claimant. And it is clear that the said amount was arrived at after deductions of the Claimant’s outstanding commercial loans in line with Exh. DE3 which states: “Please note that all applicable staff loans will be deducted in line with the policy”.  Counsel pointed that despite the fact that the Claimant’s commercial loans were fully netted off from the Claimant’s gratuity upon retirement from the Bank, the Defendant continued to deduct interests from the Claimant’s account thereby putting the account of the Claimant in debit as shown in Exh. CE32, making her unable to operate her account and causing her untold hardship, hence the relief for the refund of the said interests charged on the Claimant’s account for commercial loans after the retirement date of 22 February 2017.

 

Counsel pointed that it is evident from exhs. CE32 and DE1 that the Defendant continued to charge the Claimant’s account with interest on the already liquidated commercial loan, shows clearly that on 22 February 2017 (two days after the Claimant retired from the service of the Defendant and after the Defendant is supposed to have liquidated the loans from the Claimant’s gratuity) the sum of 127, 083.33 titled “Loan Recovery for 016304010002042” was deducted from the account of the Claimant, among other subsequent deductions.

 

Counsel maintains that contrary to the submissions of the Defendant contending that the claim for recovery of interest was not pleaded, counsel stated that it was properly pleaded in the Amended Statement of Facts and evidence led on it in the CW’s Witness Statement, and also documentary evidence tendered at the trial (exh.CE32), and both parties properly joined issues on it. 

 

Citing and relying on Aiki v. ldowu [2005] 9 NWLR (Pt. 984) 47, the documentary evidence speaks for itself and court is bound to look at it in its record and evaluate same in resolution of the issues joined by the parties.

 

 

 

 

 

On Relief 4, counsel canvassed that the Claimant is entitled to General Damages for the losses suffered as a result of the unfair treatment of the Defendant and the Defendant’s failure to pay the Claimant her retirement benefits. Counsel cited and relied on Afolabi v. Ola [2016] LPELR-40186; PHCN & Anor v. Atlas Projects Ltd [2017] LPELR-43622; Okali & Anor v. Okali & Anor [2017] LPELR-42838, to argue that in the interest of justice, the unfair treatment of the Defendant as placed before the court deserves compensation by award of general damages.

 

On issue 2- Whether the technical objections raised by the Defendant are frivolous and inconsequential in the determination of the real issues before this Honourable Court: It is counsel’s submission that  while it can be conceded  that S.84 of the Evidence Act require that a certificate must be produced to show that the conditions stipulated therein have been complied with, it is also the law that the only situation in which the court will entertain a complaint on admissibility of documentary evidence without objection being raised at trial stage is where the document was unlawfully received in evidence at the trial or the document is by law, inadmissible in any Court and in all circumstances.

 

Counsel argued that the documents in issue- exhs. CE 28 and 29 and exh. DE4 were admissible document by their nature, and there being no objection at the stage of admissibility at the trial proceedings, such objection is deemed waived. In support of his submission, counsel cited and relied on Arinze v. First Bank (Nig.) Ltd. [2000] 1 NWLR (Pt.639) 78; B.M.N.L. v. Ola Ilemobola Ltd. [2007] Al FWLR (Pt. 379) 1340 at 1367 – 1368; and Dilali & Ors v. Leka & Ors [2018] LPELR-43998.

 

Counsel urged the court to discountenance the technical objection in view of the fact that the said Exhibits are very much admissible in law and relevant to the dispute between the parties except that certificate of identification was not tendered to satisfy the requirement of the law as pointed by Defendant’s counsel but in a Written Address and not at trial proceeding.

 

Reply on Point of Law by Claimant’s Counsel:

On receipt of the Claimant’s Final Written Address, learned Defendant counsel, responded on point of law vide a 5-paged Reply on Point of Law dated and filed on 5th November 2018.  Counsel argued that as document speaks for itself, exh.DE3 (Defendant’s email on the new policy) can speak for itself on what it states. On that note, counsel contended that the Defendant’s new policy which is exh.DE3 in no way states that the Claimant would be entitled to be paid 100% of her retirement benefit and 33.3% of the earlier accumulated gratuity benefit as at 23rd December, 2016.

 

On the issue as to whether an employer has the right to amend or vary his employment policies, counsel submitted that an employer has the right to amend his employment policies or conditions of service, especially where same is an optional benefit as in this case. Counsel placed reliance on  Mr. Chester Onyemaechie Ukandu v. Mainstreet Bank Registrar Limited (Suit No: NICN/LA/335/2013) Judgment of which was delivered on 27-05-2015 wherein  the court referred to the Court of Appeal case of ECWA v. Dele (2004) 10 FWLR (pt. 230) 297, to the effect that where conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant condition of service is the one that is applicable at the time of termination of appointment. And that to hold that it is the one applicable at the time of appointment will mean that if the amended one, or new one introduces benefits such as improved conditions of service, then an existing employee would not be able to take advantage of same.

 

Counsel finally submitted that conditions of service may be amended and that the relevant one is the one that is applicable at the time of termination of appointment and urged the court to so uphold.

 

At the resumed proceedings of 6th March 2019, both counsel adopted their respective Final Written Addresses, adumbrated on them and urged the court to uphold their respective submissions in favour of their respective parties. However, in response to the legal issue arising from the authority of the ECWA’s case (supra) cited by the Defendant’s counsel in  her Reply on point of law, to the effect that benefits applicable to staff is as at time of exit and not appointment, learned Claimant’s counsel submitted that the ECWA’s case is distinguishable from the facts and circumstances of the instant case, in that, in ECWA, the issue is about amendment of the staff Handbook which the employee also signed and agreed to be bound by the new one. But in the instant case, no such agreement was reached varying the retirement benefit, and the variation is contrary to legitimate expectation, counsel submitted.

 

The matter was thereafter adjourned for Judgment.

 

 

 

 

 

 

 

 

 

 

COURT’S DECISION

 

I participated actively in the proceedings; painstakingly read the voluminous pleadings and processes, as well as intensively reviewed submissions canvassed in a total of 58 paged-Final Written Addresses and Reply on Point of law, filed and exchanged between both counsel, in advancing the case of the respective  parties they represent, and keenly watched the Witnesses testify and noted their demeanors, and carefully evaluated the evidence tendered as exhibits in the proceedings, and conducted independent research to sure-foot the authorities to be relied on to resolve the issues in dispute between the parties. 

 

I need also to commend the assiduous manner with which both counsel canvassed their case to woo the court to each divide of the hotly contested recondite legal issue upon which the kernel of the dispute revolves. Both counsel expectedly, in a diametrically divided standpoint, still maintained decorum and carried out their duties in best professional etiquette.

 

Learned Defendant’s counsel had raised and canvassed arguments on a sole legal issue for determination: Whether or not the Claimant has made a case for herself to enable her be entitled to the reliefs sought? However, while canvassing arguments on the sole issue, learned counsel raised two preliminary points, particularly the first bordering on objection that some of the Claimant’s documents tendered were wrongly admitted in evidence even with non-compliance with S.84 Evidence Act 2011, in that the Certificate of Compliance served in satisfaction of S.84 Evidence Act did not cover some documents tendered and admitted in evidence and no oral evidence of the working of the computer were given at the trial.

 

On the other hand, the Claimant’s counsel raised and canvassed legal submissions on the two issues she raised for determination of the Claimant’s case, viz: 1. Whether having regard to the evidence led at trial the Claimant is entitled to the claims and/or reliefs sought against the Defendant before this Honourable Court?, and 2. Whether the technical objections raised by the Defendant are frivolous and inconsequential in the determination of the real issues before this Honourable Court? 

 

 

 

 

 

 

The Claimant’s issue 2 did not arise from the substantive dispute between the parties, as it is basically responding to the preliminary point of objection raised by the learned Defendant’s counsel regarding admissibility of some documents at the trial. To clear way for effectual resolution of the substantive issue in dispute between the parties, I will first proceed to resolve this preliminary point of objection on admissibility of some documents raised by the Defendant’s counsel and responded to by the Claimant’s counsel in her issue 2, before I set down for resolution, the common issue raised by both counsel as to whether having regard to the evidence led at trial the Claimant is entitled to the claims and/or reliefs sought against the Defendant?, of which I also adopt.

 

Learned Defendant’s counsel had raised a preliminary point of objection regarding alleged wrongful admission of exhs. CE 28, CE29 and DE4, for non-compliance with S.84 Evidence Act. Counsel’s main grouse is that though the Claimant filed a Certificate of compliance but those mentioned exhibits were not covered, and that she had withdrawn her objection earlier made and waited to see if there would be oral hearing on the alternative method of laying foundation by oral evidence of the working of the computer from which the document was extracted in satisfaction of the requirement of S.84 Evidence Act on requisite foundation for admissibility of computer-generated evidence.

 

The affected Exhibits are: Exhibits CE28 (Claimant’s email of December 23rd December 2016 requesting for Exit Form), CE29 (Claimant’s email of 24th April 2017 to the Defendant’s MD reminding him of her unpaid entitlements) and DE4 (Defendant’s email of December 24 2014 cancelling gratuity scheme; tendered through cross-examination of DW). Counsel had strenuously argued that  such evidence wrongfully admitted ought to be expunged, citing and relying on  Ezeugo v. State (2013) LPELR-19984 (CA), Olowoyo v. Ojo & Ors (2011) LPELR- 4504 (CA).

 

Responding in her issue 2, Claimant’s counsel conceded that though the documents were not covered in the listed documents in the certificate of compliance and no oral testimony was made for laying the foundation in compliance with S.84 Evidence Act, but stoutly argued that the Defendant’s counsel waived the objection at the stage of trial where she ought to have objected if she felt strongly about the objection, and since the documents are not by themselves inadmissible in law, the objection is belated and cannot be raised at address stage of the proceedings, and deemed waived.

 

 

Counsel cited and relied on a number of cases, particularly Dilali & Ors v. Leka & Ors [2018] LPELR-43998, wherein the Court held that:

“Where a counsel stands by and allows exhibits to be tendered without any objection, he cannot be heard to later complain about the admission of those documents in evidence. The documents so admitted become legally admissible evidence which the Court can rely on.”

 

It needs to be pointed out that even if the objection succeeds and the  said admitted exhibits expunged, what they seek to establish are not really in dispute between the parties and  findings made on them are still relevant and available for use  in resolution of the dispute between the parties.

 

From the records, I find that it is not in dispute that the Claimant served notice of retirement ; that she was not paid according to her expectation based on the prevailing policy at the time of her tendering her retirement notice ; that the Defendant through an email sent on the same day of her own notice of retirement cancelled the existing retirement benefit and limited it to only those who have attained 15 years long service which is to operate retroactively; that similar cancellation of gratuity took place in the past but with one year notice by the Defendant; that exit form is a required document for completion by exiting staff and ought to be supplied by the Defendant to the affected employee.

 

Nevertheless, on the objection, I also find that the Defendant had raised objection but withdrew same but after awaiting the oral testimony on the working of the computer as the alterative foundation in compliance with S.84 Evidence Act, it slipped the memory of the learned Defendant’s counsel to revive her objection at the trial stage only to recall by a memory flashback of the lost objection at the address stage. Can counsel rightly do so? I think not, given that the objection is mere procedural and did not go to the nature of the document in terms of its intrinsic admissibility in law.

 

This presents another opportunity to once again, contribute to the growing discourse on the S.84 Evidence Act-objection on admissibility of computer-generated evidence. To my mind, this type of admissibility objection remains for only the vigilant who lays snares and watches over it at the trial stage, and once the objection slips off at trial stage, it finally eludes the objector who is deemed to have waived the objection in law. The documents so admitted remain valid and legally admissible which a court of law can rely on to resolve contending issues in dispute. I so hold. Accordingly, I resolve this issue in favour of the Claimant’s counsel.

 

Before proceeding further, let me quickly dispel the anomalous description of the Claimant’s exit from the Defendant as ‘Resignation’ which were replete in both pleadings and submissions for the Defendant. Although both Resignation and Retirement are legally recognized path-ways for an employee in employment relationship, yet Resignation and Retirement are not synonyms and ought not to be used interchangeably as done even by learned Defendant’s counsel, in the instant case. There is no gain-saying further that what is in issue in the instant case is Retirement and not Resignation, and should not be so confused. I so hold.

 

The remaining sole substantive issue raised commonly by both counsel and adopted for consideration is - whether from the facts and circumstances and evidence before the court, the Claimant has established her case to be entitled to the reliefs sought?

 

Both counsel had canvassed arguments in ardent support of their respective divide on the recondite legal issue underpinning the substantive issue set out for determination in this suit, which is- Can the Defendant validly change its existing policy in the manner it did to have effect of denying the Claimant her long expected exit package as stipulated in the service contract between the parties?

 

In other words, can the Defendant validly cancel the extant retirement policy without notice and made it to operate retroactively? Can the Claimant who has attained 14 years and 11 months in service at the time of the new policy and having served notice indicating her option to retire and take benefit of the extant policy at the time of serving the notice be denied the retirement benefit under the existing policy or be switched over to the new policy which appears to be detrimental to her pecuniary interest in the service? These are few of the ancillary issues agitating judicial mind faced with resolution of this hotly contested recondite legal issue on the effect of new policy on a party at an exit point of an organization?

 

The Claimant’s counsel had taken the view and canvassed legal arguments in support of the position that given the facts and circumstances of the Claimant, having served up 14 years and 11 months at the time of change of policy, she would remain counted among those who have attained 15 years at that point and take benefit of the extant retirement policy which was preserved for those who have attained the 15 years long service at the time the policy was to take effect.

 

 

Learned Claimant’s counsel had presented three core reasons and canvassed arguments on why the Claimant should not be allowed to be negatively affected by the new policy. The reasons are: (i).The unilateral cancellation of the retirement benefits is null and void and unenforceable against the Claimant for lack of consideration – (ii). The Defendant acted in bad faith- (iii). The Claimant had legitimate expectation of her retirement benefits.

 

It was contended for the Claimant that the policy operated automatically and also retroactively without notice and unilaterally done, which the Claimant saw as a reaction to her notice of retirement and thus done in bad faith to affect her legitimate expectation of her retirement benefit.

 

For the Defendant, counsel saw nothing wrong or negatively impacting on the Claimant’s expected benefit as she did not meet the condition precedent and therefore has nothing to expect in the cancelled policy, which preserved the exiting retirement benefit for only those who attained the 15 year bench mark as at 15th December 2016, when the policy was said to have taken effect. To counsel, though belated paid, the Defendant had fulfilled its obligation by paying the Claimant based on her status with the new policy having not qualified under the preserved 15 year-threshold package under the cancelled policy. To the Claimant’s counsel, the position remains the same notwithstanding that the Claimant had served notice of retirement at the time of the new policy was communicated.

 

It is common ground between the parties that- the Defendant sent in the new policy in an email issued on 23rd December 2016 at 8.08 pm but made to take effect on 15th December 2016(exh.DE3/CE16B) cancelling the extant policy contained Personnel Policies and Procedure Guide (PPPG-exh.CE12).The Claimant sent in her Notice of Retirement dated 22nd December 2016 and acknowledged by the Defendant on 23rd December 2016, (exh.CE13) and she proceeded on her approved annual leave on 23rd December 2016 (exh.CE16A).

 

The transition provision of the new policy (exh.DE3/CE16B) that preserved the extant policy states: “HR is hereby authorized to commence the payment of earned gratuity to staff who have spent 5 years as at December 31, 2015 and retirement benefits to staff of the bank who have spent 15 years as at December 15, 2016 in line with the extant policy. Please note that all applicable staff loans will also be deducted in line with the policy”.

 

 

 

 

The relevant provisions of the said extant policy contained in the PPPG (exh.CE12) in Clause 7.18 set out three categories of length of stay (years)- 10, 15, 20 and 25 years: Long Service Award Schedule- 5. AM-DM is where the Claimant falls in and in years of 15 years entitled to N600, 000.  Retirement Benefits (Cash benefits) as stated in Clause 7.20.3 (b)(ii) for those in the category of AM-SM, (where the Claimant belongs as Assistant Manager (Notch1) (AM) (as per exh. CE10- letter of last promotion dated 23rd April 2012), is – AM-SM: Nine months Basic salary, Transport and Housing for each completed year. I find this as forming the basis of the Claimant’s claim for retirement cash benefit in calculated sum to the tune of  N 27,805,847.40.

 

Going further in the issue in contention, I hold the view that though an employer has a right to amend, cancel or modify any part of the contract of service with the employer and it is not in all circumstance it has a duty to re-negotiate with employer, yet the court has developed attitude in strict construction of any   provision in any piece of rule (be it statutory, private or public) which   has effect of taking away any accumulated benefit of a person involved.

 

It is part of the court’s equitable jurisdiction to preserve earned benefits, particularly those of pecuniary nature, and court usually tilt towards resolving such emerging controversy in favour of the beneficiary rather than in favour of one trying to take away or expropriate the benefit. Retroactive action taken to achieve such expropriation always fail against the victim as the court do not protect retroactive action capable of denying accrued benefit, but holds both parties to their original bargain to save earned benefits at the point introduction of new policy regime.

 

On that note, I find and hold that the Defendant ought not to have made exh. DE3 to operate retroactively as if the Claimant had not served her Notice of Retirement before the new policy came into effect. To that effect I hold that the Claimant’s Notice of Retirement remains valid and issued before the coming into effect of the new policy in exh.DE3.

 

In my view, it is in keeping with this equitable behavour that the Defendant made transition provision for those already entitled to the benefits that accrued before the new policy cancelling the existing benefits. A transition provision of this kind also has its jurisprudential foundation from the equitable doctrine of estoppel by conduct/conduct, a variant of the doctrine of equitable estoppel.

 

 

In A.G, Nasarawa State v. A.G, Plateau State [2012]10 NWLR (Pt.1309) SC419 @ 449, paras.E-F, 450, para.C, the Supreme Court held:

“The doctrine of estoppel by contract is a bar that prevents a person from denying a term, fact or performance arising from a contract that the person has entered into. In the instant case, estoppel operated against the defendant. The defendant was stopped from backing out from the terms of the agreement in exhibit NAS4”.

 

From the records, the Defendant has maintained a hardline that though the Claimant has worked meritoriously for an unbroken record of 14 years and just about a month to complete 15 years required as threshold for the preserved retirement benefit, yet the principle of arithmetical approximation would avail the Claimant in deeming her to have served the 15 years at the time of operation of the new policy on the date it was issued i.e 23rd December 2016 (having lost its retroactive effect in my earlier holding). This becomes imperative as the Claimant still served out her complete 15 years even after serving earlier notice of retirement before the coming into effect of the new policy.  A look at exh.CE12 (PPPG) shows the three categories of length of stay (years)- 10, 15, 20 and 25 years. Applying the principle of arithmetical approximation, the Claimant who has served over 14 years and some fractions of months to attain 15 years from Jan.21 2002 to 23rd December 2016 when the new policy took effect, is hereby deemed to have attained 15 years. I so hold.

 

Again, the Defendant has alluded to this approximation when it paid into the Claimant’s account the sum of N600, 000. By PPPG (exh.CE12), which in Clause 7.18 set out three categories of length of stay (years)- 10, 15, 20 and 25 years stipulates : Long Service Award Schedule-5. AM-DM (15 years), which is the category the Claimant falls in to be entitled to the N600, 000 paid her by the Defendant. To that end, I not only agree with the learned Claimant’s counsel that such conduct amounts to admission on the part of the Defendant, but  I also hold the view that it evokes application of equitable estoppel by conduct. In the A.G Nasarawa’s case (supra) @ 449, paras.G-H, the Apex Court took similar position and held that:

“Section 151 of the Evidence Act clearly incorporates the doctrine of equitable estoppel. By operation of the rule of estoppel, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other or approbate and reprobate”.

 

 

 

 

 

Flowing from the foregoing findings, I entertain no more doubt that the Defendant has recognized the Claimant as falling in the category of those who attained 15 years of long service as the time of coming into effect of the new policy on December 23rd 2016. I so hold. Accordingly, the Claimant shall be so treated in the consideration of the reliefs sought.

 

Having gone thus far, it is time to consider the reliefs sought for by the Claimant, anchoring sole issue slated for determination -whether the Claimant has proved her case and entitled to the reliefs sought? The case of the Claimant points to one declaratory relief of which positive determination would ground and anchor sustenance of the other substantive reliefs, in addition to claims for general damages for breach of contract.

 

Relief (a) seeks for a “Declaration that the Defendant’s failure to make any payment with respect to the Claimant’s retirement benefits and February 2017 earned salary is a breach of the Claimant’s contract of employment and all known labour laws and best practices”. The law is quite settled to the extent of discharge of burden of proof on the Claimant seeking declaratory reliefs has been guided in Dim v. Enemuo [2009] 10 NWLR (Pt. 1149) SC 353@Pp.380-381, Paras.F-D, to the effect that even admission of the Claimant’s pleadings by the Defendant is not enough to anchor and sustain relief bordering on declaration of right. To ascertain if the Claimant satisfied this requirement, the pertinent question remains, did the Claimant lay sufficient and cogent evidence to support his declaratory relief?

 

I have earlier dealt with this question while resolving the sole  issue set out for determination , and had come to the finding that, from available evidence on record based on the pleadings and adduced evidence at the trial, that the Claimant has lawfully attained the 15 years long service period with the Defendant and is entitled to benefit from the preserved retirement benefits available as at the time the new policy cancelling the extant policy came into force vide exh.DE3 published on 23rd December 2016, the Defendant having earlier serviced her Notice of Retirement and served out the remaining months to attain full 15 years long service with the Defendant. And also that the Defendant by paying the Claimant the cash for long service award on the basis of attaining 15 years long service is estopped from reprobating that the Claimant did not meet the condition precedent to be entitled to payment of the extant retirement benefits and her last working month’s salary of February 2017. 

 

 

 

 

In the circumstance, the Relief (a) succeeds. Accordingly, it is hereby declared that the Defendant’s failure to make any payment with respect to the Claimant’s retirement benefits and February 2017 earned salary is a breach of the Claimant’s contract of employment and all known labour laws and best practices. I so hold and declare.

 

Relief (b) prays for an “Order directing the Defendant to pay to the Claimant the sum of N29,785,492.14 (Twenty-Nine Million, Seven Hundred and Eighty-Five Thousand, Four Hundred and Ninety-Two Naira, Fourteen Kobo), being the aggregated sum of the entitlement (inclusive of retirement benefits and gratuity) due to the Claimant”.

The Claimant had broken down the figures to lay out the particulars of the Defendant’s indebtedness against her as follows: 

Particulars of Claimant’s Retirement Benefits

            Gratuity (existing balance as at 31st December 2015)                 8,470,092.20

            Less: prepayment and commercial loans                                      7,090,447.46     

                               Sub-total:                                                                N1,379,644.74    

15 years Long Service bonus                                                                    600,000.00

Sub-total of Cash Benefits: As Assistant Manager (Notch 1)              N27,805,847.40                                          

                                   Total                                                                  N 29,785,492.14

I note that the claim on this sum has changed in the course of the proceedings as the Defendant pointed out in one of her two preliminary issues she submitted in her Final Written Addressed.

 

Counsel had pointed that the Defendant had on 27th December 2017 paid into the Claimant’s account the sum of  N1, 379,644.74, which the Defendant stated to be for the purposes of the Claimant’ “End of Service Entitlement” (Exh.DE1. The payment is for:

            Gratuity (existing balance as at 31st December 2015)          8,470,092.20

            Less: prepayment and commercial loans                                          7,090,447.46     

                               Sub-total:                                                                      N1,379,644.74.

 

Also the sum of N600,000 was paid in by the Defendant in the Claimant’s account on 26th January, 2018,  which is in satisfaction of the  claim of 15 years Long Service Award/bonus by the Claimant (Exh. DE1).

 

With this development and after deduction of the paid sums, the balance sum the Claimant claims remains the sum of N 27,805,847.40, as detailed in the following particulars:

a). Cash Benefits: As Assistant Manager (Notch 1)

 [See: page 53 clause 7.20.3(bii) of the Personnel Policies and Procedure Guide]

i.        9 (nine) months Basic Salary @ N33,855.33 per month for 15 (fifteen) completed years of service                                                       4,570,469.55

     ii.   9 (nine) months Transport allowance @ N18,742.83 per months  for 15

                    (fifteen) completed years of service                                         2,530,282.05

iii.   9 (nine) months Housing allowance @ N153,371.08 per month for  15

                  (fifteen)   completed years of service                                   20,705,095.80

                             Sub-total:                                                             N 27,805,847.40

 

Having declared that the Claimant is entitled to payment of her retirement benefit, and on the basis of the particulars of the entitlement set out by the Claimant in her pleadings and evidence adduced at the trial, without contradiction or denial of the Defendant on the basis of the calculation and figure arrived at, it is my considered view that the Claimant is entitled to payment of the sum representing her retirement based on the extant policy set out in PPPG (exh.CE12).

 

In the circumstance, the Relief (b) succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of N 27,805,847.40 (twenty seven million, eight hundred and five thousand, eight hundred and forty seven naira and forty kobo) being the Claimant’s  Retirement Benefit (Cash Benefits as Assistant Manager (Notch 1). I so hold.

 

Relief (c ) is for an “Order directing the Defendant to pay to the Claimant interest at the rate of 20% per annum on the unpaid Claimant’s entitlement sum of N29,785,492.14 (Twenty-Nine Million, Seven Hundred and Eighty-Five Thousand, Four Hundred and Ninety-Two Naira, Fourteen Kobo)”.  Defendant’s counsel had vehemently opposed this relief on ground that no material was presented by Claimant in proof of entitlement to the interest award. I had held in Alh.Saleh Buba v. Adamawa State University Consultancy Services Ltd (Unreported Suit No. NICN/YL/02/2017, Judgment of which was delivered on May 17 2018), and recently in Valentine Nkomadu v. Zenith Bank (Unreported Suit No. NICN/LA/206/2015, Judgment of which was delivered on May 9 2019) that where the Claimant fails to make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages, which is required to not only be specifically pleaded but to also provide sufficient evidence to ground its award, the claim for pre-judgment interest cannot be sustained.

 

In Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, the Supreme Court held that: “where interest is claimed, it must be proved before it can be granted”. I find that the claim for pre-judgment interest has not been proved with necessary materials to sustain its award. Accordingly Relief (c) fails, and is hereby refused and dismissed.

 

Relief (d) seeks for an “Order directing the Defendant to issue to the Claimant the 15 years long service certificate due to the Claimant in accordance with the contract of service of the Defendant”. This Relief is a component part of relief (b) dealing with cash benefits, which has been granted to the Claimant. From the records, the Claimant has demonstrated keen interest in receiving the Certificate of Long Service from the Defendant under the category of 15 years long service which has been declared to belong. There is no doubt that the Claimant served the Defendant meritoriously and received several promotions and commendations for excellent service.

 

The only hiccup that attempted to unruffled her over disciplinary hearing ended in her favour and she exited with unblemished service record as all necessary units of the Defendant inclusive of the Audit & Investigation unit cleared her and signed her Exit Form to complete her dignified exit from the Defendant where she spent her early talent and youthful zeal, starting as Executive Assistant II in January 2002 and left as Assistant Manager (Notch 1) in February 2017. I find no contrary evidence was presented against her smooth and unblemished service record starting with the legacy bank that employed her (FSB International Bank), which later merged with the Defendant, and the Defendant absorbed her and she continued the rest of her banking work-life with the Defendant until her pathway-exit via Retirement.

 

By Exh. CE12,(clause 7.18, page 52), in appreciation for long service and loyalty in continuous service , the Defendant committed to issue Certificate of Service to deserving staff as follows:

·        The bank will present or award to members of staff various token in appreciation of their loyal and continuous service. The award will be made to those who have completed 10 years of service; and each additional 5 years of service thereafter that is 15 years, 20 years of service etc.

·        Certificate of Service will be given to each qualifying staff with the number of years of service inscribed and signed by the Managing Director and the Group head Human Resources,

·        Certificate of Service will be given to each qualifying staff with the number of years of service inscribed and signed by the Managing Director and the Group head Human Resources.

 

 

I find that the exh. CE12 (PPPG) constitutes the condition of service and forms a binding contract between the Defendant and its deserving Employees, such as the Claimant. I maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties.  In U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court can wisely lend its judicial arms to do otherwise. I so hold.

 

In the circumstance, the Relief (d) succeeds. Accordingly, the Defendant is hereby ordered to issue to the Claimant the 15 years long service certificate due to the Claimant in accordance with the contract of service of the Defendant. The said Certificate shall be issued along with payment of the Claimant’s Retirement Benefits.

 

Relief (e) is for an “Order directing the Defendant to refund all interests charged on the Claimant’s account for commercial loans after the retirement date of 22 February 2017”.  Claimant had claimed refund of interest charged on her staff loan after she had exited and the loan deducted from her entitlement. Claimant contended that after she exited the Defendant and upon payment of her gratuity along with her long service award wherein the Defendant has acting on its on policy statement in exh. DE3, that outstanding staff loan would be deducted from the accrued entitlement, the Defendant ought not to continue charging interest on the said loan. She asks for the refund of the charges which she stated to be within the exclusive knowledge of the Defendant.

 

Defendant’s counsel had heavily opposed this relief, mainly contending that it was not pleaded by the Claimant and no materials were presented in support, a contention, the Claimant’s counsel debunked and joined issues with the Defendant’s counsel on the submission. To resolve this controversy, I had reviewed the records particularly the Claimant’s Amended Statement of Facts (forming the pleadings) and the Claimant’s Witness Statement on Oath (forming the evidence- in- chief).

 

 

 

 

 

 

I find that the Claimant’s pleadings on the commercial loans were found in paragraphs 29 and 30 of the Claimant’s Amended Statement of Facts.  Paragraph 29 (a) shows the deduction for prepayment and commercial loan in the sum of N7,090,447.48. Paragraph 30 reads: “Further to the facts in the preceding paragraph, the Claimant further avers that she is entitled to: b. Refund of all interest s charged on her commercial loans after retirement date of 22nd February 2017, which sum is within the Defendant’s exclusive knowledge”. These averments were reproduced in paragraphs 31 and 32 of the Claimant’s Witness Statement on Oath.

 

What more pleadings and materials needed?, even as there were evidence of interest charges in the Claimant’s Statement of Account after she had left and the loan deductions made (exh.DE1). There is no doubt that it is not appropriate for the Defendant to continue to be charging interest on loan that was already deducted and paid fully from the Claimant’s entitlement.

 

Accordingly, the Relief (e) succeeds, to the extent that it is hereby ordered that the Defendant shall refund all interest charges on the Claimant’s loan from the date the loan was paid from the Claimant’s entitlements. Such interest charges shall be computed and paid along with payment of the Claimant’s Retirement Benefits.  I so hold.

 

Relief (f) is for an “Order directing the Defendant to pay to the Claimant the sum of N20,000,000 (Twenty Million Naira) only as the general damages suffered by the Claimant as a result of the unfair treatment meted out to the Claimant by the Defendant and the losses suffered as a result of the Defendant’s refusal to pay the Claimant’s retirement entitlements”.  Defendant’s counsel had opposed this relief contending that the Defendant had no wrong doing that would warrant award of general damages. There is no doubt that award of general damages is premised on wrong done for which compensation is sought by the injured party and the onus to establish wrong doing and link it to the Defendant is that of the Claimant. See: Ahmed v. C.B.N. [2013] 2 NWLR S.C. 524.

 

Nevertheless, unlike claim for Special damages, General damages are awardable per se upon breach, and the amount payable is based on the discretion of the court guided by the inferable estimate of the sum that could as far as money is concerned give reprieve to the injured party.

 

 

 

 

 

 

 

The rational for award of damages in litigated matter has been further elucidated in Shukka v. Abubakar [2012]4NWLR(Pt.1291)CA497, when the court stated: “The basic object of award of damages is to compensate the plaintiff for the damage or injury or loss he had suffered as a result of the action of the defendants, premised on the guiding principle of restitution in interregnum- that is, putting the plaintiff in a position in which he would have been, if he had not suffered the wrong for which he is being compensated”.  In N.A.C.B Ltd v. Achagwa [2010]11 NWLR (Pt.1205) CA 339 @369. Paras. C-D, the court clarified how general damages are determined thus: “One of the characteristics of general damages is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of”.  See also: Odumosu v. A.C.B Ltd (1976)11SC55; Samouris v. Maja [1996]7NWLR (Pt.460)336; Union Bank of Nigeria v. Alhaji Adams Ajabule & Anor (2011) LPELR- 8239(SC).

 

In the instant case, I find the aspect of breach of the terms of the contract of employment by the Defendant in not paying her retirement benefits and associated inconveniences upon due retirement from the Defendant contrary to the provisions of the extant contract of service. On the whole, I find the Defendant liable in breach of the Contract of employment with the Claimant.

Accordingly, Relief (f) succeeds to the extent that it is hereby ordered that the Defendant shall pay to the Claimant the sum of N2, 000,000.00 (two million naira) as general damages for Defendant’ breach of her employment contract and associated inconveniences the Claimant suffered.

For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:

 

1.      Relief (a) succeeds. Accordingly, it is hereby declared that the Defendant’s failure to make any payment with respect to the Claimant’s retirement benefits and February 2017 earned salary is a breach of the Claimant’s contract of employment and all known labour laws and best practices.

 

2.      Relief (b) succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of N 27,805,847.40 (twenty seven million, eight hundred and five thousand, eight hundred and forty seven naira and forty kobo) being the Claimant’s  Retirement Benefit (Cash Benefits as Assistant Manager (Notch 1).

 

 

 

3.      Relief (c) fails, and is hereby refused and dismissed.

 

4.      Relief (d) succeeds. Accordingly, the Defendant is hereby ordered to issue to the Claimant the 15 years long service certificate due to the Claimant in accordance with the contract of service of the Defendant. The said Certificate shall be issued along with payment of the Claimant’s Retirement Benefits.

 

5.      Relief (e) succeeds, to the extent that it is hereby ordered that the Defendant shall refund all interest charges on the Claimant’s loan from the date the loan was paid from the Claimant’s entitlements. Such interest charges shall be computed and paid along with payment of the Claimant’s Retirement Benefits.

 

6.      Relief (f) succeeds to the extent that it is hereby ordered that the Defendant shall pay to the Claimant the sum of N2, 000,000.00 (two million naira) as general damages for Defendant’ breach of her employment contract and associated inconveniences the Claimant suffered.

 

7.      I award N500,000 cost in favour of the Claimant against the Defendant.

 

8.      Monetary payments and compliances in this Judgment shall be paid by the Defendant to the Claimant and complied with by the Defendant, within one (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.

 

Judgment is entered accordingly.

 

 

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HON. JUSTICE N.C.S OGBUANYA

                           JUDGE

                          14/5/19