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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: TUESDAY DECEMBER 2, 2025   SUIT NO: NICN/EN/40/2021

 

BETWEEN:

OKEY PETER ABOAJA…………………….....................CLAIMANT

 

AND

 

ECOBANK NIGERIA PLC……...………………………..DEFENDANT

 

APPEARANCES:

  1. OSITA ENWE - FOR THE CLAIMANT.
  2. NO REPRESENATION - FOR THE DEFENDANT.

 

JUDGMENT

 

INTRODUCTION

            ORIGINATING SUMMONS [OS] commenced this suit Dec 1, 2021 along with Affidavit in Support [AS] and Written Address [WA]. The following questions were submitted for the determination of the OS:

  1. Whether from the construction of defendant’s letter dated 29.06.2021, signed by its Adekunle Adewuyi (head of human resources), claimant was not an employee of the defendant for 7 (seven) years and 8 (eight) months before the defendant validly terminated claimant’s employment on 01.06.2016. [sic] 
  2. Whether from the interpretation of Clauses 10.8.2; 10.8.3; 11.2.2; and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, the defendant did not create an exception to gratuity scheme and payments clauses 10.8.2 and 10.8.3 by virtue of Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016. [sic]
  3. Whether the claimant’s duration of employment with the defendant for the period of 7 (seven) years and 8 (eight) months should not be aggregated or approximated to 8 (eight) years of employment under the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016. [sic]
  4.  Whether the claimant is not entitled to gratuity payment under the gratuity scheme pursuant to clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, at the sum of N6,400,000 (six million, four hundred thousand Naira) only. [sic]
  5. ALTERNATIVELY, whether the claimant’s duration of employment with the defendant for the period of 7 (seven) years 8 (eight) months of employment does not entitle claimant to gratuity payment under the gratuity scheme pursuant to clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, at the sum of N6,133,333 (six million, one hundred and thirty-three thousand, three hundred and thirty-three Naira) only.
  6. Whether the claimant is entitled to general and special damages under the circumstances of this case.

 

RELIEFS SOUGHT:

  1. A DECLARATION that by virtue of the defendant’s letter dated 29.06.2021, signed by its Adekunle Adewuyi (head of human resources), claimant was an employee of the defendant for 7 (seven) years and 8 (eight) months before the defendant validly terminated the claimant’s employment on 01.06.2021.
  2. A DECLARATION that Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016, created an exception to gratuity scheme and payments in clauses 10.8.2 and 10.8.3 of the defendant’s Human Resources Policies and Procedures, April, 2016.
  3. A DECLARATION that the claimant’s employment duration with the defendant for a period of 7 (seven) years 8 (eight) months is capable of being approximated or aggregated to 8 (eight) years of continuous unbroken employment, pursuant to Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016.
  4. A DECLARATION THAT claimant is entitled to gratuity payment under the gratuity scheme pursuant to Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016 for the aggregated or approximated period of 8 (eight) years of employment with the defendant at the sum of N6,400,000 (six million, four hundred thousand Naira) only.
  5. ALTERNATIVELY, A DECLARATION that the claimant is entitled to gratuity payment under the gratuity scheme pursuant to clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016 for the actual employment period of 7 (seven) years 8 (eight) months with the defendant at the sum of N6,133,333 (six million, one hundred and thirty-three thousand, three hundred and thirty-three Naira) only.
  6. AN ORDER of the Honourable Court directing and compelling the Defendant to pay to the claimant the sum of N6,400,000 (six million, four hundred thousand Naira) only being the gratuity payment the claimant is entitled to under the gratuity scheme pursuant to Clauses 11.2.2 and the 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, for the aggregated or approximated 8 (eight) years period of employment with defendant.
  7. ALTERNATIVELY, ORDER of the Honourable Court directing and compelling the defendant to pay to the claimant the sum of N6,133,333 (six million, three hundred and thirty-three thousand, three hundred and thirty-three Naira) only being gratuity the claimant is entitled to under the gratuity scheme pursuant to Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016, for the actual 7 (seven) years and 8 (eight) months period of employment with defendant.
  8. AN ORDER of the Honourable Court directing and compelling the Defendant to pay to the claimant general damages at the sum of N1,600,000 (one million, six hundred thousand Naira).
  9. AN ORDER of the Honourable Court directing and compelling the Defendant to pay to claimant special damages at the sum of N2,500,000 (two million, five hundred thousand Naira) as Counsel’s professional fees that include all 3rd party costs as cost of this action.
  10.  AN ORDER of the Court directing and compelling the defendant to pay to claimant interest on the judgment sums at the rate of 21% (twenty-one percent) monthly from the date of judgment until the judgment sums are fully liquidated.
  11.  AND FOR FURTHER ORDER/ORDERS as this honourable Court may deem fit to make in the circumstances.   

 

The defence reacted to the above by filing Counter Affidavit [CA] May 5, 2022 together with a WA. The claimant thereafter filed Further Affidavit [FA] Jun 14, 2022 and a Motion to regularise the FA Sep 9, 2022. Thereafter, the defendant filed Notice of Preliminary Objection [NPO] that the suit be struck out for failing to exhibit the documents sought to be construed with the OS Dec 23, 2022. Those are the processes filed. I move to summary of proceedings before me. 

 

SUMMARY OF PRECEEDINGS

The case first came up before me in the sister case NICN/EN/38/2021 and it was adjourned for hearing. The case also came up Mar 20, 2025 and the motion by the claimant to frontload the necessary documents to the OS and the NPO to strike out the OS for failure to frontload these documents were moved in the absence of the defence and consolidated rulings were delivered on the bench in the sister case. The remedial motion was granted while the NPO to strike out the suit for not frontloading these documents, was dismissed. The case was thereafter adjourned for hearing. These proceedings were taken in the sister case [NICN/EN/38/2021] and made binding on this case. It came up Oct 29, 2025 in the absence of the defence counsel and the claimant’s counsel urged the Court to deem the defence processes as duly adopted in absentia. The application was granted as prayed. The learned counsel moved the OS and the FA in support and urged the Court to give him judgment. The matter was thereafter adjourned to Nov 27, 2025 for judgment. As the judgment was not ready on this date, it was adjourned sine die off record and when it became ready, date was communicated to the counsel on both sides. I move to summary of the processes.

 

SUMMARY OF THE PROCESSES

A: Summary of the OS

The questions for determination and the reliefs have been reproduced earlier leaving out the AS, which is now summarised as follows. The AS was deposed by Miss Chinedu Nwachukwu, a litigation assistant in the claimant’s lawyer’s chambers. She stated that she had the consent of the claimant and his boss to depose the AS and gave the sources and circumstances of the pieces of information deposed. She deposed that the defendant is a commercial bank and acquired Oceanic Bank, which originally employed the claimant Sep 8, 2008 and that, it terminated the claimant’s employment Jun 1, 2016 by letter dated May 31, 2016. She further deposed that, as at the termination, the claimant’s salary was N800,000. She deposed too that the claimant served for 7 years 8 months which approximates 8 years. She deposed that the defendant unilaterally reviewed the employment handbook in Apr 2016 and that by its Clause 10.8, the claimant was entitled to gratuity and Clauses 11.2–11.2.2 & 11.2. 4(b), which give the defendant right to terminate at any time but with the payment of prorated entitlement at point of termination, which shall not be subject to minimum years required in Clause 10.8.

She deposed further that the claimant is entitled to N6,400,000 if his service is approximated to 8 years or N6,133,333 if calculated on the actual 7 years 8 months served without approximation and that the claimant’s counsel had written to demand for this without avail, as the defendant said the claimant was not entitled to gratuity thus, this suit for which the counsel charged N2,500,000. She deposed that the defendant’s failure to pay the claimant’s gratuity has caused the claimant hardship, loss and family distress.

OSITA ENWE franked the WA. I need to state that questions submitted in the OS are the ones to argue in the accompanying WA and not new issues: questions and issues being exactly the same. In arguing question (a) & (b) of the OS, the learned counsel submitted that plain words without ambiguity enjoin literal interpretation and cited Union Bank v. Ozigi (1994) LPELR-3389 and submitted that the words of Exhibits C1 & C5 must be given literal interpretation with the conclusion that the claimant is deemed employed by the defendant who took over the Oceanic Bank for the period in contestation. The learned counsel submitted too that the law is that a composite document enjoins community construction and as such, clauses 10.8.2-10.8.3; 11.2.2 and the 2nd leg of Clause 11.2.4(b) of the Ecobank Human Resources Policies and Procedures [Handbook] must be given harmonious construction. The learned argued that if this is done, the 2nd leg of Clause of 11.2.4(b) of the handbook [Exhibit C3] cannot enjoin the interpretation the defendant intends to put on it in isolation when construed with the letter in Exhibit C5. Learned counsel cited Agbareh & Anor v. Mimra & Ors (2008) LPELR-43211. 

The learned counsel submitted that it is conceded that while Clause 11.2 provides that Clause 11 applies to all staff, Clause 10.8.2 says that Clause 10.8 applies to only permanent staff and that Clause 10.8.3, is a repetition of Clause 10.8.2 to the effect that only permanent staff are entitled to gratuity on the basis of 10 years continuous service. The learned counsel submitted that this is subject to contra proferentem rule when construed with Clause 11.2.4(b), which removes the inhibition and makes gratuity apply to all staff terminated other than for disciplinary actions by the defendant on prorated basis. The learned counsel argued that reference to entitlement in Clause 11.2.4(b) is reference to the gratuity scheme in Clause 10.8.2-10.8.3 and hence, the defendant must compensate the claimant whose appointment it terminated, even though, he did not meet the minimum years, having been exempted by Clause 11.2.4(b). The learned counsel cited MTN Communications Ltd v. Amadi (2012) LPELR-21276 and I.I. Nerigbuem & Co Ltd v. UBA Plc (2018) LPELR-44770. The learned counsel signed off question (b) and moved to questions (c) & (d).

The learned counsel referred this Court to its previous decision in Ekeoma Aja v. Fidelity Bank Plc in unreported Suit No. NICN/LA/588/2017 in which 14 years plus was approximated to 15 years from Jan 21,2002-Dec 23, 2016 and urged the Court to approximate the claimant’s 7 years 8 months to 8 years and consequently order payment of the sum of N6,400,000 or its alternative, based on the exact 7 years 8 months, if approximation is refused, which is N6,133,333 and moved to question (e) on general and special damages. Citing Ematon Service Ltd v. Nem Insurance Plc (2019) LPELR-49330 and Union Bank of Nigeria v. Ajabule (2011) LPELR-8231 (SC) the learned counsel submitted that general damages are presumed by law where injury is proved and need not be claimed or proved to be granted. He argued that the claimant even proved loss of income, capacity to take care of his family and inconveniences occasioned by the failure of the defendant to pay his entitlement and thereby eminently qualified to be granted general damages.

The learned counsel argued that the claimant is also entitled to special damages having incurred the cost of hiring lawyer in the sum of N2,500,000 and urged the Court to grant it.  Thus, ended the WA. I move to the defendant’s defence processes.

 

SUMMARY OF DEFENCE PROCESSES

One Francis Dehinbo, a banker, deposed to the CA and says, he is the Human Resources Business Partner [HRBP] of the defendant. He said the claimant did not work for 10 years to be entitled to gratuity and that the claimant failed to exhibit all the documents referred to, and as such, the defendant could not comment on them. He deposed that the document referred to as the Apr 2016 handbook was not in existence as at the point of termination but the Dec 2016 edition, now attached as Exhibit EB2 and that by its Clause 10.8.3, the claimant is not qualified for gratuity. He said the employment letter constitutes the contract between parties and ended by urging the Court to dismiss the case as the claimant is not qualified for gratuity. I move to the defendant’s WA filed with the CA.

IFEANYI OKUMAH franked the WA and argued that the claimant did not tender his employment letter and that the Apr 2016 handbook relied upon was not tendered and so, it is impossible to see the terms of the claimant’s employment whereas, the defendant tendered the Dec 2016 handbook as the only one in existence in 2016, and as such, the Court must hold that the Apr 2016 handbook is not in existence and that Dec 2016 handbook is the correct handbook. He submitted that the claimant’s case is therefore liable to be dismissed and cited UAC v. Macfoy (1961) 3 ALL ER 1169 to the effect that, you cannot put something on nothing and expect it to stand.

The learned counsel argued on question (a) that since the employment letter was not tendered it would be perverse to infer the claimant length of service from a document not tendered, even though, the defendant admitted that the claimant was its ex-employee, which admission was not tantamount to the admission of the length of service and cited Esohov Asuquo (2007) ALL FWLR (Pt. 359) 1355 at 1378, E-G on the meaning of perverse decision. The learned counsel argued that the Court cannot grant the declaration sought in the absence of the employment letter and thus, the burden to prove the length of service was not discharged and cited Jowan & Ors v. Delta Steel Company Ltd (2010) LPELR-4377 (CA) and Ikenta Best (Nig) Ltd v. AG Rivers State (2008) LPELR-1476 (SC).

On question (b), the learned counsel argued that the interpretation of Clauses 10.8.2; 10.8.3; 11.2.2 and the 2nd leg of Clause 11.2.4(b) was based on falsehood as no exception was created to qualification for gratuity more so, that the purported handbook was not in existence while the handbook tendered by the defendant did not entitle the claimant to gratuity. The learned counsel argued that it was wrong for the learned counsel to the claimant to attempt to replace what the claimant was entitled to with gratuity to which he was not entitled, as Clause 11.2.4 of the Dec 2016 handbook did not grant gratuity, it could not be read into it and cited Agbareh v. Mimra [supra] and Baba v. Nigerian Civil Aviation Training Centre (1986) LPELR-21095 (CA) and submitted that the Court cannot create an exception by reading into the document what it does not contain. 

The learned counsel submitted that reference to entitlement in Clause 11.2.4(b) of the Dec 2016 handbook was not reference to gratuity and that, the whole document must be construed to arrive at its meaning, as gratuity and severance schemes are not the only entitlements of employees, as such, the reference must be taken to refer to all the entitlements listed in Clause 10. The learned submitted that since the phrase “if any” appeared therein, and the entitlements do not apply to all staff equally, it must be taken as limiting gratuity to the specified staff, a disqualification, which Clause 11.2.4(b) cannot cure. Learned counsel submitted that any contrary interpretation would amount to rewriting the contracts for the parties. The learned counsel thereafter moved to questions (c) & (d).

The learned counsel argued that since the relevant materials are not before the Court, the Court cannot determine the length of service not to talk of approximating it to 8 years. The learned counsel also submitted that there is no legal basis for the Court to invoke approximation to 10 years, as approximation is rewriting the contract. The learned counsel argued that the claim for gratuity was not proved as entitlement was not based on length of service but permanence of employment as such the claimant did not show what exactly his employment was whether casual, seasonal or contractual. The learned counsel argued too that the claimant’s salary is not before the Court. The learned counsel urged the Court to hold that the length of service was not proved and moved to question (e).

The learned defence counsel argued that general and special damages are not awarded in breach of contracts of employment and cited Wilbros Nig Ltd & Anor v. Macaulay (2009) LPELR-8507 and a host of other cases to the effect that general damages are not awardable in breach of contracts of employment as they belong to torts. The learned counsel submitted that the claimant did not plead and prove the particulars of special damages and cited Gonzee (Nig) Ltd v. NERDC (2005) 13 NWLR (Pt. 943) 634 at 649, H. He argued further that the legal fee did not arise from the contract to constitute special damages and more so, there is no proof of payment to the counsel. Thus, ended the WA with the admonition to dismiss the case. I now move to the FA and the Reply on Points of Law [RPL] filed by the claimant.

 

SUMMARY OF THE FA AND RPL 

In the FA, the claimant, through Obiageli Anekwe (f), explained that it was the fault of the litigation clerks in not exhibiting copies of the documents referred to in the AS and that they are now exhibited. I will not bother to summarise the repetitions in the FA, as its main purposes are to explain why the exhibits were not initially attached and to reply to new facts in the CA. The claimant further deposed that it was wrong for the defendant to deny the existence of the Apr 2016 handbook and that the Dec 2016 handbook did not apply to the claimant, if it exists, because the claimant’s employment was terminated in Jun 2016. Those are the relevant part of the FA. I move to the RPL.

I will not bother to summarise re-arguments in the so-called Further Written Address part but only what amounts to RPL, as that is the only type of address known in response to CA and WA. OSITA ENWE franked the RPL. The learned counsel replied that the learned defence counsel wrongly construed Baba v. Nigerian Civil Aviation Training Centre by arguing that Exhibit C3 did not regulate the claimant’s employment, as the authority represents the old law while the new law is that, this Court has the vires to apply international conventions. The learned counsel also distinguished the authority on the basis that it dealt with employment with statutory flavour. The learned counsel also replied that the authorities cited on damages relate to the old position of law which has now transmuted and that the claims before the Court is not wrongful termination but for non-payment of gratuity. The learned counsel replied that Exhibit C9 showed the extent of losses the claimant suffered. Thus, ended the RPL. That being the end of the addresses, I move to give my decision.

But before then, let me state that I have carefully noted that this is OS which is fought on affidavits and I have taken cognisance of the position of law that the affidavits constitute both pleadings and evidence rolled into one. I have also noted that this is a fitting case for OS as the main facts are not disputed. I also noted the principle of law relating to how to resolve conflicts in affidavit. I have equally noted the authorities cited and done more research on relevant authorities to enable me render the right decision. I now go to give my decision.     

 

COURT’S DECISION AND THE RATIONALE

I shall answer all the questions together at once because the case only entails deciding the narrow points of the applicable handbook and the construction of just two clauses of the applicable handbook. First, I need to iterate preliminarily that the NIC is a hybrid Court that differs significantly from common law courts as attested by SS. 12(2) & 14 of the National Industrial Court Act [NICA] and affirmed in Adegboyu [Adegboye] v. UBA – unreported Court of Appeal decision in CA/IL/20/2021 – delivered Apr 14, 2022; Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and Or. 1, Rs. 4, 5 & 9(2)&(3) of the NIC Rules. The NIC primes the quick disposal of industrial relations cases with efficiency in fidelity to substantial justice over technicality. These inform the decision not to strike out this suit when application was brought to strike it out for not exhibiting the documents to be construed after the remedial application to bring in these same documents via FA. Striking it out would have been ‘penny wise pounds foolish’, as the claimant would have come back to file exactly the same suit but now properly at the start and timeous disposal of case matter in the NIC – Adegboyu [supra]. Why should precious judicial time and resources be wasted twice on mere document construction which could be done now, since all the necessary documents are before the court? These are the sort of rigmaroles decried by SS. 12(2) & 14 of the NICA; Or. 1, Rs. 4, 5 & 9(2)&(3) of the NIC Rules; and Adegboyu [supra]. 

Be that as it was, the documents are now here, and the defendant who was duly served and did not file further processes to counteract them after its NPO was dismissed. It must be noted that the defendant terminated the claimant’s appointment Jun 1, 2016 and claimed that the applicable handbook was the Dec 2016 handbook – see paras 4 & 9 of the CA. From the above, there is no need for any sophistry to infer that the Dec 2016 handbook could not have applied to a contract that was determined Jun 1, 2016, long before it came into existence. Hence, that argument is dismissed. Para 9 of the CA, which says the Apr 2016 handbook was not in existence at the time the claimant’s employment was terminated and that it was the Dec 2016 handbook that was in existence, apart from being self-contradictory and asserting impossibility, it is in sharp contradiction to para 7 of the same CA, which admitted the existence of the Apr 2016 handbook by implication but only said it did not constitute the contract of employment and that, it was not exhibited. With the state of internal the inconsistency in paras 7 and 9 of the CA, the paras lack probative values and mean the defendant did not deny the existence of the Apr 2016 handbook. 

Now that the defendant did not categorically at any point deny the existence of the Apr 2016 handbook but essentially based its defence on the non-exhibition of the handbook at inception, and it has now been exhibited in the FA without contestation. The defendant is taken to have conceded the existence of the document and its authenticity. It could not be that there was no handbook that originally governed the employment before the Dec 2016 handbook, as S. 7(1)(h) of the Labour Act makes it compulsory that further details than usually contained in employment letters be supplied in writing to the workers within three months of employment, a position also concretised by Art 12(1)(a) of ILO C158[1] which decreed severance/gratuity to discharged employees. With the claimant story that the original handbook was reviewed in Apr 2016 and replaced with the Apr 2016 handbook, a fact which the defendant did not controvert, the unassailable conclusion is that by the internal consistency of the claimant’s story and the non-contestation of the fact that the original handbook was replaced with the Apr 2016 handbook, the Apr 2016 handbook was in existence to the defendant’s knowledge at the time of termination. This conclusion is cemented by the further fact that the claimant’s testimony that the defendant duly sent this Apr 2016 handbook to its intranet platform for the use of staff and from which he printed it, was not denied at all – paras 12-14 of the AS.

Note that the defendant only tendered snippets of the alleged Dec 2016 handbook and not the composite copy to enable the Court see the whole composite document and construe its clauses in context. It means the defendant did not tender any handbook as a Court cannot construe parts in isolation of one another, as that would amount to speculation, which a court lacks jurisdiction to do. Besides, the defendant is by this also guilty of concealment and carries the penalty in law. The penalty being that it suppressed the other parts because, had it tendered them, they would be unfavourable to it. Besides, the defendant did not give copious pieces of information about where and how it got the alleged Dec 2016 handbook as done by the claimant for the Apr 2016 handbook. This places a doubt on its authenticity and attaches it with the virus of document produced after the cause of action arose and in the course of this suit to thwart this suit.   

The argument about the Apr 2016 handbook not being the contract, apart from supporting admission of existence of the Apr 2016 handbook, is misplaced, as a handbook is the blood and soul of any contract of employment that breathe life into the dry bones of the appointment letter, giving it flesh by providing how things work out in actual practice. The things provided in handbooks are mostly details that S. 7(1)(h) of the Labour Act makes compulsory to be provided in writing in all contracts of employment. This is in sync with the ILO C158 [supra]. In any case, if the handbook was not the contract, how come the defendant itself referred to the purported Dec 2016 handbook, as being part of the contract? It means there must have been a handbook in existence which provisions the defendant wished to thwart. Saying the handbook was not the contract is another instance of self-contradiction and blowing hot and cold at the same time on the issue of Apr 2016 handbook: how can the Dec 2016 handbook be the contract and the Apr 2016 handbook not be? Since the defendant admitted there is provision for gratuity and that there is a handbook that governed it, but only that the claimant was not qualified because he did not serve up to 10 years: now that it is clear the Dec 2016 handbook the defendant referred to postdated the claimant’s termination, it could not apply to the claimant. As only a handbook that predated the termination could apply to the claimant, and the defendant did not cite another handbook that predated the claimant’s termination, the Apr 2016 handbook, which predated the termination and tendered in its full composite copy is the correct applicable handbook. The argument about its non-existence is disingenuous and thus, dismissed. The only thing remaining is now to construe its relevant provisions.

The relevant provisions that come for consideration are the provisions of Clauses 10.8.3 and 11.2.4(b) of the Apr 2016 handbook. The law is that a composite document enjoins holistic construction. These clauses must be construed together harmoniously to arrive at a sane meaning to either of them and both of them. The intendment of Clause 10.8.3 construed in the context of the whole of Clause 10, is to give full gratuity to the defendant’s employees that have made at least 10 years unbroken service while Clause 11.2.4(b) gives prorated gratuity to the other staff who did not reach the 10 years benchmark due to premature termination by the defendant for no fault of theirs. Clause 11.2.4(b) is a sort of compensation for termination without reason, which the law now forbids since 2011 by virtue of S. 254C-(1)(f) of the Constitution, under which auspices the 2016 termination without reason falls. The proviso to Clause 11.2.4(b), which says the discretion to terminate without reason is subject to contrary municipal statutory specification confirms the defendant’s admission of the unfairness of such termination and provided a buffer to cushion the injustice in the payment of prorated gratuity – Art 12(1)(a) ILO C158 [supra]. That is why prorate is not mentioned in the whole of Clause 10 but only in Clause 11.2.4(b) of the Apr 2016 handbook. The defence argument trying to give these clauses another interpretation is accordingly wrong and thus, dismissed. I therefore find that the claimant is entitled to gratuity at 7 years 8 months of service with the defendant. 

Let me say for the sake of abundance that the above construction would not also shift were the relevant clauses of the alleged Dec 2016 handbook the appropriate ones. This is because the phrase “if any”, which the defendant laid emphasis on does not in any way debar gratuity on proration, as to give it such construction would have immediately made the defendant liable to damages for unfair termination without reason contrary to Arts 4 & 12(1)(a), ILO C158 [supra]. Note that the contra proferentem rule is applicable in contracts of employment in favour of the employees as the underdogs and would have applied in this instance to cure any ambiguity. But as I have found, the Dec 2016 handbook is not in existence and also irrelevant to this action. The Apr 2016 handbook is the applicable handbook. Having settled the issue of the applicable handbook, I now proceed to settle the question of approximation.

The claimant is not entitled to any approximation because his counsel suppressed unfavourable facts in Ekeoma Aja v. Fidelity Bank [supra] cited to support the claim to approximation. The period approximated in the case was less than one month compared to wanton four months in the instant case and the facts of Ekeoma were that the claimant was terminated to ensure he did not meet the gratuity target, which is not the case here. In either of the distinctions drawn above, the two cases are different and therefore, Ekeoma cannot be an authority for this case. The prayer for approximation is accordingly dismissed. The claimant is therefore only entitled to gratuity for the 7 years 8 months he served with the defendant. I move to the question of the exact amount the claimant is entitled to. The claimant pleaded and gave evidence that his last salary was N800,000 per month and tendered Exhibits C2 in the FA, which has N726,722.06 as the gross monthly salary for Mar, Apr, and May 2016. 

I have found that in accordance with Clause 10.8.8 of the Apr 2016 handbook, one month of the gross annual salary is the yardstick for the calculation of gratuity. In accordance with Clause 11.2.4(b) the claimant is entitled on prorated basis. Hence, the claimant is entitled to gratuity for 7 months gross salaries of the seven years served at the terminal salary of N726,722.06 monthly, which is N5,087,054.42, plus one-month gross salary of the incomplete year served [N726,722.06] divided by 12, which is N60,560 X 8, which is N484,481, and the cumulative total of 7 years 8 months is therefore N5,571,535, which is accordingly hereby awarded.

The argument about non-confirmation or lack of evidence of permanent service is nonstarter as Clause v) of Exhibit CIA of the FA shows that the claimant’s appointment in 2008 was designed to be a permanent one on confirmation after 6 months. The appointment is deemed to have been confirmed, the claimant having worked for 7 years, 8 months thereafter before his termination – Taylex drugs Company Limited v. Onakpa (2018) LPELR-45882 (CA) 38-39, A-B and, The Council of Federal Polytechnic, Ede & Ors. v. Olowookere (2012) LPELR-7935 (CA) 22-23, D-B. The claimant is definitely entitled to damages for the inconvenience and psychological trauma suffered as a result of the defendant’s failure to pay his gratuity on time. It is old law to argue that damages are not grantable in termination cases. Damages are now grantable in all cases of unfair labour practices and not only in termination cases by virtue of S. 254C-(1)(f) of the Constitution and SS. 14 & 19(d) of the NICA. The law has shifted with the Third Alteration Act coming into effect in 2011 – Adegboyu [Adegboye] v. UBA [supra] and Sahara Energy Resources Ltd v. Oyebola [supra]. It is definitely a gross violation of the fundamental employment right of the claimant to deprive him unjustly of his gratuity since 2016 to date. I accordingly grant the full N1,600,000 [One Million, Six Hundred Thousand Naira] general damages claimed. I also grant cost of N500,000 [Five Hundred Thousand Naira] only, taking into consideration that the case is OS, which dispenses with oral evidence. 

I also grant the 21% post-judgment simple interest rate per month on the judgment sums awarded. The defendant is a commercial bank and has been fraudulently trading with the claimant’s gratuity since 2016 to date! Failure to pay earned emoluments is treated as gross violation of fundamental rights to life, property and dignity of human person – Indian case of J. Awartha Nrarayana v. The State of Ap[2]. It is also treated as gross violation of fundamental employment rights – S. 254C-(1)(f) of the Constitution, as a classical example of unfair labour practices. I note that this is an appropriate situation to grant pre-judgment interest rate, which I shall not grant because, I intend to encourage the defendant to pay the gratuity and other sums granted timeously, failing which the heavy post-judgment interest rate per month begins to run from the delivery of this judgment. Hence, I rely on Or. 1, R. 9(2) of the NIC Rules and S. 14 of the NICA to bypass Or. 47, R. 7 of the NIC Rules in granting this relief. Thus, the claimant deserved to be paid his long overdue gratuity promptly immediately after this judgment. It is now the defendant’s choice to determine to cough out the 21% simple interest rate per month in the event of failing to pay the awards immediately.  I refused the claim for solicitor’s fees as no evidence was adduced to prove that it was actually paid. Hence, the claim for special damages is dismissed. 

In the end, I answer questions Nos (a) & (b) in full in the positive and question (c) & (d) in the negative. I answer question No (e) in the positive to the extent of N5,571,535. I answer question No. (f) to the extent that the claimant is entitled to general damages claimed but dismissed the special damages. In the end I grant reliefs (1), (2) in full; relief (5) to the extent of N5,571,535 [Five Million, Five Hundred and Seventy-One Thousand, Five Hundred and Thirty-Five Naira] only and relief (7) to the extent that the N5,571,535 be paid the claimant. I grant relief (8) in full. I grant relief (11) to the extent of cost of N500,000 [Five Hundred Thousand Naira] only. I grant relief (10) in full in simple interest rate per month on all the judgment sums awarded above. I dismiss reliefs (3); (4), (6), and (9). The decision takes immediate effect. Having got to this juncture, the case must come to an end.

 

CONCLUSION

I reiterate the reliefs granted as follows:

  1. A DECLARATION that by virtue of the defendant’s letter dated 29.06.2021, signed by its Adekunle Adewuyi (Head of Human Resources), the claimant was an employee of the defendant for 7 (seven) years and 8 (eight) months before the defendant validly terminated his employment on 01.06.2016.
  2. A DECLARATION that Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016, created an exception to gratuity scheme and payments in clauses 10.8.2 and 10.8.3 of the defendant’s Human Resources Policies and Procedures, April, 2016.
  3. A DECLARATION that the claimant is entitled to gratuity payment under the gratuity scheme pursuant to clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016 for the actual employment period of 7 (seven) years 8 (eight) months with the defendant at the sum of N5,571,535 [Five Million, Five Hundred and Seventy-One Thousand, Five Hundred and Thirty-Five Naira] only.
  4. ORDER of the Honourable Court directing and compelling the defendant to pay to the claimant the sum of N5,571,535 [Five Million, Five Hundred and Seventy-One Thousand, Five Hundred and Thirty-Five Naira] only being gratuity the claimant is entitled to under the gratuity scheme pursuant to Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016, for the actual 7 (seven) years and 8 (eight) months period of employment with defendant.
  5. AN ORDER of the Honourable Court directing and compelling the Defendant to pay to the claimant general damages of N1,600,000 (One Million, Six Hundred Thousand Naira) only.
  6. Cost of N500,000 [Five Hundred Thousand Naira] only granted.
  7. AN ORDER of the Court directing and compelling the defendant to pay to claimant post-judgment simple interest rate of 21% per month on all the judgment sums awarded above from the date of judgment until all the judgment sums are fully liquidated.
  8. The judgment takes immediate effect. 

 

Curtain is drawn on the judgment and it is accordingly entered this Tuesday Dec 2, 2025 under my very hand as the Presiding Judge.

 

.............................................

Hon. Justice Oluwakayode Ojo Arowosegbe

Presiding Judge

Enugu Judicial Division

National Industrial Court of Nigeria


[1]Termination of Employment Convention at https://normlex.ilo.org/dyn/nrmlx_en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158 [accessed Jul 13, 2025].

[2] https://indiankanoon.org/doc/72602775/ [accessed Jul 8, 2024].

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