IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

11^TH DAY OF FEBRUARY, 2026                                  SUIT NO: NICN|CA|12|2024

BETWEEN:

1.   MR. UBONG Hilary Silas                                                          Claimants

2.   Mr. Item Isongenwongo Donald

AND

HI-QUALITY BAKERY LTD……………………………..………………………….…… Defendant

JUDGMENT.

1.   Vide a general form of complaint dated 13^th day of February, 2024, and filed on the same date, accompanied by statement of facts, witness statements on oath, list of witnesses, list of documents and photocopies of documents to be tendered as exhibits, the claimants instituted this suit against the defendant wherein they claimed as follows:-

1.   A Declaration that the Defendant has breach of Agreement.

2.   An Order of court that the Defendant pay to the 1^st claimant the sum of N240,000.00 (Two Hundred & Fifty Thousand Naira) being 20% of the 1^st Claimant’s salary deducted by the Defendant for 2 years without remittance to the pension fund scheme.

3.   An Order of Court that the Defendant pay to the 2^nd claimant the sun of N320,000.00) Three Hundred and Twenty Thousand Naira), being 20% of the 2^nd claimant Salary deducted by the Defendant for 2 years without remitting to the pension fund scheme.

4.   An Order of Court that the Defendant pay to the 1^st claimant the sum of N1,080,000.00) One Million, Eighty Thousand Naira) only being 20% of the sum calculated as the 1^st claimant’s pay of.

5.   An Order of court that the Defendant pay to the 2^nd claimant the sum of N2,520,000.00) Two Million, Five Hundred and Twenty Thousand Naira) only.

6.   An Order of Court that the Defendant pay the Claimants the sum of (N10,000,000.00) Ten Million Naira only being general damages,

7.   The sum of N2,000,000.00) Two Million Naira as cost of Action.

2.           In reaction to the claim of the claimants, on 15/5/2024, the defendants filed its statement of defence. An amended statement of defence was filed by the defendant on 10/4/2025.

3.           The claimants testified in proof of their cases as CW1 and CW2, respectively. In giving evidence in chief, the claimants  adopted their respective witness statement on oath as their evidence in this case. Documents were tendered in evidence through the claimants, the documents were admitted in evidence and marked as exhibits A – M. At the claimants at the end of their respective evidence in chief, the claimants were each cross examined by counsel for the defendant. Thereafter, they were discharged.

4.           The defendant on its part called one Mishak Uyong, who testified in defence of the defendant as DW1. DW1 after identifying his witness statement on oath adopted the same as his evidence in this case. Five documents were tendered in evidence through DW1. The documents were admitted in evidence and marked as exhibits DW1A – DW1E. Dw1 was cross examined after his evidence in chief at the end he was discharged. 

THE CASE OF THE CLAIMANTS.

5.           The 1^st claimant served the defendant as driver from June, 2014 to 2023, for a period of nine (9) years. While the 2^nd claimant served the defendant for a period of 14 years as an Assistant Production Manager. The claimants' employment was confirmed by the defendant.

6.           The claimants stated that they were informed by the defendant that 20% of the claimants’ monthly salary would be deducted every month and same paid into the claimants’ pension fund opened to serve as claimants’ pension upon retirement. The claimants alleged that they were forcefully registered with NLPFA.

7.           According to the claimants initially 20% were deducted from the salary and paid into their pension account, but after a while the defendant kept deducting the claimants salary but refused to pay it into the claimants pension fund account. 

8.           The claimants stated that the monthly salary of the 1^st claimant was N37,000.00. The 1^st claimant’s salary was subsequently increased to N50,000.00 (Fifty Thousand Naira). While the monthly salary of the 2^nd claimant was N65,000.00 (Sixty Five Thousand Naira) from October 2009. The 2^nd claimant’s salary was increased to N75,000.00 (Seventy Five Thousand Naira) from February, 2022 to November, 2023, when the 2^nd claimant resigned from the services of the defendant.

9.           According to the claimants, for over two years the defendant was deducting their salary without paying the same into the claimants’ pension fund. The claimants contacted the NPLFA, but they were told the claimant has not remitted the fund to the scheme. That two years after resigning from service, the claimants wrote to the defendant demanding payment 

THE CASE OF THE DEFENDANT.

10.        For the defendant, the 1^st claimant has worked for the defendant for 9 years and some months as a driver as shown by letter of employment dated 7^th June, 2014 and letter of resignation dated 2^nd November, 2024. While the 2^nd claimant worked for the defendant for 14 years and some months as a baker as shown by letter of employment dated 8^th October, 2009 and letter of resignation dated 2^nd November, 2023.

11.        The defendant denied informing the claimant that 20% of their salaries would be deducted every month and the same will be paid into the claimant’s pension fund. Rather, as shown by the claimants’ letters of offer of employment/appointment and confirmation of appointment, opened an insurance pension scheme for the claimants, which same is to be paid to the claimants by the insurance pension scheme company upon retirement in accordance with provisions of the Pension Reform Act, 2014. 

12.        The defendant paid the sum of N3,920.00 infavour of the 1^st claimant into the pension scheme every month. While the sum of N6,000.00 was paid in favour of the 2^nd claimant into the pension fund scheme every month, as shown in column 23 and 33 of October, 2023 salary schedule of payment dated 31/10/2023. The defendant paid these amounts in favour of the claimants into their pension fund scheme and never failed to pay till claimants’ resignation.

13.        It was also stated that the 1^st claimant was never fixed on a monthly salary of N37,000.00 and subsequently the sum of N50,000.00. Rather the 1^st claimant was placed on cumulative annual salary/per annum salary of N37,000.00 as per his letter of employment dated 7^th June, 2014 and letter of confirmation dated 9^th September, 2014. It was in February, 2022, that the defendant  decided to start paying the 1^st claimant a monthly gross salary N49,000.00 (Forty Nine Thousand Naira) till his resignation in November, 2023.

14.        The 2^nd claimant was never fixed on a monthly salary of N65,000.00 (Sixty Five Thousand Naira). Rather he was fixed on a cumulative annual salary per annum of N8,000.00 (Eight Thousand Naira), as per his letter of employment/appointment dated 8^th October, 2009 and letter of confirmation of appointment dated 10^th January, 2010. It was in February, 2022, that the defendant decided to start paying 2^nd claimant a monthly salary of N75,500.00 (Seventy-Five Thousand Five Hundred Naira) till his resignation in November, 2023.

15.        The defendant has from the commencement of claimants’ employment till their resignation from employment, been religiously faithful in remitting or paying the requisite respective sums of N3,920.00 and N6,000.00 in favour of the claimants, respectively, and never failed at any time to so do. It is the duty of the claimants to write to the insurance pension fund scheme company for payment of their pension retirement benefits, which they have failed to do. 

16.        The defendant did not refuse to pay the claimants gratuity entitlement, which is 20% of the claimants’ gross salary for the number of years the claimants worked for the defendant in line with the defendant’s employees’ handbook in page 26 paragraph 6.5. The defendant upon receipt of claimants’ letter of demand of 12/12/2023 and that of 20/12/2023, responded to same on 21/12/2023, asking the claimants to give her some time to make the requisite calculation and effect payment,  but the claimants refused and went ahead to file this suit on 13/2/2024.

17.        The pension fund of the 1^st claimant cannot be N240,000.00 but it would rather be N94,000.00 at the rate of sum of N3,9320.00. for the 2^nd claimant his pension cannot be the sum of N320,000.00. but, rather, it would be N144,000.00 at the rate of N6,000.00, per month. For the 20% gratuity cannot be N1,080,000.00 it would be N88,200.00. while that of 2^nd claimant will be N211,400.00 and not N2,520,000.00.

THE SUBMISSION OF THE DEFENDANT.

18.        Jerome Ukeme, Esq; adopted the final written address of the defendant as his argument. In the written address four issues were formulated for determination. They are:-

1.   Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, the Claimants can be rightly adjudged to have proved their Declaratory relief that the Defendant has breached the agreement she had with them?

2.   Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have proved their pension claims against the Defendant?

3.   Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have proved their claims of gratuity entitlement against the Defendant.

4.   Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have proved their cost of action claim against the Defendant?

ARGUMENT OF ISSUES:

19.        Issue 1: Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, the Claimants can be rightly adjudged to have proved their Declaratory relief that the Defendant has breached the agreement she had with them?

20.        Counsel started arguing this issue by submitting that the law is statutorily trite that the burden of proof lies on the party who would fail, if, no evidence at all were given on either side. On this contention reliance was placed on sections 132 & 133(1) of the Evidence Act, as amended. Furthermore, by virtue of section 131(1) of the Evidence Act, as amended, it is mandatorily statutorily required that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Arising therefrom, the law is trite in the realm of law of contract that where a party alleges a breach of contract and to succeed at same, the party must plead the contractual agreement, point out the actual terms of the contract agreement that were breached and the manner in which they were breached and also lead evidence to prove same. 

21.        According to counsel, the case of the Claimants is that the Defendant entered into a contractual agreement with them to deduct 20% of their salary monthly and remit the same into their Pension account scheme with NLPC Pension Fund Administrators Limited and thereafter same to be paid to them upon retirement. Upon their resignation from the employ of the Defendant, they were told or informed by the administrators of the Pension Fund Scheme that the Defendant did not remit their pension funds for 2 years. That the Defendant’s failure to remit their pension funds to the said Pension Fund Scheme Administrator amount to breach of contract. The Claimants pleaded and placed reliance on their Letters of Offer of Appointment, Letters of Confirmation of Appointment, Certificate of Pension Registration, Retirement Savings Account Statement from the Pension Fund Scheme and the Defendant’s Employees’ Handbook particularly at page 26, paragraph 6.5. 

22.        Counsel submitted that a painstaking perusal of: Exhibits B, C, H and I and exhibits DW1A, DW1B, DW1C AND DW1D, being the Claimants’ Letters of Offer of Appointment and Letters of Confirmation of Appointment, clearly show that there is nothing therein suggesting or showing that the Claimants and the Defendant agreed that 20% of their salary shall be deducted and paid into a Pension Fund Scheme as their pension upon retirement. It merely stated that the Claimants shall be entitled to pension coverage and nothing more;

23.        Exhibits D and L, being the Claimants’ Certificate of Pension Registration and Retirement Savings Account Statement from the Pension Fund Scheme, also clearly show that there is no agreement between the Defendant and the Claimants that 20% of their salary shall be deducted monthly and remitted by the Defendant to the Pension Fund Scheme Administrators.

24.        Counsel posited that exhibit A, being the Defendant’s Employees’ Handbook-page 26 at paragraph 6.5, also clearly shows that there is no agreement between the Defendant and the Claimants that 20% of their salary shall be deducted monthly and remitted by the Defendant to the Pension Fund Scheme Administrators. The only thing that the said exhibit shows is that the Claimants shall be entitled to gratuity upon retirement or lawful resignation which shall be 20% of their gross salary multiplied by the number of years they have worked for the Defendant.

25.        Counsel further submitted that the Claimants, who claimed and testified that they were informed by the administrator of the Pension Fund Scheme that the Defendant has not remitted 2 years of their pension funds, failed completely to call the administrator of the said Pension Fund Scheme as a witness to testify in their favour to that effect and to also corroborate their testimony that it was 20% of their salaries that were monthly deducted and remitted to the Pension Fund Scheme by the Defendant. To this end, the foregoing testimony of the Claimants amount to inadmissible hearsay evidence by virtue of the provisions of Sections 37 and 38 of the Evidence Act, as amended. Thus, the foregoing testimony of the Claimants are unreliable and same is liable to be expunged from the records of this Court. Counsel urged the court to hold.

26.        Counsel also submitted that the claimants are seeking for declarations and the law is settled that the Claimants must succeed on the strength of their own case and not on the weakness of the Defendant’s case, admission of the Defendant or failure of the Defendant to file Statement of Defence. Also, the Claimant must lead sufficient cum compelling evidence beyond the balance of probability. In lending judicial validation cum corroboration to the foregoing legal submission, the Penultimate Court of the Land, in IKPOK & ORS v UDOH [2021] LPELR-55883 [CA], elucidated and enunciated to wit:

“The law is firmly settled that declaratory reliefs are not granted even on admission. Thus, the plaintiff seeking such reliefs must prove and succeed on the strength of his case and not rely on the weakness of the defence. Consequently, the burden of proof on the plaintiff in establishing declaratory relief to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. Put differently, the Court does not make a declaration of right either on admission as in default of defence without having evidence and being satisfied by such evidence to the plaintiff’s entitlement to such a right. See MOHAMMED v WAMMAKO [2018] 7 NWLR [PT.1619] 573; IFEDIORA v OKAFOR [2019] 16 NWLR [PT.1698] 322 @ 341.’ PER MUHAMMED LAWAL SHUAIBU, JCA (PP 10-10, PARAS A-E; SKYE BANK PLC v PERONE NIG. LTD [2016] LPELR-41443 [CA]; RUGBERE v UBA PLC [2017] LPELR-44966 [CA]; AKINBADE v BABATUNDE [2018] 7 NWLR [PT.1618] 366 @ 388, PARAS E-F; BANKOLE & ANOR v DENAPO & ANOR [2019] LPELR-46444 [CA]; SALIHU v GINDAS [2018] LPELR-44006; LAWRENCE v OLUGBEMI & ORS [2018] LPELR-45966 [CA]; YIWA v TATA [2018] LPELR-44669 [CA]; TANG v GAZU [2021] LPELR-55227 [CA]; IFEDIORA v OKAFOR [2019] 16 NWLR [PT.1698] 322 @ 341 [SC].

27.        It is submission of counsel that in the light of the above judicial authorities and the totality of the evidence adduced by the Claimants, and considering the totality of the pleadings of the parties and the evidence adduced before this Court, the Claimants can be rightly adjudged to have failed to prove their Declaratory relief that the Defendant has breached the agreement she had with them. Counsel urged the court to find and hold. 

28.        Issue 2: Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have proved their pension claims against the Defendant?

29.        Counsel submitted that the Claimants, by their reliefs 2 and 3, are praying this Court to mandate the Defendant to pay them their 2-year pension fund entitlements which they were told by the administrator of the Pension Fund Scheme they were enrolled on that the Defendant failed to remit their pension funds for 2 years. In advancing their claims, they are placing reliance on exhibits A, B, C, D, E, F, G, H, I, J, K, L and M. 

30.        According to counsel a painstaking perusal of all the above-mentioned exhibits A to M, which the Claimants are placing reliance on, will incontestably reveal that there is nothing in those exhibits which shows that the Defendant has failed to remit the Claimants pension funds for 2 years to NLPC Pension Fund Administrators Limited.

31.        Again, a scrupulous attendance of attention to all the aforementioned exhibits of the Claimants will show that the only exhibits that appear to have emanated from NLPC Pension Fund Administrators Limited are exhibits D and L, being the Claimants’ Certificate of Pension Registration and Retirement Savings Account Statement from the Pension Fund Scheme. None of the foregoing exhibits disclose or prove that the Defendant has failed to remit the Claimants’ entitled pension funds to the said Pension Fund Scheme Authority for 2 years.

32.        Counsel further argued that there is no letter or document from the hands of NLPC Pension Fund administrators Limited tendered in evidence before this Court by the Claimants corroborating the Claimants’ testimony that the Defendant has failed to remit their pension funds to NLPC Pension Fund Administrators Limited for 2 years and that the amounts the Claimants are claiming in their reliefs 2 and 3 are the accurate sums.

33.        Counsel submitted that the Claimants have failed to specifically state, plead and adduce evidence as to the exact 2 years that the Defendant failed to remit their pension funds to NLPC Pension Fund Administrators Limited the two years the Claimant are alleging, is it 2016 and 2017? or 2018 and 2019? or 2009 and 2010? or 2020 and 2021? or 2022 and 2023?; etc. The Claimants have left this Court and the Defendant in a state of dilemma! The Claimants have left a fundamental lacuna/gap which cannot be filled by this Court nor the Defendant. According to counsel this Court cannot go on a voyage of discovery on behalf of the Claimants to ascertain the exact alleged 2 years that the Defendant failed to remit their pension funds to the said Pension Fund Scheme Authority. The law is very clear on the point that this Court is not a court of speculations, possibilities or guesses, but a court of law and facts established by evidence. In lending judicial affirmation to the foregoing legal submission, the penultimate court of the land, in AL-HALEEL v FRN (2015) LPELR-25902(CA), elucidated and held thus:

“It is settled law that findings of fact should be based on the evidence adduced before the Court and not on speculation or possibilities. The fundamental nature of this position of the Law vis-à-vis the duty of the Court was expressed by the Supreme Court in the case of Akpabio v State (1994) 7 NWLR (Pt.359) 635, where the apex Court said ‘The point must be stressed that it is a fundamental principle of law that findings of facts and conclusions from facts of a trial court should be based on evidence adduced before the Court and not on speculation or possibilities. See State v Aibangbee & Anor (1988) 3 NWLR (Pt.84) 548. It is not the function of a Court of Law to speculate on possibilities which are not supported by any evidence. See State v Ibong Udo& Anor (1964) 1 All NLR 243; Queen v Gabriel Adaoju Wilcox (1961) All NLR 637 and Iteshi Onwe v State (1975) 9-11 SC 23@31. No trial Court is entitled to draw conclusion of fact outside the available legal evidence before it. When a trial Court veers off course and acts on speculation and possibilities rather than on the concrete evidence before it, it obviously has abandoned its proper role and such facts or conclusions of facts found without appropriate evidence in support thereof will be regarded as perverse by an Appellate Court.’”

34.        Counsel also placed reliance on RIVERS VEGETABLE OIL CO. LTD v EGBUKOLE (2009) LPELR-8379 (CA); EFFIONG v STATE (2016) LPELR-42052 (CA)/

35.        Counsel refers to the Claimants’ paragraph 9 of their Statement of Claim/Facts, where they averred that while the 1^st Claimant started with a salary of #37,000.00 (Thirty-Seven Thousand Naira) and resigned with a salary of #50,000.00 (Fifty Thousand Naira); the 2^nd Claimant started with a salary of #65,500.00 (Sixty-Five Thousand, Five Hundred Naira) and resigned with a salary of #75,500.00 (Seventy-Five Thousand, Five Hundred Naira). The Claimants have not tendered in evidence any document before this Court authenticating their acclaimed salary figures. In destroying the foregoing evidence of the Claimants, exhibits B, C, H and I and exhibits DW1A, DW1B, DW1C, DW1D AND DW1E show that while the 1^st Claimant started with a cumulative annual salary/per annum salary of #37,000.00 (Thirty-Seven Thousand Naira) and resigned with a monthly Gross Salary of #49,000.00 (Forty-Nine Thousand Naira), the 2^nd Claimant started with a cumulative annual salary/per annum salary of #8,000.00 (Eight Thousand Naira) and resigned with a monthly Gross Salary of #75,500.00 (Seventy-Five Thousand, Five Hundred Naira). The foregoing explicitly cum axiomatically shows that the Claimants are not accurate in the computation of the sums they are claiming in their reliefs 2 and 3 against the Defendant.

36.        Counsel further submitted that the Claimants have not shown and led evidence before this Court on how they arrived at the respective sums they are claiming in their reliefs 2 and 3 against the Defendant. It is worthy of note that the Defendant has denied owing the Claimants any pension whatsoever, as all pensions due to the Claimants have been remitted to the Pension Fund Scheme Authority. The law is trite that the onus of proof is on the Claimants who assert certain specific figures as their entitlements to lead evidence to establish and justify the specific figures so asserted by them. In lending judicial credence to the foregoing legal submission, the Court of Appeal, in LASUN & ORS V. WEMA BANK [2021] LPELR-54852[CA], enunciated thus in affirmation:

“The Respondents did not dispute the assertions of the Appellants on the length of service for pension being 10 years. In other words, the Respondents, who had in turn pleaded that they did not short pay on the entitlements of the Appellants, accepted that none of the Appellants had served the Respondent for less than 10 years. But the Appellants further gave various specific figures of sums of money which they alleged that they were entitled to. The Respondent expressly disputed this further assertion in paragraph 15 of their amended statement of defence. It was now for the Appellants to provide the basis for the computation of the entitlements claimed for each Appellant. This, they failed to do. He who asserts must prove. See CPC v INEC (2011) LPELR-8257(SC); Hillary Farms Ltd v MV Mahtra & Ors (2007) LPELR-1365(SC). It was for the Appellants who asserted certain specific figures as their entitlements to establish that the number of years of each Appellant served to justify the calculation of figures so asserted. A Court of law does not embark on a jamboree of fact-finding. The burden to prove the years of service of each Appellant and the calculation of their entitlement rested on the Appellants. See P.A.N. Ltd v Saliu Oje (1997) LPELR-6331(CA) at page 16. See also Section 135 of the Evidence Act, 2011. Per OTISI, JCA (Pp. 18-19, para. E-E).”

37.        Counsel also relied on the case of GIWA & ORS V. WEMA BANK [2021] LPELR-54851 [CA].

38.        Counsel argued that on the strength of the above explicit judicial authorities and well detailed analytical evaluation of evidence cum legal arguments, submit that considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have failed to prove their pension claims against the Defendant. Counsel urged the court  to find and hold. 

39.        Issue 3: Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have proved their claims of gratuity entitlement against the Defendant?

40.        In arguing this issue counsel submitted that the Claimants, by their reliefs 4 and 5, are praying this Court to mandate the Defendant to pay them their resignation gratuity entitlement benefits by virtue of paragraph 6.5 at page 26 of the Defendant’s Employees’ Handbook, being exhibit A, which is 20% of the monthly gross salary of the Claimants multiplied by the number of years the Claimants worked for the Defendant. However, there is a great dispute between the Claimants and the Defendant as to the accurate sum the Claimants are entitled to (see paragraph 7 v & vi of the Defendant’s Statement of Defence vis-à-vis the Claimants’ reliefs 4 and 5). Arising therefrom, the onus of proof is on the Claimants to lead credible evidence to prove to this Court that the sums they are claiming in their reliefs 4 and 5 are the accurate sums they are entitled to. Contrastingly, the Claimants have failed to prove that the sums they are claiming in their reliefs 4 and 5 are their accurate entitlements by virtue of paragraph 6.5 at page 26 of exhibit A to wit:

While the 1^st Claimant is claiming that his resigned gross salary is #50,000.00 (Fifty Thousand Naira), the Defendant, by virtue of exhibit DW1E, has shown that the 1^st Claimant’s gross salary is #49,000.00 (Forty-Nine Thousand Naira). The 1^st Claimant has not tendered in evidence anything/document to show that indeed his resigned gross salary is #50,000.00 (Fifty Thousand Naira).

The Claimants have also failed to show and prove to this Court how they arrived at the respective sums they are claiming as their gratuity entitlements by their calculations in reliefs 4 and 5 against the Defendant.

41.        The law is trite that the onus of proof is on the Claimants who assert certain specific figures as their entitlements to lead evidence to establish and justify the specific figures so asserted by them. On this submission counsel relied on the case of LASUN & ORS V. WEMA BANK [2021] LPELR-54852[CA]; GIWA & ORS V. WEMA BANK [2021] LPELR-54851 [CA]. Counsel submitted in view of the above judicial authorities, the Claimants have failed to prove their reliefs 4 and 5 against the Defendant. 

42.        Counsel further contended that it is not for an employee to establish what are his entitled salary and other remunerations, as that appears to be within the domain of the employer. In offering judicial validation to the foregoing legal explication cum submission, the Penultimate Court of the Land, in AHARANWA V. PEOPLES BANK OF (NIG) LTD & ANOR (2018) LPELR-43985(CA), articulated succinctly inter alia to wit:

“I have not also seen where the Appellant led evidence to establish her calculations, and the claim that she was short paid (or under paid) her gratuity by over N250,000.00. She had earlier hinted in Exhibit B4, that her salary was grade level 5.2 not 5.1, and so her annual total package was (not N334,024.37 proposed by the Exhibit B3, as her gratuity). The Respondents did not react to the Appellants claims in Exhibit B4, and as long as no reconciliations were made in that regard, Appellant, certainly, had difficulties establishing the reliefs (b) and (g) as to the alleged N250,119.24 under payment. The findings of the trial Court thereon cannot be faulted, when it said: His calculations were therefore inaccurate, since they did not take into account modifications to Exhibit A. I therefore cannot conclude that the Plaintiff's gratuity was under paid and that she is entitled to the sum she is claiming for... The Plaintiff did not present evidence to the effect that her pension payments, when they become due for payment are to be progressive and ought to reflect salary increments made to officers of the category at which she retired as she has claimed. It is trite that civil Suits are decided on the balance of probabilities. Having placed the evidence adduced by the Plaintiff and the Defendants on the imaginary scale of justice... it tilts in favour of the Defendants... Consequently, the Plaintiff's claim fails and this Suit is dismissed." (See pages 284 - 285 of the Records). It is not for an employee to establish what are his entitled salary and other remunerations, as that appears to be within the domain of the employer, except and until the employee is paid by the Employer, as per their agreement. It is then that the employee can have something to produce (the last pay slip) as evidence to establish his claims as to the prevailing pay package. Per MBABA, JCA (Pp. 30-31, paras. A-D).”

43.        Counsel submitted that in the light of the above judicial authorities and our evaluation of evidence cum legal arguments, and considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have failed to prove their claims of gratuity entitlement against the Defendant. counsel urged the court  to find and hold the same. 

44.        Issue 4: Whether considering the totality of the pleadings of the parties and the evidence adduced before this Court, it can be rightly adjudged that the Claimants have proved their cost of action claim against the Defendant?

45.        Counsel submitted that the Claimants, by their relief 7, are praying this Court to award in their favour the sum of #2,000,000.00 (Two Million Naira) as cost of action against the Defendant. According to counsel, cost of action is one of the reliefs that is categorized to have fallen under the legal umbrella of special damages, and for an Applicant to be entitled to the same, the same must be specifically pleaded, particularized and strictly proved with credible and cogent evidence. To support this position counsel relied on the cases of AJIKAWO v ANSALDO (NIG.) LTD [1991] 2 NWLR (PT.173) 362 @ 373, PAR. C; FEDERAL HOUSING AUTHORITY v WARNER AND WARNER INTERNATIONAL ASSOCIATES (NIG.) LTD [1986] 5 NWLR (PT.42) 473; ATTORNEY-GENERAL ANAMBRA STATE v C. N. ONUSELOGU ENTERPRISES LTD [1987] 4 NWLR (PT.66) 547; DUYILE v OGUNBAYO AND SONS LTD [1988] 1 NWLR (PT.72) 601.

46.        Counsel contended that the Supreme Court, in lending its voice and stance regarding the above legal submissions, in REYNOLDS CONSTRUCTION COMPANY NIGERIA LIMITED v. ROCKONOH PROPERTIES COMPANY LIMITED (2005) LPELR-2947(SC), articulated and held thus:

“‘It is settled law that a claim for special damages must be specifically pleaded. See B.E.O.O. v. Maduakoh (1975) 12 SC 91 and Incar v. Benson (1975) 3 SC 117. Similarly, a claim for special damages must be strictly proved; See Shell B.P. v. Cole (1978) 3 SC 183, WA.E.C. v. Koroye (1977) 2 SC 45 and Agunwa v. Onukwue (1962) 2 SCNLR 275, (1962) 1 All NLR 537.’ Per OGUNTADE, JSC (Pp. 27-28, paras. E-A).”

47.        Counsel submitted that the Court of Appeal, in aligning itself absolutely to the above enunciation cum postulation of the Apex Court of the Land and also paying obeisance to the long outstanding principle of stare decisis or judicial precedent, in THE COUNCIL, ADAMAWA STATE UNIVERSITY & ORS v. ALHAJI NUHU WAKILI (2021) LPELR-54756(CA), adumbrated and elucidated to wit:

“When it comes to special damages, the Plaintiff is claiming that the unlawful act of the Defendant, caused some specific and quantifiable damage reducible to cash. This sort of damages must be specifically pleaded and strictly proved in order to be awarded by a trial Court. The Supreme Court restated this settled principle of law in the case of ONYIORAH v. ONYIORAH & ANOR (2019) LPELR-49096(SC), thus: "Special damages must be specially pleaded and strictly proved by the claimant. To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the Court as to how the sum claimed as special damages was quantified.’ See: REGISTERED TRUSTEES OF PEOPLE CLUB OF NIGERIA v. REGISTERED TRUSTEES OF ANSAR-UD-DEEN SOCIETY OF NIGERIA & ORS (2019) LPELR-47523(CA)." Per TUKUR, JCA (Pp. 15-16, paras. F-D).”

48.        Again, same Court of Appeal, in reaffirming the above position of law, in ROBA INVESTMENT LIMITED v. AREWA METAL CONTAINERS LTD (2010) LPELR-4900(CA), expatiated and sensitized all legal minds to wit:

‘’...It must be noted that this heading of damages fell under special damages, therefore, whether they were disputed, contradicted, challenged and debunked or not by the Respondent, those damages must be specifically and strictly proved by the Appellant as required by the law Special damages consist of those items which must be specified before they may be proved and recovered, therefore, it would be improper for a trial Judge to award special damages on inconclusive facts given from memory which have not been documented anywhere, and the trial Judge cannot make his own individual assessment, but, must act strictly on the evidence before him which he accepts as establishing the amount to be awarded. The Court is not entitled to do any arithmetical calculations for the parties.’ Per ORJI-ABADUA, JCA (Pp. 42-43, paras. F-D).”

49.        In ENGINEER AUGUSTINE EZEANI v. MR. INNOCENT ANIUNOH (2012) LPELR-19940(CA), same Court echoed thus:

“‘It is now well established that a claim for special damages must not only be specifically pleaded, strict proof thereof is fundamental. It has to be strictly pleaded, particularized and established by credible evidence. See Nwanji v. Coastal Services Nigeria Limited (2004) 11 NWLR (pt. 885) 552, Johnson v. Mobil producing Nigeria Unlimited (2010) All FWLR (Pt. 530) 1337. Special damages consist of all items of loss which must be specified by the plaintiff before they may be proved and recovery granted." Per OKORO, JCA (Pp. 29-30, paras. E-A).”

50.        Finally on this point, the Court of Appeal, in EGYPT AIR LIMITED v. RAHIUA YUSUF IBRAHIM & ANOR (2021) LPELR-55882(CA), extensively expatiated to wit:

“‘It is axiomatic in our jurisprudence that a claim in the nature of special damages must be specifically pleaded with particulars and strictly proved - Agi Vs Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121, Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt. 1411) 166, British Airways vs Atoyebi (2014) 13 NWLR (Pt 1424) 253. In the case of Ajigbotosho Vs Reynolds Construction Co., Ltd (2018) LPELR-44774(SC), the Supreme Court made the point thus: "To start with, special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. For a claim in the nature of special damages to succeed, it must be proved strictly AND THE COURT IS NOT ENTITLED TO MAKE ITS OWN ESTIMATE ON SUCH A CLAIM. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence." Per ABIRU, JCA (Pp. 23-24, paras. B-A).”

51.        Counsel submitted that a painstaking perusal of the pleadings of the Claimants will indisputably show that there is nowhere in the said pleadings of the Claimants where they specifically plead the alleged cost of action of 2 million naira. There is also nowhere in the said pleadings where they particularized on how they came up with or arrived at the said sum of 2 million naira as the cost of action. They have also failed to adduce any credible evidence to strictly prove the same by tendering in evidence any expenditure receipts to that effect. Thus, they have failed completely to prove their entitlement to their claim for cost of action. 

52.        Counsel further argued that it is unethical for any Court of law to grant a claim for cost of litigation/action under Nigerian Legal System. This is because costs of litigation/action do not form part of the cause of action. The Court of Appeal, affirmed the foregoing legal argument, in DHL INTERNATIONAL NIGERIA LIMITED v. OBIAGELI EZE-UZOAMAKA & ANOR (2020) LPELR-50459(CA).

53.        To further support the above arguments counsel placed reliance in the case of UNITED BANK FOR AFRICA PLC v. VERTEX AGRO LIMITED (2019) LPELR-48742(CA).

54.        In concluding his submission counsel submitted that the claimant is not entitled to any of the reliefs sought, counsel urged the court to dismiss same for lacking in merit.

THE SUBMISSION OF THE CLAIMANTS.

55.        Innocent Okon, Esq; counsel for the claimants adopted the claimants final written address franked by him as his argument in this case. In the final written address five issues were formulated for determination. They are as follows:-

1.   Whether there was an employment relationship between the claimants and the defendant.

2.   Whether the claimants are entitled to unremitted pension funds.

3.   Whether the claimants are entitled to the pay off as stated in the defendant’s handbook.

4.   Whether the claimants are entitled to damages.

5.   Whether the claimants are entitled to cost of action.

56.        Issue 1: in arguing issue 1, counsel answered in the affirmative and went t o refer to  exhibits A, B, C, and D, showing that there was an employment relationship between the claimants and the defendant. Counsel also refers to exhibit DW1A, which shows claimants were on pay roll of the defendant. It is submission of counsel that in law facts not denied are deemed to be admitted. Also pleadings not controverted or specifically denied, or evidence that is unchallenged are all deemed admitted. The cases are Obi v Nzewuihe & Anor (2020) LPELR-49720; Mabamije v Otto (2016) NGSC 74, SC; SSS v Wechie (2021) LCN/15575(CA), were relied on by counsel in support of this submission. 

57.        It is also the submission of counsel that letters of appointment serve as proof of employment relationship. In support of this contention counsel relied on Ayagu v JAMB (2022) LPELR-58537(CA), Skye Bank v Adegun (2024) LPELR-62219(SC), counsel argued that this case shows importance of proper documentation and compliance with employment contract to avoid liability for wrongful dismissal.

58.        Counsel submitted that there is a valid employment relationship between the parties which was properly documented. Counsel urged the court to hold.

59.        Issue 2: whether claimants are entitled to unremitted pension funds. 

60.        Counsel also answers this issue in the affirmative as the claimants have averred both in their claim, witness depositions and exhibits that the defendant deducted 20% of the 1^st claimant’s salary to pay same into the claimants’ pension scheme account and refused to remit same after deductions for two years. Counsel further stated that the monthly salary was N50,000.00 for the 1^st claimant and N75,000.00 for the 2^nd claimant. The 20% deduction amounts to the sum of N10,000.00 and N15,000.00 deducted per month from February, 2022 to the Month of November, 2023. The defendant upon denial never showed how it paid or remitted the said pension deducted from the claimants’ salary for the said period for years.

61.        According to counsel the defendant had the pension deducted form submitted to the pension scheme Board, but the defendant failed and refused to exhibit the said document which the claimants does not have access to.

62.        Issue 3: whether the claimants are entitled to the pay off as stated in the defendant’s handbook.

63.        Counsel submitted in arguing this issue that the defendant’s handbook states that a staff must work with the company for not less than 5 years to be entitled for all the entitlements demanded by the claimants. The claimants have worked for the defendant for more than 5 years. The 1^st claimant worked for 9 years while the 2^nd claimant worked for 14 years and they are all qualified for the payoff demanded by the claimants.

64.        Issue 4: whether claimants are entitled to damages.

65.        Counsel submitted that where a party breaches a contract or cause a contractual relationship between parties to be broken that the other party is entitled to compensation as damages to compensate the other party for the injuries suffered. In support of this submission reliance was placed on the cases of Abusomwan v M. B. N. Ltd (12987) 3 NWLR (Pt.60) 196; F.C.D.A. v Naibi (1990) 3 NWLR (Pt.138) 270, Balogun v Amubikh Attan (1985) NWLR (Pt.1) 27, Makanbe v Alao (1989) 3 NWLR (Pt.108) 118.

66.        According to counsel the defendant has defaulted and has caused the claimants to institute the action and the claimants have suffered damages and deserve to receive both exemplary and general damages to compensate for non-pecuniary losses. In support of this contention reliance was placed on the cases of FRN v Chief mike Ozekhome (SAN) (2021) LPELR-54666(CA), and Olarenwaju Osinaike, Esq; v Coronation Merchant Bank Ltd (2021) LPELR-53591(CA), where the court awarded professional fees to the claimant counsel on a quantum meritus bases, emphasizing the entitlement to payment for services rendered.

67.        Issue 5: whether claimants are entitled to cost of action.

68.        In arguing this issue counsel answer in the affirmative. Counsel submitted that claimants are young people who risked their lives, suffered and worked for the defendant for 9 and 14 years respectively. The claimants have made lots of profit for the defendant and promoted the defendant’s business for these number of years. And deserves better treatment than subjects the claimants into expending money to pay legal fees, filing fees and appearances fees every day the matter came up. Even as the lawyer is coming in  from Uyo, Akwa-Ibom State and will pay hotel to attend court early to do the matter.

69.        According to counsel the legal fees was N1,000,000.00 (One Million Naira) filing fee N200,000.00, appearance fees of N80,000.00. To support his contention counsel relied on the cases of FRN v Chief mike Ozekhome (SAN) (2021) LPELR-54666(CA), and Olarenwaju Osinaike, Esq; v Coronation Merchant Bank Ltd (2021) LPELR-53591(CA).

CLAIMANTS RESPONSE TO DEFENDANT’S WRITTEN ADDRESS:

70.        The claimants in their final written address also canvassed argument in response to the issues formulated by the defendant for determination by the court. The response is as follows:-

71.        In reaction to the defendant’s issue 1, it was submitted that exhibits B, C, H and I, are clear evidence of contractual relationship between the claimants and the defendant. In support of this position counsel relied on the case of Ayogu v JAMB (2022) LPELR-58537(CA), where the court held that a letter of employment creates an employment relationship.

72.        Counsel also refers to exhibit A, the defendant’s handbook page 26 ratio 6.5 and submitted that the defendant did not comply with the above company’s policy as the defendant breached the agreement it had with the claimants. The 1^st claimant worked for 9 years while the 2^nd defendant worked for 14, both have qualified for gratuity, but was never paid. 

73.        In reaction to issue 2: Whether considering the totality of the pleadings of the parties and the evidence adduced before this court, it can be rightly adjudged that the Claimants have proved their pension claim against the defendant.

74.        In answer to the argument on this issue, counsel stated that exhibit A, which is the Defendant’s company Handbook in page 26, Ratio 6.5. state both the retirement age, the minimum years of service, the gratuity and the pension scheme, according to the Pension Act of the Defendant Company(sic) which exhibits C and D of the claimant, showing their pension certificate and  the Claimants Retirement Savings statement of account, captioned NLPC Pension fund administrator Ltd with RSA PIN: PEN100824511912,

75.        Counsel submitted that the Claimants basic salaries of 50,000 monthly with 20% for 2 years was deducted by the Defendant without remitting same to the Claimants upon resignation. The 1^st Claimant’s last monthly salary was N50,000.00  and 20% was deducted from his salary for two years which amounted to N1,080,000.00. For the 2^nd Claimant his last monthly salary was N75,000,00 and 20% was deducted from his salary for 2 years without remittance which amounted to N2,520,000,00.

76.        The Defendant intentionally refused to bring to this court the Pension register/records which shows the deductions of the pension scheme money of the Claimants as also captioned in the Defendant’s Handbook. 

77.        The argument of the Defendant that the Claimants have not led enough evidence to prove their case as the Claim in a declarative relief is misconceived as the Claimants have led evidence with relevant documents which are exhibits before this court to show the contractual relationship between the defendant and the Claimants. According to counsel the Defendant’s argument on this point is baseless and not supported by the law.

ANSWER TO THE DEFENDANT’S ISSUE NO. 3.

78.        Whether considering the totality of the pleadings of the parties’ and the evidence adduced before the court it can be rightly adjudged that the Claimants have proved their claims of gratuity entitlement against the Defendant.

79.        In reaction to this issue counsel refers to page 26 ratio 6.5 of exhibit A, the Defendant’s Handbook, as it speaks for itself. To support this contention counsel relied on the decision in the case of Ashaka Cement plc v, Asharatul Mubashshurum Investment Ltd (2019) LPELR-6541(SC). 

80.        Counsel also submitted in law address of counsel cannot take the place of evidence; In Justus Nwabualu & Ors v, Francis Onward and Ors (2006) LPELR – 2082 (SC), Ibori v, Agbi & Ors (2004)6 NWLR (Pt, 868) 18 at 136, Torti v. Ukpabi (1984) 1 SCNLR 214, the court stated that no matter how beautiful an Address may be,  it cannot take the place of evidence.

81.        Counsel submitted that the 1^st claimant resigned with a gross salary of N50,000.00, exhibit DWIE of the Defendant showing the Claimants’ monthly salary to be N49,000.00 is not correct. According to counsel the said exhibit showing Claimants captures of their salary and names of staff is a manipulated document for the purpose of this case. This is because the said register does not capture the name and salary of the only defendant witness who also claim to be a staff of the defendant. The name of Mr. Meshach Nyong who also admitted in evidence, during cross examination on the 21^st May, 2025, said yes my name is not on the exhibit DWIE.

ANSWER TO DEFENDANT’S ISSUE NO, 4,

82.        In response to issue 4 counsel submitted that the law is that cost follows events. The Claimants have pleaded the special damages of cost of action which is at the discretion of the court. Counsel submitted that the claimants counsel office is at No. 174 Ikot Ekpene Road, Uyo Akwa Ibom State and have put almost 10 appearances in this matter, paying for Hotel and transport to and fro Akwa Ibom State added to the counsel professional fees which makes N2,OOO,OOO.OO to be adequate for the legal fees  as special damages incurred in this case. The legal fees N1,000,000.00, Filing fees  N200,000.00, Appearance fees  N80,000.00 for 1Q appearances  N800,000.00, Total N2,000,000.00

83.        In concluding his argument, counsel submitted that the claims of the claimants were presented in accordance with the Rules of this court, and facts were pleaded with documents admitted in proof of the case of the claimants. The Defendant both in her pleading, evidence and document has not debunked that there was an employment relationship between parties or that the evidence, facts and documents presented by the Claimants are false.

84.        On  the basis of this argument counsel urged the court to hold that claimants have proved their case and are entitled to all the reliefs sought.

COURT’S DECISION.

85.        I have carefully perused the processes filed in this suit by the parties, the evidence led at the trial, as well as the written and oral submission of counsel for the parties.

86.        From the pleadings and evidence before the court, the case of the claimants borders on alleged deductions of 20% from their respective salary for two years without remittance of the same into their retirement savings account with NPFL. There is also the claim for terminal benefit as provided for by the Employee Handbook exhibit A, the conditions of service governing the employment of the claimants with the defendant.

87.        By the translucent and unambiguous provisions of sections 131, 133 of the Evidence Act, 2011, as amended, in 2023, a party who claim entitlement to certain rights has the burden of proving entitlement to the rights being claimed. He who asserts must prove. The claimants in this case who want this court to render judgment in their favour are duty bound to prove entitlement to the claims before the court by credible admissible evidence if they want this court to give judgment in their favour.

88.        The cardinal and sacrosanct principle of law of evidence demands that any person who asserts the existence, occurrence, or condition of any fact must bear the burden of proving what he asserts. This has been codified in relation to civil matters in Section 131 (1) & (2) of the Evidence Act, 2011. To entitle the person to judgment of the Court he must not only prove what he asserts but must succeed on the strength of his case not on the weakness of the defendant's case or upon admission on pleadings. See Alhaji Balogun v. Alhaji Labiran (1988) 3 NWLR (Pt.80) 66; Egbunike v. A.C.B Ltd. (1995) 2 NWLR (Pt.375) 34.

89.        In the case presented to the court by the claimant in this case there are a total of seven reliefs being sought by the claimants. The 1^st to 5^th reliefs are for 20% deductions from salary for 2 years without remittance into the claimants retirement savings accounts with NPFL, pension fund administrator. There are also claims for 20% of claimants’ salaries for the number of years they respectively served the defendant, as terminal benefits as provided for in the Employees handbook, exhibit A. The 6^th relief is for the sum of N10,000,000.00 (Ten Million Naira), general damages. And the 7^th relief is for the sum of N2,000,000.00 cost of this action.

90.        I shall first consider the reliefs on bordering on 20% deduction from salary for 2 years without remittance of the same into the claimants’ retirement savings account with NLPC, pension fund administrators.

91.        From the pleadings and witness statement on oath, the 1^st claimant is claiming the sum of N240,000.00 in figures and in words he is claiming the sum of (Two Hundred and Fifty Thousand Naira) as 20% deductions from his salary for 2 years without remittance to the pension fund scheme. For the 2^nd claimant his claim is for the sum of N320,000.00 (Three Hundred and Twenty Thousand Naira), being 20% deduction from 2^nd claimant’s salary for 2 years without remittance into his retirement savings account with the NLPC, pensions fund administrators. 

92.        The defendant denied the claim for deducting 20% from claimants’ salary as pension deduction. The defendant stated that the deductions of pension contribution from claimants’ salary is as allowed by the Pension Reform Act, 2014, the contribution of the defendant as employer of the claimant was 10% while the claimants’ contributed 8% which was deducted and paid into their retirement savings accounts with NLPC, Ltd. 

93.        Let me say that the Pension Reform Act, 2014, is in support of the position of the defendant on 10% contribution by the employer and 8% contribution by the employee, 8% is what the law has authorized to be deducted from the salary of employee as his contribution to be deposited into his retirement savings account. The employer and employee’s contribution as provided for by pension reform Act are paid into the retirement savings account of the employee with pension fund administrator. See section 4(1) (a) and (b) of the Pension Reform Act, 2014. The Pension Reform Act has made provision for an employee to make additional contributions into his retirement savings account.

94.        In the case at hand the claimants have asserted that 20% were deducted from their salary for 2 years without the said 20% deductions remitted into their retirement savings account. If this claim is proved to be true the defendant has violated the law. Indeed, the defendant disputed this claim. With the disputation by the defendant of this allegation it has become incumbent on the claimant to prove their assertion with credible admissible evidence otherwise their claim will fail due to lack of proof. I have scrutinized exhibits A to M tendered by the claimant in support of their case, but there is no iota of evidence adduced by the claimants to support their claim for 20% deductions from their salary for 2 years and non-remittance of same into their respective retirement savings account. The claimants would have succeeded if they had tendered their pay slip or bank statement of accounts or any other document to show that there was an agreement between the claimants and the defendant for 20% to be deducted from their salary and the same to be remitted into their respective retirement savings account. Alas there was no such evidence before the court. 

95.        I am in agreement with the defendant that the law permits deduction of 8% from employees’ salary as his/her contribution to be paid into his/her retirement savings account. The law has equally mandated the employer to contribute 10% of claimants’ salary to be paid into the claimant’s retirement savings account.

96.        The claimants have also failed to call the officials of NLPC, pensions fund administrators, that told them the defendant has not been remitting their contribution into their savings accounts. Exhibit L cannot be of any assistance to the claimants’ case as the said statement of account was for the quarter ending 31^st March, 2018. Exhibit L is also evidence in proof of 10% and 8% contribution to the claimant’s retirement savings account.

97.        In view of the foregoing, the claimants have woefully failed to prove the alleged 20% deductions from their respective salary for 2 years without remittance into their retirement savings accounts as there was no such evidence from their pension fund administrators (NLPC).

98.        However, let me make it very clear that if the claimants have succeeded in proving non-remittance of 20% deduction, which they have not, the order the court would have made is to order such unremitted amounts which the claimants are entitled are to be paid directly to their retirement savings account for them to claim same from their pension administrator in line with PENCOM guideline on accessing retirement savings funds with the administrator. The law imposes a duty on employers to keep record of employees’ pension remittances. See UAC RESTAURANT LTD v. MR AFOLABI ASIMIYU (2022) LPELR-59237(CA); SeeIyere v Bendel Feed and Flour Mill Ltd (2008) LPELR-1578 (SC), UBN Plc. V Chimaeze (2014) LPELR-22699(SC)."

99.        I now turn to reliefs 4 and 5, which are for the sum of N1,080,000.00 (One million Eight Thousand Naira) being 20% of the sum calculated as the 1^st claimant’s pay of and the sum of N2,520,000.00 (Two Million Five hundred and Twenty Thousand Naira) to be paid to 2^nd defendant.

100.     This concerns the claimants’ eligibility for terminal benefits based on their length of service. The Defendant’s handbook as per clause 6.5 of exhibit A, (handbook) has made provision for entitlement to terminal benefits upon resignation. The handbook requires an employee to serve for a minimum 5 years of service for an employee to be entitled to 'pay off' benefits. The parties in this case are agreed that the 1^st Claimant served for 9 years some months and the 2^nd Claimant served for 14 years, this clearly shows that the claimants have met the requirement for entitlement to terminal benefit, as per clause 6.5 of the staff handbook exhibit A. The Claimants have argued in their address that the refusal to pay these entitlements, coupled with the illegal withholding of pension deductions, constitutes a breach of the employment contract as defined by the handbook.

101.     The Defendant has vide paragraph 7 of the amended statement of defence stated that the defendant did not refuse to pay the claimants gratuity entitlements which is 20% of the claimants salary for number of years they respectively worked for the defendant, in line with the defendant’s employees handbook as per clause 6.5, but, the defendant only asked for some time to make requisite calculation and effect payment, but the claimants refused and went ahead to institute this suit on 13/2/2024. There is no doubt the evidence before me clearly establish that the defendant in this case has admitted not paying claimants their entitled terminal benefits as per exhibit A. Clause 6.5 of exhibit A, the conditions of service has made it very clear that:

‘’Any employee leaving the service of the defendant on retirement, resignation and termination (not summary dismissal) with a minimum of 5 years of service shall be entitled to could be accessed in line with the stimulates  of the pension Act, as amended gratuity equal to 20% of gross salary for the number of years completed. Any employee who did not resign properly as provided in the conditions of service or dismissed for misconduct shall not be eligible for any gratuity. This gratuity comes in addition to his/her pension contributions which is managed and could be accessed in line with the stipulates of the pension Act, as amended ….’’

102.     It is clear from the foregoing provisions of exhibit A, staff handbook, that the claimants having served the defendants for more than five years are qualified, eligible and entitled to be paid 20% salary for the number of years they served the defendant as gratuity.

103.     However, for the court to ascertain whether what the claimants are claiming as their gratuity as per clause 6.5 of exhibit A, is the correct, the claimants are required to establish before the court what is their gross salary per month. If the claimants’ salaries are ascertained the 20% of the said salary will be multiplied by the number of months for the years the claimants served the defendant. 

104.     In their pleadings and evidence on oath the claimants have stated their monthly salary. For the 1^st claimant N37,000.00, subsequently increased to N50,000.00. For the 2^nd claimant’s salary was given as the sum of N65,000.00 which was also increased to N75,500.00 per month. 

105.     However, the defendant has denied the correctness of the claimants’ salary. In her pleading and evidence, the defendant has stated that the 1^st claimant’s salary per month was the sum of N49,000.00, while that of the 2^nd claimant was put at the sum of N75,500.00 as at the time they resigned their employment. To support her position the defendant tendered in evidence exhibit DW1E, pay roll for October, 2023 salary. In the said payroll the gross salary of the 1^st claimant was given as the sum of N49,000.00. While that of the 2^nd claimant was given as the sum of N75,500.00.

106.     In view of the absence of pay slips, which would have conclusively established the claimants’ gross salary, I have no choice than to accept the version of the defendant’s story on salary of the claimants, which in law amounts to admission against interest.

107.     From the foregoing, 20% of 1^st claimant’s monthly salary will be the sum of N9,800.00 if this amount is multiplied by number of months for Nine years of service, the amount the 1^st claimant will be entitled to as his terminal benefit as per clause 6.5 of exhibit A, will be the sum of N1,058,400.00 being entitlement for 9 years service. While the 2^nd claimants 20% salary of his gross salary at N75,500.00 per month will be the sum of N15,100.00, if this amount is multiplied by 168 Months which is for 14 years of service to the defendant, the 2^nd claimant’s 20% terminal benefit for number of years of service will be the sum of N2,536,800.00. The claimants having proved their entitlements to terminal benefit as per clause 6.5 of exhibit A, the condition of service, they are entitled to reliefs 4 and 5, respectively. These reliefs are hereby granted.

108.     By relief 6, the claimants are claiming the sum of N10,000,000.00 (Ten Million Naira) as general damages. The law is well settled that general damages cover losses which are not capable of exact quantification. They do not need to be specifically pleaded although some evidence of the damage is required. See Abi v. C.B.N.  (2012) 3 NWLR (Pt. 1286) 1. The law will presume it (general damages) to be the direct, natural or probable consequence of the act complained of but the quantification thereof is at the discretion of the court. See Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136; Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) 128; Badmus v. Abegunde (1999) 11 NWLR (Pt. 627) 493; Ajigbotosho v. Renolds Const. Co. Ltd (2019) 3 NWLR (Pt.1659) 287. The law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. See Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668.

109.     As far as the facts of this case are concerned, there is no evidence of damages occurring to the claimants, in the circumstance of this case, the court having granted the claimant’s claim on terminal benefit it will amount to double compensation to grant general damages to the claimants. This means relief 6 fails the same is hereby refused and dismissed. 

110.     The last relief is relief 7, seeking for payment ofN2,000,000.00 (Two Million Naira) as cost of this action. There is no evidence adduced to show how the claimants expended Two million Naira in prosecuting this case. However, since the law is that cost follows events, and claimants prosecuted this case and succeeded in part, I award N500,000.00 (Five Hundred Thousand Naira), cost against the defendant in favour of the claimants.

111.     For purposes of clarity the orders of the court are as follows:-

                     i.        The 1^st claimant has proved entitlement to terminal benefit of 20% of his salary for the 9 years of service rendered to the defendant, as granted per clause 6.5 of exhibit A, the staff handbook. The defendant is hereby ordered to pay to the 1^st claimant the sum of N1,058,400.00 (One Million Fifty-Eight Thousand Four Hundred naira) being 20% of his salary of N49,000.00 for 9 years’ service rendered to the defendant.

                    ii.        The 2^nd claimant is entitled to 20% salary for 14 years of service to the defendant at the rate of N75,500.00 per month. The defendant is hereby ordered to pay to the 2^nd claimant the sum of N2,520,000.00 as 20% of his salary for 14 years at N75,500.00 per month.

                   iii.        Relief 6 failed, the same is hereby refused.

                  iv.        The claimants are entitled to cost which I assessed at the sum of N500,000.00 Five Hundred naira) only. The defendant is hereby ordered to pay cost to the claimants in the sum of N500,000.00 (five hundred naira) only.

                    v.        The monetary component of this judgment shall be settled within 30 days failing interest 10% simple interest per annum shall apply.

112.     Judgment is hereby entered accordingly.

 

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Victor Egba, Esq; for the defendant.