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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE, A.N UBAKA

 

DATED 29TH SEPTEMBER, 2023                        SUIT NO: NICN/LA/606/2019

 

BETWEEN

 

UZOAMAKA GLORIA EZEANI       ---------           CLAIMANT

 

AND

 

FIDELITY BANK PLC     ---------                            DEFENDANT

REPRESENTATION

Peters O. Agboola for the claimant

S.W. Pepple with Eric Orji for the defendant.

 

JUDGMENT

By a complaint filed by the claimant on the 11th of December, 2019 against the Defendant seeking the following reliefs:

 

1.     A declaration that the defendant forced the claimant to retire in May, 2018 from the employment of the defendant, by letter of 7th May, 2018 having spent over 10 (Ten) years from 2nd January, 2008 till the 7th day of May, 2018 and she is therefore entitled to the End of Service Retirement Benefits as provided for in Clause 7. 20.3 of the defendant’s handbook Policy Manual. The Personnel Policies and Procedure Guide (PPPG) Version 2.8.

 

2.     A declaration that having been forced to voluntarily retire, having spent over ten years in the employment of the defendant by virtue of Clause 7. 20.3 of the defendant’s handbook Policy Manual, and not having completed the repayment of the mortgage loan, the conditions of the grant of the loan would remain same as contained clause 7.13. (a)- other conditions and the defendant can only charge the claimant 3.5% interest rate till the loan would be eventually liquidated.

 

3.     A declaration that the claimant is entitled to be paid the terminal benefits as contained in Clause 7. 20. 3(b) (ii) of the defendant’s Handbook.

 

4.     An order for immediate payment of the sum of N48, 495, 757. 43 (Forty-Eight Million, Four Hundred and Ninety-Five Thousand, Seven hundred and Fifty-Seven Naira, Forty-Three Kobo) being the End of Service Cash benefit due to the Claimant from the Defendant as at the 7th day of May, 2018.

 

 

OR IN ALTERNATIVE TO (4) above.

 

5.     An order for immediate payment of the sum of N48, 495, 757. 43 (Forty-Eight Million, Four Hundred and Ninety-Five Thousand, seven hundred and Fifty-Seven Naira, Forty-Three Kobo) being the End of Service Cash Benefit due to the claimant from the defendant as at the 7th day of May, 2018 less the sum of N22, 127, 830. 22 (Twenty-Two Million, One Hundred and Twenty-Seven Thousand, Eight Hundred and Thirty Naira, twenty-two kobo) being the outstanding mortgage loan advanced to the claimant, as an exit date of 7th day of May, 2018 with interest at the rate of 3.5% per annum, in a manner to that is devoid of double charges, to the time of payment or the time of delivery of the judgment of this court.

 

6.      An order reversing the interest rate of 32% to 3.5% charged and being charged on the account, till anytime thereafter, till judgment and crediting the account of the claimant with the difference.

 

7.     An order directing the defendant to release to the claimant, within 14 days of the delivery of the judgment of this court, all title documents in respect of the mortgage facilities approved and granted the claimant, which are in the custody of the defendant and prepare a duly executed Deed of Release to the claimant.

 

8.     General damages in the sum of N5, 000, 000 (Five Million Naira) only for breach of contract, inconvenience, loss of good will and breach of legitimate expectation, which were all occasioned by the willful default, failure or wanton neglect of the defendant to pay the Retirement Benefits of the claimant despite several demands for the payment of same.

 

9.     Interest on the sum above at the rate of 10% till judgment is delivered and thereafter at the rate of 21% till judgment is liquidated.

 

10.           Cost of the prosecution of this suit at the discretion of the court. 

 

Accompanying the complaint is the claimant’s written statement on oath, list of witnesses and documents to be relied upon on trial dated 9th December 2019 but filed on 11th December, 2019.

                                                                   

In reaction, the Defendant filed an Amended Statement of Defence and Counter-claim, Written Statement on Oath, and list of Documents to be relied on at the trial on the 18th March, 2021 but filed 19th March, 2021. In its counter claim, the defendant/counter claimant claimed as follows:

 

1.     The sum of N21,984,050.26 (Twenty-one million, nine hundred and eighty-four thousand, fifty-naira, twenty-six kobo) being the sum standing against the defendant to the counter claim on the mortgage loan facility granted her by the counter claimant.

 

2.     Interest on the said N21,984,050.26 (Twenty-one million, nine hundred and eighty-four thousand, fifty-naira, twenty-six kobo) at the rate of 32% percent from January, 2020 until judgement and the rate of 10% till final liquidation of the loan.

 

The Claimant’s consequential reply to the Defendant’s Amended Statement of Defence and Defence to counter claim is dated and filed 3rd February, 2022.

 

The summary of the facts pleaded by the claimant is that she was offered employment as Assistant Manager by the Defendant by virtue of a letter of Employment dated the 18th day of December, 2007 which she accepted unconditionally, and resumed at the designated office of the Defendant on the 2nd day of January, 2008; that her employment was confirmed as an Employee of the Defendant with the Designation of an Assistant Manager Notch 2 by virtue of a letter of Confirmation of Appointment dated the 22th day of September, 2008. That she held several positions and worked in different operations and units in the Defendant and that on the 23rd day of April, 2012, the Defendant in review of her performance in the company, promoted her to the grade of Deputy Manager (Notch 1) and a letter was given to her to that respect and attached a letter stating the new annual compensation package; and that a further review of her sterling performance, the Defendant by its letter dated the 27th day of July, 2016, promoted her to the grade of Manager 1 and a letter was given in respect and attached a letter stating the new annual compensation package.

 

That she put in over 10 (ten) years of meritorious and dedicated service to the Defendant's banking business covering central clearing control unit, head Office Control, management of central archives, Internal Audit, investigation of branch audit and several ad hoc assignments, without blemish; that by virtue of Clause 7.13 of the Defendant's Handbook policy manual, The Personnel Policies and Procedure Guide (PPPG), a Manager or any employee who has spent a minimum of five years with the Defendant is entitled to benefit from the Home Ownership Policy of the Defendant at the interest rate of 3.5% per annum and shall be payable on a monthly basis; that by virtue of the same Clause 7,13 of the Handbook, where an employee retires from the Bank, either by voluntary or compulsory retirement before full repayment of the loan, the conditions of the grant will remain as when the loan was granted; that also by virtue of Clause 7.1.13 of the Defendant's Handbook Manual, “early retirement” was also contemplated in the relationship between the parties.

 

That having spent over 5 years as prescribed in the Defendant's handbook manual, she applied and was granted a Status Mortgage facility in 2016 at the rate of 3.5 percent; that by the Letter dated the 10th day of November, 2016, the Defendant offered her a Staff Mortgage Loan in the sum of N27,424,837.44 (Twenty-Seven Million, Four Hundred and Twenty-Four Thousand, Eight Hundred and Thirty-Seven Naira, Forty-Four Kobo) which stated thus

 

“Tenor: 15 years inclusive of one year moratorium.

 

Interest: Currently 3.5% per annum

 

Repayment: Upon the expiration of the moratorium period, repayment shall be over a period of 14 (fourteen) years in equal instalments from your rent entitlements”.

 

That she was made, as a condition for the grant of the Mortgage Loan, to prepare a deed of mortgage in favour of the Defendant, a duly executed deed of assignment, and other documentations, which she complied with; that due to the restructuring exercise in the Defendant's bank, contrary to her legitimate expectations, while she was over 53years at the time of the restructuring , and would have only spent, less than additional 2 years for compulsory retirement from the services of the Defendant, the Chief Human Resources personnel, acting on the instructions of the Defendant invited her to his office, after a telephone conversation on the 5th day of May, 2018 and requested her to put in a Letter of Early Retirement due to the restructuring of the Defendant; that the discussions leading to her early retirement was contained in the handwritten letter dated the 7th day of May, 2018 wherein she, under compulsion, against her wish, was asked to retire, which letter was delivered to the Chief Human Resources and acknowledged same day.

 

In response to her Letter of Retirement, the Defendant maliciously wrote a reply dated the 23rd day of May, 2018 wherein the Defendant titled the letter as "Resignation of Appointment" wherein she was alleged to be in debt of the sum of a certain amount and that the financial obligations would be at the Defendant's Prime Lending Rate, contrary to the terms in the Handbook Manual which refers to employees who have retired, either voluntarily or compulsorily; that in the purported end of service calculation, the Defendant deliberately ignored to compute the end of service benefits to which she is entitled to as provided under Clause 7.20.3 (b) (ii) of the Staff Handbook Manual which regulated the relationship between them. That upon the service of her notice of forced, early Retirement to the Defendant on the 7th day of May, 2018, the Defendant kept to the Terms of the Handbook Manual and  initially for the first few days till it started deducting the interest rate of 3.5% for the Mortgage, till date, even though the Terminal Benefits had not been paid; that she is entitled to the Retirement Benefits captured in Clause 7.20.3 (a), (b) (ii) and (c) of the Handbook Manual; that her mode of disengagement from the service of the Defendant was not RESIGNATION but RETIREMENT; that by virtue of Clause 7.20.3 (b) (ii) of the Staff Handbook, being a Manager at the time of disengagement, she is entitled to cash benefits of Nine (9) Months Basic Salary, Transport, and Housing for each completed year of service.

 

That the basis for the computation of her terminal cash benefits are: the Basic Salary as at May 2018 which was the sum of N670,230.25 (Six Hundred and Seventy Thousand, Two Hundred and Thirty Naira, Twenty-Five Kobo) Housing Allowance of N2,742,483.74 (Two Million, Seven Hundred and Forty Two Thousand, Four Hundred and Eighty Three Naira Seventy-Four Kobo) and Transportation Allowance in the sum of N3,053,387 .00 (Three Million, Fifty Three Thousand, Three Hundred and Eighty Seven Naira). The formula is AB plus AH plus AT; that having spent ten (10) years, five (5) Months (from January 2,2008 to May 7,2018) in the service of the Defendant, her Cash Benefits for End of Service is to be calculated thus: The sum of N670,230.25 (Six Hundred and Seventy Thousand, Two Hundred and Thirty Naira, Twenty-Five Kobo); Housing Allowance of N2,742,483.74 (Two Million, Seven Hundred and Forty-Two Thousand, Four Hundred and Eighty-Three Naira. Seventy-Four Kobo) and Transportation Allowance in the sum of N3,053,387.00 (Three Million, Fifty-Three Thousand, Three Hundred and Eighty-Seven Naira), divided by 12 months multiplied by 9 (Months) and 10 Years Five Months being the total sum of N48,495,757.43 (Forty-Eight Million, Four Hundred and Ninety-Five Thousand, Seven Hundred and Fifty-Seven Naira Forty- Three Kobo).

 

 

That the sum of N48,495,757.43 (Forty-Eight Million. Four Hundred and Ninety-Five Thousand, Seven Hundred and Fifty-Seven Naira Forty-Three Kobo being her End of Service Cash benefit, is unpaid despite several demands, by her letter dated the 8th day of August,2019 she made a demand for the payment of the Terminal benefit, but the Defendant did nothing about the Demand till date; that contrary to the terms of the Handbook Manual that the rate of 3.5% would apply to the Housing Loan for employees who voluntarily retired, and contrary to the state of affairs between herself and the Defendant, the Defendant in violation of the content of the agreement arbitrarily and single-handedly increased the interest rate from 3.5% to 32% and has been debiting her till date.

 

That the sum of N22,127,830.22 (Twenty-Two Million, One Hundred and Twenty-Seven Thousand, Eight Hundred and Thirty Naira, Twenty-Two Kobo) was the outstanding Mortgage Loan advanced to her, as at May, 2018 when she was forced to voluntarily retire from the Defendant bank and that her redundancy allowance in the sum of N7,853,845.63 (Seven Million Eight Hundred and Fifty-Three Thousand, Eight Hundred and Forty Five Naira, Sixty Three Kobo), were liquidated into the mortgage loan account in May, 2018; that the Defendant who made her believe that the interest rate for those who retired shall be 3.5% and that repayment shall be over a period of 15 (Fifteen years) and who continued to maintain the said interest rate on 3.5% for some months after her retirement, is estopped from charging the interest rate at 32% contrary to her legitimate expectation. That she is entitled to the payment of her terminal benefits and the Defendant can only charge 3.5% interest rate on the loan for a period of 15 years and also entitled to a reversal of the interest rate from 32% to 3.5% for the months for which she has been wrongly debited.

 

In her consequential reply to the defendant’s statement of defence and counter claim, CW stated that by the relevant provisions of the Defendant's Staff Handbook Manual, there are differences between Resignation and Retirement from service and that Resignation is regulated by clauses 3.16.1 and 3.16.2 of the Defendant's Handbook Manual, in that:

           

a.      an employee who resigns his employment "should submit in writing his resignation through the Group! Division or Directorate to HR (Human Resources).

b.     If the employee was a senior staff, a recommendation for acceptance or rejection of his resignation is forwarded to HR for action.

c.      HR shall then prepare a letter specifying the separation terms.

d.     A confirmed staff should give notice period of one month while management staff and a Senior Manager and above should give three months' notice.

 

That the conditions stated above do not apply to a member of staff who retired voluntarily (upon working for a period of 15 years) or compulsorily (upon the attainment of age 55) as provided under clause 7.20.2 of the Defendant's Staff Book Manual; that, she was 53 years at the time she was asked to put in her letter of early retirement dated 7th day of May, 2018, against her wish and that as at that time she could have only spent, less than additional 2 years for compulsory retirement from the services of the Defendant had it been she was not forced to write the letter; that there was no reason she would term her letter as "resignation" when at that date, she had in fact worked for the Defendant for over 10 (ten) years and had two years to reach the age of 55years to qualify under compulsory retirement.

 

That the emails or internal memorandum of 24/12/2014 or 23/12/2016 or any date whatsoever did not abrogate the contents of the Defendant's Staff Handbook Manual Version 2.8 created June 2010 and reviewed in December, 2015 which was the only collateral agreement that regulated the relationship between herself and the Defendant till her exit from the Defendant's company and that even though by the concluding paragraph of the Defendant's Staff Handbook Manual Version 2.8, it is the Human Resources Division that is responsible for the implementation, administration, advising the review and updating of the Defendant's Staff Handbook Manual version 2.8, none has been reviewed and updated to override the provisions of the extant one, version 2.8 which herself and the Defendant knew as the document that regulated their relationship. That the Defendant is estopped from relying on the email captioned as the Defendant's Internal Memorandum dated the 24th day of December, 2014 from evading its contractual obligations by relying on the Pension Reform Act 2004 because of the following:

 

1.     The Pension Reform Act 2004 had its commencement date on the 25th day of June, 2004.

 

2.     The Defendant represented to her, and she relied on the said representations, that despite the commencement of the said Pension Reform Act, on the 25th day of June, 2004 her pension scheme would still be regulated by the Defendant's Staff Handbook and this state of affairs continued till the email of 24th day of December, 2014, which was more than 10 years from the commencement of the Pension Reforms Act 2004.

 

3.     The Pensions Reform Act 2014 which repealed the Pension Reform Act 2004 did not abrogate End of Service entitlements (which is the subject matter of her reliefs) and by the provisions of Section 4 (4) (a) of the Pensions Reforms Act 2014 "an employer may agree on the payment of additional benefits to the employment upon retirement" which agreement is contained in Clause 7,20. 3 (b) (ii) of the Defendant's Staff Handbook.

 

4.     The Defendant's Staff Handbook Manual, was reviewed and the relevant provision still maintained and retained in December, 2015 after the commencement of the Pensions Reform Act 2004 and the Pensions Reforms Act 2014 which repealed the Pensions Reform Act 2004.

 

That the Defendant is estopped from relying on the email captioned as the Defendant's Internal Memorandum dated the 23 December, 2016 from the Defendant titled; CESSATION OF GRATUITY AND RETIREMENT BENEFITS from evading its contractual obligations by relying on the Pension Reform Act 2004 because of the following:

 

1.     The Pension Reform Act 2004 had its commencement date on the 25th day of June, 2004.

 

2.     The Defendant represented to her, despite the commencement of the said Pension Reform Act, on the 25th day of June, 2004 that her pension scheme and payment of retirement benefits (which is the subject of her reliefs) would still be regulated by the Defendant's Staff Handbook and this state of affairs continued till the email of 23rd day of December, 2016, which was more than 12 years from the commencement of the Pension Reforms Act 2004.

 

3.     The Pensions Reform Act 2014 which repealed the Pension Reform Act 2004 did not abrogate End Service entitlements (which is the subject matter of her reliefs) and by the provisions of Section 4 (4) (a) of the Pensions Reforms Act 2014 "an employer may agree on the payment of additional benefits to the employment upon retirement" which agreement is contained in Clause 7,20. 3 (b) (ii) of the Defendant's Staff Handbook.

 

4.     The Defendant's Staff Handbook Manual, was reviewed and the relevant provision still maintained and retained in December, 2015 after the commencement of the Pensions Reform Act 2004 and the Pensions Reforms Act 2014 which repealed the Pensions Reform Act 2004.

 

5.     As at 23 December, 2016, when the Internal Memorandum of the Defendant was made, she had spent 8 years in the employment of the Defendant. No money was paid to her, in accordance to the Internal Memorandum to represent the Terminal Benefits for having worked for the Defendant for such a period of time.

 

That she is not aware (because there was none) of any change in the payment of any retirement benefits which abrogated the content of the Defendant's Staff Handbook and there was nothing in the mails which stated that the retirement benefits, which had not been paid, which was not paid at any time, and which is the subject of this claim, should be used to liquidate her indebtedness on the mortgage; that the defendant’s PPPG Version 3.1 is an afterthought and was not pleaded in the Original Statement of Defense and is the sole reason for this amendment. and therefore, cannot be said to be what was regulating the relationship between the Defendant and her; that her letter dated the 8th day of August, 2019 not 6th of August 2018 was not an afterthought as alleged by the Defendant, but rather it was a letter sent to the Defendant after she had made series of demands through email correspondence for her entitlement and also her demand for the Management of the Defendant to rectify the error of heading its letter dated the 23rd day of May. 2018 as "RESIGNATION OF APPOINTMENT" turned to deaf ears.

 

 

That it is untrue that the Defendant has paid her the sum of N48,495,757.43 (Forty-Eight Million, Four Hundred and Ninety-Five Thousand, Seven Hundred and Fifty-­Seven Naira and Forty-Three kobo) or any sum at all being the Retirement benefits due to her, as a way of liquidating her mortgage loan; that if the honourable court grants the reliefs claimed, and orders the Defendant to pay her retirement allowances, after the deduction of the outstanding mortgage loan from the total, retirement benefits, she is entitled to the documents in possession of the Defendant; that she has suffered damages arising from the breach of contract, inconveniences, loss of good will and breach of legitimate expectation and that her claims are not malicious, frivolous or amounting to gold-digging.

 

Under cross examination by the defendants’ counsel, CW stated that the defendant has a right to review the Personnel Policies and Procedure Guide (PPPG) but that she must be aware of same.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed her case.

 

The defendant opened its defence by calling its sole witness, Franklin Adaghubu, the Manager of the defendant’s Human Resources wherein he adopted his witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that the claimant by a letter dated May 7th, 2018 resigned her appointment with the defendant notwithstanding that she termed her letter ‘LETTER OF EARLY RETIREMENT’ and that the claimant was never forced by the defendant to resign her appointment but resigned at her own volition; that sometimes in December, 2014 the management of the defendant changed its Policy on Gratuity and informed all members of the staff including the claimant through an internal memorandum dated 24th December, 2014 which was quite explicit and to the effect that gratuity scheme remains operational up to December 31st, 2015 and will no longer operate with effect from January 1st, 2016. In the same vein, that by 15th December, 2016 voluntary retirement scheme was also abolished. Therefore, a staff can only retire compulsorily on attainment of the age of 55 years. In other words, a staff that has not attained 55 years can only resign and not retire. That the changes were put in the defendant's PPPG version 3.1 reviewed in 2017 and that the PPPG is reviewed annually.

 

That the claimant while in the employment of the defendant/counter claimant was granted a loan facility in the sum of N27,424,837.44 through an offer letter dated November 10, 2016; that the claimant has fully utilized the loan applying same to purchase of the property known as No 9, Heritage Garden, Bridgegate Estate, Agungi, Lagos and has not liquidated the loan facility and is still indebted to the counter claimant/defendant in the sum of N21,984, 050.26 (Twenty- one million, nine hundred and eighty-four thousand, and fifty naira, twenty-six kobo) as shown in her statement of account; that despite receipt of the counter claimant/defendant’s letter of demand, the defendant to the counter claim refused, failed and or neglected to repay the loan.

 

That the claimant was fully aware that by the time she exited from the defendant's employment, the Policy of the defendant whereby she could have been entitled to some financial benefits by way of gratuity and retirement benefits after putting some years was no more applicable; that under the new policy of the defendant, which is within the full knowledge of the claimant, where a staff who has been granted a staff loan resigns, such staff after being advised of his financial status with the bank, is given three (3) months within which to pay down all sums standing against him/her on the loan, failing which the prevailing market rate of 32% or such other rate as may be determined by the market shall apply to such loan facility.

 

That the claimant was granted staff loan while in the employment of the defendant on November 10, 2016. However, in May, 2018 the claimant indicated her interest to resign her appointment but maliciously tagged the letter 'Letter of Early Retirement' and that upon receipt of the letter, the defendant wrote the claimant through a letter dated May 23, 2018 advising her of her financial position with the bank; that after tendering her resignation letter, the defendant wrote the claimant by letter dated May 23, 2018 informing her that the sum standing against the claimant on the mortgage facility was N22,127,830.22 which she was advised to pay down within three months but failed to repay the loan facility within the time allowed, consequently commercial interest of 32% started applying to the loan facility.; that the claimant's debit to the defendant on the loan as January 23, 2020 is in the sum of N21,984.050.26. That the claimant's letter of 6th August, 2018 addressed to the defendant was an afterthought with the sole aim to blackmail and stampede the defendant to doing a policy somersault.

 

That the claimant is not entitled to the sum of N48,495,757.43 as an end of year service cash payment as whatever sum that is due and payable to her had been duly paid to her by way of applying same to the liquidation of her mortgage loan with the defendant; that the interest due and chargeable on the Mortgage Loan Facility of the claimant is market rate of 32% as the claimant is no more in the employ of the defendant and did not pay down on the facility within the time often allowed an ex-staff to pay down; that the property with which the loan facility was used in purchasing is mortgaged to the defendant and the claimant having not liquidated the mortgage is not entitled to have the documents in possession of the defendant until the loan facility is fully liquidated and that the claimant has not suffered any damage either arising from breach of contract, inconveniences, loss of goodwill and breach of legitimate expectation in that whatever entitlement that is due to the claimant on her willful exist from the defendant bank was duly paid to her.

 

Under cross examination by the claimant’s counsel, DW stated that defendant’s PPPG 2.8 was not the regulating policy as at the time the claimant left; that not in all cases that am employee is expected to pay in lieu of notice which could be at the discretion of the defendant.

 

There was no re-examination of DW by the defendant’s counsel. The defendant thereafter closed its case.

 

The parties were directed to file their final written addresses. The defendant’s final written address is dated and filed 6th June, 2023 while the claimant’s final written address is dated 4th July, 2023 but filed 4th July, 2023. The defendant’s Reply on point of law is dated and filed 21st July, 2023.

 

Learned counsel on behalf of the defendant formulated three (3) issues for the court’s determination viz:

 

1.     Whether as at May, 2018 the defendant still has gratuity and voluntary retirement policy and if any staff of the defendant who has not attained the age of 55 years can voluntarily retire not withstanding whatever number of years he may have worked for the defendant;

 

2.     Whether the claimant retired or resigned her appointment with the defendant;

 

3.     Consequent upon the answer above, whether the claimant is entitled to the reliefs claimed in this action.

 

Before delving into the formulated issues, the defendant’s counsel raised an objection on the admissibility of exhibit UE 19 (a 15-page record of proceedings in suit No NICN/LA/597/2019 before Hon. Justice I.G. Nweneka) and contended that the said document was not pleaded by either party and therefore denied the defendant the opportunity to react to the said document; that it is trite that documents not pleaded or facts not pleaded that may lead to such documents being put in evidence should not be received in evidence.

 

Now to the issues formulated; It is the defendant’s counsel submission on issue (1) that the policy on gratuitous payment and voluntary retirement of the defendant has been abolished at the time the claimant left the employment of the defendant; therefore, the claimant would not and could not have voluntarily retired and therefore not entitled to any financial benefit on any of the grounds.

 

On issue two (2); counsel submitted that the PPPG version 3.1 exhibit UE 18 has no provision for voluntary retirement but has provision for resignation and other means of disengagement from employment; that the claimant would not have retired but can only resign; therefore, tagging her letter 'Early retirement' is of no moment; that to sustain this action, the claimant has to show that she has fulfilled all the conditions as contained in the applicable defendant's PPPG and that the defendant has fallen short of any provision of the said PPPG Version 3.1, for it is trite law that he who asserts must prove.

 

Continuing, counsel submitted that assuming but not conceding that the claimant retired, that up and until 23rd December, 2016 when the voluntary retirement policy was applicable, the claimant did not retire or offered to retire and was refused as there is still no evidence that the claimant requested to be paid retirement benefit even on prorated bases. That the claimant is estopped from making claims bordering on an otiose defendant's Personal Policies and Procedure Guide version 2.8 - exhibit UE5. He cited the case of Ughutevbe vs. Shonowo (2004)16 NWLR Pt 899, page 300 and urge the honourable court to so hold.

 

That assuming but not conceding that PPPG version 2.8 which the claimant tendered is still operative, the claimant still would not have been entitled to any benefits; that by a simple arithmetic calculation, the claimant has put in only 10 years and not 15 years for her to be entitled.

 

On issue three (3); counsel submitted that the claimant is not entitled to any declarative reliefs (1-3) as she has not shown how she is entitled to any of same. He cited the case of Ecobank Plc vs. Andrew Monye (2022) 4 NWLR Pt 1820 pg. 347 @ 363-364 and urged the honourable court to so hold.

 

On reliefs 4 &5; the defendant’s counsel submitted that the defendant has calculated and paid the claimant’s her End of Service.

 

On relief 6; the defendant’s counsel submitted that no facts were placed before the honourable court to grant this relief; that under clause 7.13 of PPPG version 2.8 - exhibit UE5 but now in 7.12 of PPPG version 3.1 - exhibit UE18, where a staff of the defendant who has loan facility leaves the employment of the defendant, no matter the circumstances, after a given period, the interest shall revert to commercial rate. This term of granting loan was made know to the claimant. He urged the honourable court to refuse this relief and allow the loan to run at commercial rate.

 

On reliefs 6 & 7; counsel submitted that there is no evidence before the honourable court to warrant grant of the monetary reliefs sought by this claimant; that it is trite that where a party fails to establish the substance of his claims, the claims fail and the case should be dismissed. He referred the honourable court to Section131 Evidence Act and cited the case of Iyere v. BFFM limited (2001) FWLR (pt 37) 1166.

 

On the counter claim; counsel submitted that facts admitted need no further proof as the facts as to the loan was not disputed by the claimant/defendant to the counterclaim but was fully admitted by the claimant/defendant to the counter claimant by her pleadings in the consequential reply to the amended statement of defence of being indebted to the counter claimant but predicated the payment of the facility on the unsubstantiated entitlement of retirement benefit. He cited the case of Sunday Temile & Ors vs. Jemide Awani (2001) 12 NWLR Pt 728 Page 726 and urged the honourable court to grant the relief of the defendant/counter claimant.

 

Learned counsel on behalf of the claimant formulated three (2) issues for the court’s determination viz:

 

1.     Whether in view of the pleadings and evidence before the Court, it could be said that the Claimant retired or resigned his appointment from the employment of the Defendant.

 

2.     Whether in view of the pleadings and evidence before the Court, the Claimant is entitled to the reliefs sought?

 

Before delving into the claimant’s above formulated issues, counsel objected to the admissibility of exhibits UE12, UE13, UE16 and UE on the ground that the documents are computer generated and the certificate of document dated 14th February 2020 in accordance with section 84 of the Evidence Act 2011 did not comply with the essential provisions of the requirements of a certificate under section 84 of the Evidence Act. He cited the case of

Unical & Ors v. Effiong & Ors (2019) LPELR-47976 (CA) (Pp. 36-39 paras. F) and urged the honourable court to expunge the above listed computer-generated documents from the records of this Court for failure of the attached certificate to state the particulars of the device used in the production of the said exhibits.

 

On exhibit UE18; the claimant’s counsel submitted that exhibit EU 5, which is the version 2.8 tendered by the Claimant and Exhibit EU 18 tendered by the Defendant, the honourable court lord would find in both documents, the name of Nnamdi Okonkwo Managing Director/Chief Executive Officer and that while Exhibit EU 5 was duly signed by the said Nnamdi Okonkwo, it was not signed in exhibit EU 18; that the evidence of DW on the veracity or genuineness of Exhibit UE 18 is in doubt and materially conflicting. He cited the case of Adu v. Gbadamosi (2009) 6 NWLR (PT. 1136) 110 AT 124 paras B-D and urged the honourable court to discountenance same.

 

Now on the issues formulated, it is the claimant’s counsel submission on issue (1) that under cross examination, DW stated that the Claimant was a senior manager, she did not give three months' notice nor paid three months' salaries in lieu of notice; that if the claimant had resigned without fulfilling these conditions, the Defendant would have rejected the resignation and also that the Defendant did not give the Claimant a letter specifying the separation terms as contained in clause 3.16.1 of exhibit EU5. He urged the honourable court to resolve this issue in favour of the Claimant and hold that the Claimant having been forced to resign is deemed, by the agreement of parties to have, at least voluntarily retired as she would have spent minimum of 15 years of unbroken service in the employment of the Defendant by virtue of Clause 7.20. 2 (a) of exhibit EU5) and therefore entitled to the reliefs in clause 7.20. 3 OR she would have attached the compulsory retirement age of 55 because the Claimant was 53 years at the time of the forced retirement.

 

On issue two (2); counsel submitted that it is submitted that, by virtue of Clause 7.20.3 of exhibit DE 5, specifically by virtue of Clause 7.20.3 (b) (ii), the claimant being a Senior Manager 3, at the time of disengagement, is entitled to cash benefits of Nine (9) Months Basic Salary, Transport, and Housing for each completed year of service; that the Defendant did not deny or join issues with the mode of calculation of the claimant’s terminal cash benefits or that same was paid and evidence of its payment shown before the honourable court. That it is trite that what is not denied is deemed admitted.

 

That both parties agree that the contents of exhibit UE 5 would regulate the mortgage loan agreement and the parties have respected the sanctity of that agreement and the Defendant is therefore estopped from reneging on that agreement. He cited the case of Attornev-General. Rivers State v. Attorney-General, Akwa Ibom State (2011) 3 MJSC 1 at 131.

 

On the claimant’s claim for damages; counsel submitted that the claim for general damages is such that this honourable court should grant in the peculiar circumstance of this suit.

 

On the defendant’s counter claim; the claimant’s counsel submitted that the counterclaimant who alleged that the debt of the Claimant was N21,984,050.26 did not plead or show any evidence how it arrived at same. There was no evidence or pleading that the commercial rate on any loan was 32%. There was no regulation or any banking monetary policy that was pleaded to show that the interest rate would jump from 3.5% to 32%; that even exhibit EU 18 does not provide for any commercial interest rate at 32%. There was nothing in the letter of offer for the loan dated 10th November, 2010, there was no pleading or evidence before the honourable court wherein the Defendant/Counter-claimant informed the Claimant that the interest rate on the mortgage loan has moved from the agreed 3.2% to 32%. In fact, there was no letter of demand for the repayment of any loan. He cited the case of Solanke & Ors v. Fasina & Ors (2012) LPELR 56564 (Pp. 38-39 paras. C and urged the honourable court to dismiss the counterclaim as being-bereft of any substance and not supported by any evidence before the honourable Court.

 

On reply of point of law; the defendant’s counsel submitted that all documents computer generated are all primary documents as such documents are derived from information stored in the computer and therefore requires no foundation to tender same; that governs admissibility of document is relevance; that whatever defect by way of inelegant drafting found in the certificate is corrected by the oral testimony of the defendant’s witness.

 

On exhibit UE18; counsel submitted that the defendant's PPPG version 3.1 was not made during the pendency of this action; that the version 2.8 tendered by the claimant has provision for the review of the PPPG by the defendant; that the review that generated version 3.1 was done in 2017 as was captured on the front page of the version. The claimant instituted this action in 2019; therefore, it has been created before the claimant instituted this action.

 

With respect to signing of the PPPG, counsel argued that it is a policy guideline generated to give information to interested persons; that being a Policy guideline is ordinarily not signed by any individual. Inclusion of the name of Nnamdi Okonkwo in version 2.8 of the PPPG is neither here nor there.

 

That the claimant reliance on exhibit UE19 to impeach the veracity of DW’s testimony does not meet the requirement of admissibility; that the document was not pleaded and the motion to bring same into this matter was dismissed, therefore, the document goes to no issue as the document never existed as far as this matter is concerned.

 

In conclusion; counsel urged the honourable court to depart from the extant rules of evidence to do substantial justice in this matter; that the documents being challenged are relevant and it would be unjust, or inequitable and border on technicality to defeat the cause of justice to expunge the documents which are relevant. He referred the honourable court to Section 12(2)(b) of the National Industrial Act, 2006 and Order 5 Rule 6(2) of the National Industrial Court Civil Procedure Rules, 2017, Order 5 Rule 6 (2).

 

I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final addresses in this matter. The issues for determination are:

 

1.     Whether the claimant is entitled to the reliefs claimed.

2.     Whether the defendant is entitled to its counterclaim

 

A summary of the facts herein will reveal that the claimant was in the employment of the defendant for which she held the post of manager of a branch in the defendant. Thereafter she was promoted and worked in different operations unit and became the deputy manager notch 1 on the 23rd of April 2012, then in 2016 she was promoted to the grade of manager 1.  some time in 2016 the claimant was given staff mortgage loan to purchase a property and thereafter she retired and deems the retirement as early retirement based on the defendant’s instruction to do so. The claimant’s contention is that she was forced to retire but the defendant termed same as resignation and for the mortgage loan to remain at the 3.5 % interest rate as that was the rate the loan was granted and is to run for 20 years. The defendant denies same and argue that the claimant resigned as the policy for early retirement had changed and the clause in the mortgage loan agreement provided for variation when an employee’s employment is determined. It averred that it properly and legitimately invoked its right to determine the relationship. It further averred that a legal mortgage was created when the claimant was given the mortgage loan upon which she deposited the mortgage deed on completion of documentation.

 

The parties raised preliminary points on the admissibility and/or evidential value of exhibits UE19 and all the documents tendered by the defendant. The defendant has raised objection to the admissibility of exhibit UE19 a 15-page record of proceedings in a different case. The defendant’s further contention is that it is neither pleaded and has no opportunity to react to same and prayed that same be discountenanced. in Abiodun v FRN 2018 LPELR 43838 SC, the Apex court held thus on whether a court is entitled to look into any record in its possession and held that the court is entitled to look into any document in its record and make use of it in order to arrive at a just decision. however, in this case the claimant tendered proceedings from another court citing that the defendant is same with the one before the court. The pertinent question that arises therefore is whether this court can come to a conclusion one way or the other on exhibits which it did not see as the proceeding which the claimant is relying on is on the cross examination of a witness (CW) in another case. In such a situation it will not do justice to both parties as the documents on which the witness is being examined is not before the court and I do not see how the response of a witness in a completely different case will help the case of the claimant in this case. That the claimant responded to such question does not make the answers to such question the position for the court to take or follow in determining the issues between the parties. I accordingly discountenance the said document. The claimant’s counsel has objected to all the documents tendered by the defendant citing that the conditions for the admissibility of the documents being computer generated document has not been complied with pursuant to section 84 of the Evidence Act; that the documents are secondary evidence as no proper foundation was laid on the whereabouts of the original documents which DW admitted is with the defendant. He therefore contended that no weight should be attached to the documents and same should be expunged. This court is bound by the Evidence Act but may depart from same in the interest of justice as per Order 12 of the National Industrial Court Act 2006, which the court will in the instant case apply and depart in the interest of justice. The second objection is that exhibit UE18 which is the defendant’s PPGE policy version 3.1 should be expunged from the record as same was not listed in the list of documents dated 18th February 2020. The defendant amended its process on the 19th of March 2021 and the claimant filed a consequential reply to the amended statement of defense on the 16th of September 2021. It means the claimant is aware of the defendant’s amended process and cannot turn around to argue that such process is now incompetent. The law is trite that after an amendment all documents which stood before the court ceases to be after the amendment. In Mobil Producing Nigeria Unltd v Etukudo (2011) LPELR – 4494(CA) where the court held as follows:

 

The effect of an amendment is that once a pleading is amended, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried.

 

Going further the claimant’s counsel submit that exhibit EU18 was procured during the pendency of this suit and same not signed by any author. Exhibit EU 18 is the personnel policies and procedure Guide (PPPG) version 3.1. If the court is to look into whether it was procured during the pendency of this suit, that might be delving into one of the major issues raised that needs to be resolved for it is on the resolution that the claimant’s case fails or succeeds. It is not the law that the document ought to be signed for it to be admissible as employee’s handbook is not usually signed so the issue raised is hereby discountenanced.

 

I now proceed to the merits of the case. The documents annexed to the processes of the parties are hereby identified for the purposes of this judgment as follows letter of Employment (exhibit UE1), Promotion letter (exhibit UE3), PPPG version 2.8 (exhibit UE5), staff mortgage loan (exhibit UE6), letter of early retirement (exhibit EU7), Re Resignation of appointment (UE8), Request for Retirement benefits (exhibit UE9), End of service statement (exhibit UE10). The defendant attached these documents to their processes email (exhibit UE12 & 13), Personnel policies and procedure manual (PPG) version 3.1).

 

The claimant in this case was employed by the defendant via a letter dated 18th September 2007 as Assistant manager and the PPPG version 2.8 was created in 2010 with a review in December 2015 which forms part of the contract of employment between the parties. Now the claimant tendered exhibit EU7 tendered as exhibit EU 14.  The letter is captioned Letter of Early Retirement. Below is part of exhibit EU7:

 

LETTER OF EARLY RETIREMENT

 

 Sequel to the telephone invitation followed by the discussion in your office on Saturday 5th May 2018 wherein you requested for my early retirement as directed by management, I hereby tender my letter for early retirement.

 

The defendant responded and it produced exhibit EU 8 and same is titled

 

RE: RESIGNATION OF APPOINTMENT

 

Sequel to your resignation from fidelity bank plc effective May 2018, please find attached the breakdown of your End of service statement.

 

In the PPPG version 2.8 there is provision for normal or early retirement as provided in clause 7.1.13 whereas in the PPPG VERSION 3.1 of the defendant’s policy same was not included. the defendant has pleaded the last portion of the guide that the defendant is entitled to amend the policy from time to time. The clause here is that the employee must be notified of the review of same. However, the claimant has not denied the receipt of the memo written by the defendant.

 

The main issue now is did the claimant resign or was she forced to retire as stated in her letter of retirement? The first point of call is that in the defendant’s response, no mention was made of the use of the word retirement but wrote a letter based on resignation. There is absolute right to resign and resignation from employment is by giving of the required length of notice or payment in lieu of notice. See INEC & 7 Ors v Orji & Ors (2009) LPELR -4320 (CA).

 

It is the defendant’s contention that the PPPG reviewed in 2017 governs the claimant’s employment as that is the latest reviewed copy of the PPPG. The claimant is not claiming for wrongful termination but that the employee handbook upon which her determination from the defendant is based on is not applicable to her. same is averred in paragraph 4(c) and (d) of the amended statement of defense wherein the defendant denies the paragraph partly and submit that the claimant’s employment with the defendant has been guided by the new memo sent on the 24th December 2014. In the consideration of whether the employer is allowed to alter the conditions of service between the parties but the employee must be notified of the change in the employment contract. The principle of law governing contract of employment is akin to that of other contractual obligations is that parties have agreed to, be bound in their relationship by written agreements, such as contract must be governed by the terms of the contract. see P.A.N.v Oje (1977) 11 NWLR (pt 530) 625 CA.

 

The thrust of the claimant’s claim is that the PPPG version 2.8 being the defendant’s handbook is the document governing her relationship with the defendant as that is the only available handbook when her employment was determined. An employee who resigns is expected by the terms of contract to give one month notice of officer cadre or three months’ notice in case of management staff of and 3 months basic in lieu of notice for management staff of the grade of AGM and above.  In exhibit UE18 tendered by the defendant has no provision for resignation, be that as it may the claimant rather than pay to the defendant salary in lieu of notice was paid her full entitlement as per exhibit UE 10 shows the claimant did not give adequate notice and neither paid for same rather, she was paid her full entitlement. This calls to question the issue of being forced to resign. I find and hold that the claimant was forced to resign her employment with the defendant though the defendant denied same in paragraph 3 of the amended statement of defence without more but did not deny the meeting with the claimant wherein she was instructed to tender her letter bringing her employment to an end.   

 

The claimant acknowledged payment of part of her entitlement paid to her by the defendant but stated that based on the PPPG version 2.8 with 2015 amendment (Exhibit EU8) she was not paid other entitlements like gratuity which did not replace the pension of what she is entitled. The defendant’s response is that the claimant received the email sent as exhibit UE12 & UE 13 which removed the reliance on gratuity which had hitherto been part of the claimant’s entitlement and same replaced by the new pension reform in place.

 

In determining where two conditions of service exists on which one governs employment the court in E.C.W.A V DELE (2004) 10 FWLR (pt 230) 297 held

where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination of appointment.

 

To hold that it is the one applicable at the time of appointment will mean that if the amended one introduces benefits such as improved conditions of service, which ought to be the case, the employee who was employed before it comes into effect will not take benefit of the same.  On the contention of the defendant’s that the sequence of review is a stated and urged the court to accept the 2017 PPPG, manual as a mail was sent and same acknowledged by the claimant. The claimant is relying on the original statement of defense and wants the court to reject the amended statement of defense as that is the only reason for the amendment. The claimant had the opportunity and responded in the consequential reply to the statement of defense. While still on the PPPG version 2.8, the claimant in paragraphs 15, 17, 18, and 23 of the consequential Reply to the amended defense enumerated the following reasons on why the version 2.8 of the PPPG is binding on the parties. The first reason is that she did not receive the emails, an afterthought, was not in use during the period of her employment and in all the version 3.1 was not signed by the MD/CEO. it is not necessary for the employee handbook to be signed, moreover, if the claimant stated that she did not receive the email, what is the mode of communication in the office? The claimant has not told the court as she testified under cross examination that email is one of the means of communication and that the other means is through meeting. Claimant further testified that what is communicated through meetings is training on the job and sharing of responsibilities. I find and hold that the claimant was duly notified, received and is aware of all emails sent on the entitlements due to all employees as the MD in exhibit UE13 clearly outlined the new entitlement on payment to all staff.   

  

Accordingly, I hold that while the claimant is aware by virtue of the emails sent to all staff on the cessation of Gratuity and retirement benefits, she was forced to resign and is entitled to damages.

 

I now turn to the defendant’s counterclaim under which the defendant is praying for N21,984,050 and interest in favor of the defendant / counterclaimant. The submission of the claimant is that she was offered a staff mortgage loan (paragraph 15) of the statement of fact and that the provisions provide for tenor of 15 years at an interest of 3.5%. The contention of the defendant is that the interest on the loan has become a commercial one bringing it to 32%. In its defence on the interest rate to revert to commercial rate, the defendant argued that the mortgage loan was a staff loan and one of the conditions in the mortgage agreement is that upon disengagement from the defendant’s services, the claimant is expected to repay all outstanding sum or alternatively the defendant can convert the interest on such loan to the prevailing commercial rate. Nonetheless the argument of the claimant in the final address is that the terms of the loan is such that provides for 3%- and 14-years tenor and same tied to her salary as her services was withdrawn prematurely. The claimant has come up with various reasons as to why the interest rate should remain at 3 % as against the commercial rate. This mortgage facility was willingly taken and signed as the claimant is no longer a staff of the defendant, it follows that the condition under other conditions on page 2 of exhibit UE 6 will apply which is

 

currently 3.5 % per annum subject to changes as may be determined by Fidelity.

 

Then it is equally stated that

 

upon your retirement from the services of fidelity before full liquidation of the facility, the facility shall run under the above stated terms and conditions.

 

The claimant testified acknowledging that she took a loan from the defendant and that she is still indebted to the bank.  To the claimant having lost her job by retirement, she could not absorb the prevailing commercial rate and would want the 3.5% interest rate to remain. This is contrary to the condition agreed upon and in consideration of which the defendant provided the loan. See the unreported judgment of this court in Oyelami v Standard Chartered Bank in suit No NICN/LA/571/2014 delivered on the 3rd of January 2019. She also acknowledged utilizing the loan to purchase property known as No 9 Heritage Garden, Bridgegate Estate, Argungi Lagos. The law is that facts admitted need no further proof. The claimant’s employment was determined in 2018. The defendants then referred to the mortgage facility and the proviso contained in exhibit UE6 which provides ‘’   interest – currently 3.5 % per annum subject to changes as may be determined by Fidelity. This means the defendant can change the rate of interest and the claimant signed off on this agreement contained in exhibit UE6.  The critical question is did the claimant not envisage a situation of termination as she knew the employment was a mater/ servant relationship. The position of the law is that where there is agreement between the parties which is the subject of the dispute before the court, have been reduced to writing, by provision of section 131 (1) of the evidence Act cannot be heard to plead terms and conditions outside the written agreements he entered in respect of the loan. The issue is resolved against the claimant. My holding therefore is that the relief for the mortgage to remain at staff rate of 3.5 % fails as parties are bound by the agreement willingly entered into.  See Agrovet Sincho Pham Ltd & Anor v Dahiru 7 Ors (2013) LPELR- 20364 (CA), Hydro Tech (Nig) Ltd & Anor v Leadway Assurance Co Ltd & Ors (2016) LPELR - 40146 (CA) UBA v Tarzan Motors Ltd.

 

That she took a mortgage loan is not in dispute.   I am accordingly satisfied that the   defendant has established its counterclaim for the sum of N21,984,050 in terms of counterclaim and I so hold.

 

 

On the whole and for the avoidance of doubt, I make the following orders.

 

1.     The defendant is ordered to pay the claimant general damages of 6 months’ salary for the forced resignation.

 

2.     The claimant is to pay the defendant sum of N21, 984, 050 being the mortgage loan given to the claimant.

 

3.     Each party is to bear its cost.

 

4.     All sums are to be paid within 60 days failing which it will attract interest of 10 % per annum until the sums are fully paid.

 

Judgment is entered accordingly.

 

 

HON. JUSTICE A.N. UBAKA

JUDGE