Mr Emmanuel Oparaocha -VS- Fidelity Bank PlcNational Industrial Court of Nigeria- Judgment Portal

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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA

THIS MONDAY, 28^TH DAY OF OCTOBER, 2024

SUIT NO: NICN/LA/18/2020

BETWEEN

MR. EMMANUEL OPARAOCHA–--------------------------------------------- CLAIMANT

AND

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

JUDGMENT

This action was commenced by a General Form of Complaint dated and filed 16^th January 2020, wherein the Claimant sought from this court against the Defendant the reliefs as stated therein. With the leave of court, the claimant withdrew one of the 2 separate amended general form of complaints dated and filed on 10/6/2022 along with the accompanying processes due to omission of counsel’s signature and then relied on the processes filed on 17/11/2023. The processes withdrawn was accordingly struck out. By his General form of complaint of 17/11/2023, the claimant sought from this court against the defendant the following reliefs:

a. A DECLARATION that the Claimant is entitled to his End of Service/retirement benefits having attained approximately 15 years of unbroken service with the Defendant in line with paragraph 7.20.2 of the Defendant's Personnel Polices and Procedure Guide (PPPG) on staff retirement before it was abrogated via an email dated 23^rd December 2016.

b. IN ALTERNATIVE TO RELIEF A ABOVE; A DECLARATION that the Claimant is entitled to pro-rated End of Service/ retirement benefits having worked for 14 (Fourteen) years and 11 months of unbroken service with the Defendant before the Defendant's Personnel Polices and Procedure Guide (PPPG) was abrogated via an email dated 23rd December 2016.

c. A DECLARATION that the Defendant's approach of paying some of the Claimant's colleagues full retirement benefits or pro-rated retirement benefits without paying the Claimant is discriminatory and unfair labour practice.

d. A DECALARATION that the Claimant is entitled to his January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP).

e. A DECLARATION that the Defendant's failure to make any payment with respect to the Claimant's retirement benefits, January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP) is a breach of contract and unfair labour practice.

f. AN ORDER directing the immediate payment to the Claimant by the Defendant the sum ofN35,356,025.5 (Thirty-Five Million, Three Hundred and Fifty-Six Thousand, Twenty-Five Naira, Five Kobo), being the Claimant's retirement benefits due to the Claimant.

g. IN ALTERNATIVE TO RELIEF F ABOVE; AN ORDER directing the immediate payment to the Claimant by the Defendant the sum of N35,120,320.65 (Thirty-Five Million, One Hundred and Twenty Thousand, Three Hundred and Twenty Naira, Sixty-Five Kobo) being the Claimant's prorated retirement bene fits due to the Claimant.

h. AN ORDER directing the immediate payment to the Claimant by the Defendant the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), being the Claimant’s January 2018 salary due to the Claimant.

i. AN ORDER directing the immediate payment to the Claimant by the Defendant the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), being the Claimant’s one-month salary in lieu of a notice due to the Claimant.

j. AN ORDER directing the immediate payment to the Claimant by the Defendant the sum of N106, 733.30 (One and Six Thousand, Seven Hundred and Thirty-Three Naira, Thirty Kobo), being the Claimant’s 2017 annual share of profits (SOP) due to the Claimant.

k. AN ORDER directing the Defendant to refund or cancel all interests charged on the Claimant’s account by the Defendant on the sum of N2,217,369.07 (Two Million, Two Hundred and Seventeen Thousand, Three Hundred and Sixty Nine Naira) being the alleged unearned allowances given to the Claimant by the Defendant.

l. AN ORDER directing the Defendant to pay to the Claimant interest at the rate of 35% per annum on the Claimant’s unpaid retirement benefits, January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP) from January 2018 until judgment is given in this suit.

m. AN ORDER directing the Defendant to pay to the Claimant the sum of N45,000,000 (Forty Five Million Naira) only as general damages for unfair labour practice, failure to pay January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP) and failure to honour the Personnel Policies and Procedures Guide (PPPG), which have resulted in psychological trauma, shock, mental agony, psychological depression, embarrassment, inconveniences and financial impecuniosity to the Claimant.

n. Interest on the judgment sum at the rate of 21% per annum from the date of judgment until the judgement sum is fully paid.

o. The cost of this suit.

The Defendant in response, filed a memorandum of appearance, statement of defence and counterclaim on 10^th March, 2020. The defendant amended their statement of defence and counterclaim on 3^rd June, 2022.

CASE OF THE CLAIMANT

From the pleadings filed by the Claimant and his testimony, he was employed by the Defendant in February, 2002 and continued to be in the employment of the Defendant until January, 2018 when the Defendant without any reason breached the contract by terminating the contract of employment. The Claimant worked for the Defendant under the Defendants Personnel Policies and Procedure Guide (PPPG). Under the PPPG, the Claimant is entitled to end of service payment which has been deducted and set apart as reflected in the yearly annual returns. Paragraph 7.202 (a) and (b) of the Defendant’s PPPG makes voluntary retirement age in the service of the Defendant a minimum of 15years unbroken service or compulsory retirement at the attainment of 55years of age. The Defendant terminated the Claimant’s employment without paying the end of service entitlements. The claimant’s retirement benefits as provided by the Defendant’s retirement policy is N35,356,025.5. The Claimant has demanded for the payment but the defendant has refused to pay the end of service entitlements, claiming it has unilaterally stopped that payment. The Claimant relied on that payment for work for the Defendant for 15 years and was not queried, but met all his targets. It is also the case of the Claimant that his 2017 annual share of profits (SOP), January 2018 salary, and one-month salary in lieu of a notice were not paid to him by the Defendant.

CASE OF THE DEFENDANT

The case of the Defendant is that the claimant was employed on 8th February, 2002 by the defendant and on 18^th January 2018, the claimant’s employment was terminated by the Defendant through a letter of termination. Prior to the claimant’s termination of his employment, the defendant created a PERSONNEL POLICIES AND PROCEDURE GUIDE (PPPG) which in addition to the terms of employment contained some other terms to regulate the employment of the claimant. The said PPPG made provisions, which among others include termination of employment, and that the defendant can unilaterally change the provisions of the PPPG.

Then following the termination of the claimant’s employment by the Defendant, the defendant communicated to the claimant his final entitlement which showed that the claimant was given the specified amount due to him and his exposure to the bank by way of loans and upfront allowance; consequently, the claimant became indebted to the Defendant to the tune of N2, 217, 369.07 before share loan deduction as at the date of the termination. The claimant did not retire from the employment of the defendant but had his appointment terminated. In exercise of its powers under the Personnel Policies and Procedure Guide (PPPG), the defendant changed its policy on retirement and duly informed the claimant of the same. It is an uncontroverted fact that in 2016 the defendant changed its policy regarding retirement by abolishing the same; therefore, as at 2018 when the claimant’s employment was terminated, the defendant did not operate a voluntary retirement policy as the same was abolished two years before the termination of the claimant’s employment. The Claimant is now alleging being entitled to certain sums of money as a result of retirement from the defendant’s employment.

COUNTERCLAIM

The counterclaimant averred that the defendant in the original action repeats every fact contained in the relevant paragraphs of the defence and counter claim against the defendant to the counter claim. The claimant while in the employment of the defendant/counter claimant was granted different upfront allowances which included furniture, Housing, Transport allowances. The counter claimant averred that the claimant received all these allowances and as his employment was terminated, consequently he is to refund all unearned allowances which was N2, 217,369.07 (Two million, two hundred and seventeen thousand, three hundred and sixty nine naira, seven kobo) as at the 20^th March, 2018 when he was advised of his end of service. The counter claimant averred that the appointment of the defendant to the counter claim was terminated on 18^th January, 2018 against which the counter claimant wrote to the claimant on March 20, 2018 to demand for the payment of the unearned allowances. The counter claimant averred that despite receipt of the said letter, the defendant to the counter claim refused, failed and or neglected to liquidate his indebtedness to the defendant.

The counter claimant claims against the defendant to the counter claim the following.

a. The sum of N2, 217, 369.07 (Two million, two hundred and seventeen thousand, three hundred and sixty- nine naira, seven kobo) being the unearned allowances given to the claimant by the defendant/counter claimant.

b. Interest on the said N2, 217, 369.07 (Two million, two hundred and seventeen thousand, three hundred and sixty nine naira, seven kobo) at the commercial rate of 32 percent from July, 2018 until judgement and the rate of 10% till final liquidation of the loan.

REPLY TO THE STATEMENT OF DEFENCE AND DEFENCE TO THE COUNTERCLAIM OF THE DEFENDANT.

Claimant filed a reply to the statement of defence and defence to the counterclaim of the Defendant on 3/11/2020.

Counsel contended that in specific reply to paragraph 4a of the Statement of Defence, the Claimant restates that the letter of termination was served on him but no form of compensation or payment in lieu of notice was paid to him whatsoever. His entitlement under the PPPG was not paid to him. The Claimant averred further that he surrendered his shares with the Bank and the worth of the same was not paid to him. In specific answer to paragraphs 4b, the Claimant averred that in as much as the Defendant can review the provisions of the PPPG, it does not have the power to unilaterally change the contract it entered with the claimant nor remove the legally enforceable rights of the Claimant under the contract when the Claimant has pursuant to the provisions of the PPPG altered his position by relying on the provisions to render services to the Defendant for a long time and when the funds of the Claimant has been set aside in a pool and provided for in the books of the bank.

It is averred further in answer to paragraph 4c,d,e &f, wherein the Claimant stated that the changes in version 3.1 PPPG does not cancel the provisions of versions 2.1 PPPGs which are the primary versions governing the contract of the Claimant with the Bank. The said version 3.1 cannot operate retroactively to cancel obligations which have accrued for over 15 years of service to the Defendant. Clause 7.20.2 of version 1 PPPG therefore apply in the circumstances. More importantly, the obligations and the benefits created by the PPPG apply from 5 years of the services to the Defendant and the Defendant in notable occasions prorated the payment to staff of the Bank as clearly pleaded in the Claimants Statement of Fact before the Honourable Court.

It is contended specifically in reply to 4c, d, e & f, the Claimant averred that the so called “change referred to in the Statement of Defence does not apply to the Claimant as the claimant's entitlement has accrued though not paid and the money for the payment has been provided and set apart for the benefit of the Claimant. Furthermore, the Claimant did not retire or resign voluntarily but was disengaged unwillingly without any reason whatsoever. The version 3.1 PPPG cannot operate retroactively. The Claimant was systematically disengaged from the Bank by the Defendant in order to deny him his entitlement when he was just 14 years and 11 months which by approximation was just 15 years of service wherein he rose to the rank of a Deputy Manager.

In reply to paragraphs 4g & h, the Claimant averred that the so called advice of the End of service financial statement was not in line with the version 1 & 2.1 PPPG which captures the governing terms of the contract between the Claimant and the Defendant but one month payment in lieu of Notice when the Defendant unilaterally disengaged the Claimant without notice or reasonable justifications. The Claimant averred he was not paid anything but was entitled to the accrued benefits having attained the 15 years milestone. That many other persons were still paid prorated benefits upon being relieved of their appointments as in his case. The Claimant further averred that there were many correspondences from the Defendant which assured and re assured the Claimant of the security of their entitlement and had no reason to complain since he was still in the services of the bank.

In reply to paragraphs 4i, j, k & l, the Claimant averred that he suffered serious nervous shock, emotional trauma and financial deprivation as his yearly entitlement for health, housing, furniture, leave were deprived of him. In addition, all his indebtedness to the bank was forcefully taken from what has accrued in his pensions fund without a recourse to him and thereby pauperizing him further. His investment in shares with the Bank was surrendered to the bank without payment till date. Yet the Bank put lien on his Staff account making it impossible for him to access his account to solve basic family problems. These circumstances exposed the Claimant to odium and ridicule to the extent that the serving staff of the Defendant were no longer picking calls from the Claimant. The Claimant used his most active years to serve the Defendant without any rewards from the Defendant.

It is averred that the PERSONNEL POLICIES AND PROCEDURE GUIDE (PPPG) regulates the operations of the Defendant as well as the relationship between the Defendant and the staff operations, rights, obligations, entitlements and privileges. The PPPG versions 1, 2, and 3 are among the books ordinarily kept and stored by the Defendant and the Defendant has in store the original versions of the said PPPG.

The claimant states that the original copies of the letter of termination; letter of demand for payment of End of Service Entitlement and Letter surrendering shares and demand for payment by the Defendant (Bank) is in custody of and also among the books ordinarily kept and stored by the Defendant and the Defendant has in store the original copies of the documents. The LIST OF STAFF PAID THE END OF SERVICE ENTITLEMENT though not up to 15 years in service by the Defendant (Bank) is also among the books ordinarily kept and stored by the Defendant and the Defendant has in store the original copies of the list. The Claimant therefore pleaded the said lists and gave the Defendant NOTICE TO PRODUCE the said lists as mentioned above upon which the Claimant will rely as proof of all the averments in the Statement of Facts in this case before this Honourable court.

DEFENCE TO THE COUNTERCLAIM

It is stated that the defendant denies each and every allegations of facts contained in the Counterclaim, as if such allegations of facts were separately and specifically set out and traversed seriatim. The Claimant repeated all the averments in the relevant paragraphs of the Statement of facts and reply to the Statement of Defence. The Claimant contended that the payment for furniture, housing and transport were not loans or other kinds of facilities extended but allowances due and payable to the Claimant annually which became due and payable on the month of AUGUST every succeeding year. The allowances were due and paid in the month of August, 2017 and he worked meritoriously for yet another 6 months before his employment was terminated abruptly. It is the contention of the Claimant that the allowances were duly and properly earned for what they were and for the reason of a continued employment disrupted willingly by the Defendant.

It is the contention of the Claimant that having not obtained any loan from the Defendant, but received a due reward of labour, he owes the Defendant no money that can be recovered nor have any interest on it. In specific answer to paragraphs 9 & 10 a & b, the Claimant contended that he is not in anyway indebted to the Defendant of N2,217.07 and not any amount at all and there is no indebtedness upon which an interest can be charged. The Claimant restates his claim against the Defendant as contained in the Statement of facts in this case before this Honourable court. The Claimant claims further the worth of the fidelity Bank shares surrendered to the Bank, and urged the Honourable Court to dismiss the Counterclaim of the Defendant while upholding the claim of the Claimant with substantial costs against the Defendant.

TRIAL

Trial commenced on 20/5/2024, wherein CW1 Emmanuel Oparaocha adopted his witness statement on oath deposed to on 17/11/2023 another witness statement on oath deposed to on 3/11/2020, and tendered the following documents in evidence;

1. Letter of employment dated 30/1/2002- Exhibit CW1A.

2. Letter of termination dated 18/1/2018- Exhibit CW1B.

3. Letter of End of Service Statement dated 20/3/2018- Exhibit CW1C.

4. Letter of Congratulations and accompanying Certificate of Long Service dated 1/7/2012 and 8/2/2012- Exhibit CW1D (1&2)

5. Letter of special commendation dated 1/6/2005- Exhibit CW1E.

6. Staff Exit Clearance dated 18/1/2018- Exhibit CW1F.

7. Letter of promotion dated 21/3/2014- Exhibit CW1G.

8. Defendant’s Personal Policies and Procedures Guide (PPPG)- Exhibit CW1H.

9. Claimant’s Solicitor’s letter dated 27/3/2019- Exhibit CW1(I).

10. Two letters dated 1/6/2018 and 29/8/2019. Exhibit CW1J(1&2)

11. Email of 24/12/2014 and email of 23/12/2016- Exhibit CW1K(1&2).

12. Statement of account of Nwakaeze Steve Sopulu and Statement of account of the Claimant- Exhibit CW1L(1&2).

CW1 was thereafter cross examined by learned counsel to the Defendant and there was no re-examination. The case of the Claimant was then closed.

The Defendant opened their case on 3/7/2024, by calling its sole witness (Agwu Okorie), (DW1), Head, Works, Ethics and Engagement who adopted his witness statement on oath deposed to on 1/7/2024, and tendered the following documents as evidence.

1. The Defendant’s Internal Memorandum dated 24/12/2014- Exhibit DW1.

2. The Defendant’s Internal Memorandum dated 23/12/2016- Exhibit DW2.

3. The Defendant’s Personnel Polices and Procedure Guide (PPPG)- Exhibit DW3.

Accompanied by the document of certification under Section 84 of the Evidence Act.

DW1 was thereafter cross examined by learned counsel to the claimant. There was no re-examination. The case of the defendant was then closed.

DEFENDANT’S FINAL WRITTEN ADDRESS

Defendant filed their final written address on 13^th August, 2024, wherein counsel submitted the following issues for determination;

a. Whether as at January, 2018, the defendant still has gratuity and voluntary retirement as policies and if any staff of the defendant who has not attained the age of 55 years can retire, either voluntarily or otherwise, notwithstanding whatever number of years he may have worked for the defendant; and

b. Whether the claimant retired, resigned and or was his employment with the defendant terminated by the defendant;

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

Learned counsel submitted on issue one that the gratuitous payment and voluntary retirement as policies of the Defendant has been abolished at the time the Claimant could not and would not have voluntarily read therefore not entitled to the financial benefit on any of the grounds. The claimant tendered Exhibit CW8 which is version 2.8 of the defendant’s Personnel Policies and Procedure Guide (PPPG) and stated that Clause 7.20.2 of the PPPG made provision of his being entitled to retirement benefits after putting in more than 15 unbroken years of service into the employment of the defendant. However, the defendant in its paragraphs 4(b) (C)(d)(e) and (f) of the statement of defence acknowledges that there is a PPPG and the PPPG is subject to changes by the defendant. Based on the powers of the defendant to change the provisions of the PPPG, the defendant made changes in the PPPG in 2015 and 2016 and consequently created a new PPPG version 3.1. The changes made in the PPPG were communicated to the claimant. The claimant agreed that the changes were communicated to him in paragraph 11 of his amended statement of facts. The claimant also led evidence along the line of his pleadings under paragraph 12 of his witness deposition on oath.

Counsel submitted that in view of the facts pleaded and admitted, the claimant was fully aware that by the time he left the employment of the defendant; the defendant’s policy on gratuity and voluntary retirement had ceased and a staff can only retire on attainment of 55 years. This piece of evidence was never controverted. It is trite law that facts pleaded and admitted, need no further proof. Counsel submitted the case of 0ZU & ANOR V. ABIDI (2013) LPELR – 22871 (CA)

Counsel submitted that in further affirmation of this position, the claimant’s witness under cross examination confirmed that the defendant changed its policy on retirement by abolishing its policy on voluntary retirement in 2016. The witness also stated that when a version of the PPPG is changed the old one stopped applying to staff and the new one takes the place of the changed one. The defendant stated that by the time the claimant left the employment of the defendant, the PPPG that regulated his employment was version 3.1. It is the submission of counsel that throughout the gamut of the PPPG version 3.1 there is no provision pertaining to voluntary retirement; therefore, the claimant cannot voluntarily retire, even if he were to retire. As regards retirement, the PPPG only made provision for mandatory retirement of staff upon attainment of age 55 years.

On issue two, learned counsel submitted that the employment of the Claimant with the Defendant was brought to an end through termination being a fact pleaded and admitted and thus, requires no further proof. Counsel referred to Section 135 of the Evidence Act; OZU & ANOR V. ABIDI (2013) LPELR- 22971 (CA).

Counsel submitted that the Claimant tendered Exhibit CW8 which is version 2.8 of the defendant’s Personnel Policies and Procedure Guide (PPPG), and during trial, the defendant disputed that the said version 2.8 does not regulate the employment of the Claimant when he left. The Defendant has established that the Claimant’s appointment was terminated and going by the PPPG which the Claimant is relying on, the only obligation the Defendant owes any staff whose appointment is terminated is notification of the termination or payment in lieu of such notice. The Defendant pointed out that the Claimant is not challenging the termination, whether it was wrongful or otherwise, rather making claims bordering on retirement which he is not qualified.

It is the submission of counsel that it was PPPG version 3.1 that regulated the employment of the Claimant at the time he left the employment of the defendant. The said PPPG has no provision for voluntary retirement, but has provision for resignation, termination and dismissal. Therefore, the Claimant has no basis to sustain this action. The applicable version 3.1 of the PPPG made provision for termination under clause 5.5.2 yet, termination of employment does not attract any financial reward except as may be due to staff on termination. It is pertinent to note that probation of monetary benefits upon retirement can only be considered when the policy of voluntary retirement is an existing policy of the defendant. In the instant case, at the time of the claimant’s disengagement, the policy no longer existed, and the Claimant did not retire or resign, but was terminated by the Defendant.

Counsel further submitted that the Claimant is estopped from making claims bordering on the Defendant’s Personnel Policies and Procedure Guide version 2.8. Counsel referred to UGHUTEVBE V. SHONOWO (2004) 16 NWLR PT. 899 Page 30@332. The Claimant was duly notified of the stoppage of voluntary retirement, and despite being informed, he did not protest the review, he did not avail himself of the opportunity offered before the implementation of the stoppage and retire from the defendant’s employment, rather, he continued with his employment. Under the above circumstances, the Claimant is estopped from laying claims to non existing benefits, as the benefits had been abolished since 2016 to the knowledge of the Claimant. Flowing from the termination of his employment, his full entitlement was paid to him as indicated in paragraph 5 of his pleadings.

Counsel further submitted that where the court is so inclined as to hold otherwise and entertain this matter, under the contract of employment, where a Claimant asserts any infraction against the Defendant, it is for such Claimant to prove same. It is a settled position of law that he who asserts must prove. Therefore, it is for the Claimant to show by credible evidence that his disengagement from the service of the Defendant was by retirement and not termination. Counsel referred to Section 131 of the Evidence Act; ALHAJI AUDU MAIGORO V. ALHAJI MOHAMMED BASHIR & 2 ORS (2000) 11 NWLR PT. 679 , Page 453@ 464.

It is the submission of counsel that from the crux of the claimant’s case as gleaned from his pleadings are to the effect that the Defendant gave him the impression that he will always be entitled to benefits even when to his knowledge, the alleged benefits has been abrogated. These assertions the Defendant vehemently denied. This assertion is against the evidence of the case. The Defendant cannot abrogate a policy and still apply such policy except on special consideration which is not in this case. It would be seen that the financial reports made reference to and tendered by the claimant relates to 2014, 2015 and 2016 that captured funds to take care of the retirement benefits of persons who took advantage of the window offered and voluntarily left the employment of the defendant within the time allowed. When the defendant was done with that it stopped same; and this accounts for why the defendant made no financial provisions in its subsequent financial years.

Counsel submitted that assuming though not conceding that PPPG version 2.8 which the claimant tendered is still operative, the claimant still would not have been entitled to any benefits. By the clause 7.20.2 which the claimant made so much weather about provided that a person can only be entitled to the benefits enumerated; if such staff has attained 15 years unbroken service with the defendant and voluntarily retired. Therefore, for such a staff to be entitled, he/she must have retired and not terminated. As regards the claimant herein, he never retired but had his appointment terminated. Secondly, the claimant was employed on 8^th February, 2002, and had his appointment terminated on 1^st January, 2018. By a simple arithmetic calculation, the claimant has put in 15 years of unbroken service while the PPPG Version 2.8 was operative. Against this understanding, the Claimant would not have been entitled to any benefit had he even voluntarily retired in 2016.

On issue three, learned counsel submitted that the claimant has eleven reliefs. In claims a, b, c, d, and e, the Claimant sought declarative orders. Counsel submitted that the claimant is not entitled to any declarative reliefs. Declarative reliefs are made upon establishment of the state of affairs necessitating the declarations sought. Counsel referred to the Court of Appeal case of ECOBANK PLC VS. ANDREW MONYE (2022) 4 NWLR Pt 1820 pg 347 @ 363-364 where it stated that the position of the law with regards to grant of declarative reliefs is clear and to the effect that the court would not make declaration or grant declarative reliefs unless such reliefs have been proven by evidence by the party seeking such relief, regardless of whether or not the party on the other side filed evidence. Counsel also referred to the apex court in the case of Alao vs. Akano & Ors(2005) LPELR - 409 (SC) (2005) 11 NWLR (PT 935) 160 @160 PER Musdapher JSC gave guidelines on the grant of declarative reliefs thus;

“A declaratory judgment is also discretionary. It is the form of judgement which should be granted only in circumstances in which the court is of the opinion that the party seeking it, is when all facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour.”

Counsel submitted that the Claimant has not shown how he is entitled to the declarative reliefs sought. The Claimant failed to establish that Exhibit CW8 whereof he would have been entitled to any benefit, were he to have voluntarily retired regulated his employment when his appointment was terminated. Furthermore, the Claimant acknowledged under cross examination that the Defendant has the right to review the PPPG and after the review, the new PPPG starts regulating employment of staff. Also, in his pleadings and evidence, the Claimant acknowledged that the Defendant has stopped retirement benefits. Therefore, there is no basis for the declarative reliefs sought.

Counsel contended that by reliefs f, g, h, 1, j, k, l, and m the claimant is seeking for an order directing the payment of sundry sums of money to him. Counsel submitted that the Claimant is not entitled to any monetary claims against the defendant as he has failed woefully to prove how the financial claims arose. In respect of relief J, by virtue of the PPPG, payment of profit share is not a right but strictly a privilege payable only to those on the bank’s payroll at time of declaration, if declared by the defendant and only after defendants audited accounts for a financial year has been approved by the Central bank of Nigeria. The defendant on its part has shown that it calculated and paid the claimant his End of Year Service by virtue of the letter dated 20^th March, 2018. Reliefs n, and o, are interests on the sums being demanded and the cost of the action. The defendant has been able to show that no wrong was done to the claimant. There is no evidence before this honourable court to warrant grant of the monetary reliefs that will attract interest. It is trite that where a party fails to establish the substance of his claims, the claims fail and the case should be dismissed. Counsel relied on S.131 Evidence Act; IYERE V. BFFM LIMITED (2001) FWLR (Pt 37) 1166.

It is the submission of counsel that since the claimant has not in any way shown that his employment was determined in any other way other than termination, counsel urged the court to dismiss all his claims in their entirety.

COUNTERCLAIM

Counsel submitted that the defendant made a counter claim that the claimant is indebted to it to the tune of N2, 217, 369.07 arising out of an upfront payment of furniture, housing and transport allowances. The claimant in his pleadings under paragraphs 15, 16 and 19 agreed that he is entitled to housing and transport allowances and further agreed under cross examination that these allowances are paid in advance. The defendant had paid these allowances upfront and being an unearned income, the claimant is expected to pay it back to the defendant when his appointment was terminated. There was no evidence that these upfront payments were refunded.

Flowing from the above, the defendant wrote the claimant a letter dated 20^th March, 2018 wherein it informed the claimant of its indebtedness to it in the said sum of N2, 217, 369.07. The claimant did not refute the letter or denied not being indebted to the defendant. The claimant made general denial in his pleading which should be considered an afterthought and therefore the claimant is deemed to have admitted the indebtedness. The defendant has shown in this address that Version 3.1 regulated the appointment of the claimant before it was terminated. By the PPPG any staff who disengages from the defendant bank and is indebted to the defendant is required to pay back the debt within 30 days after which such debt is converted to a commercial loan and charge interest accordingly.

CLAIMANT’S FINAL WRITTEN ADDRESS

Counsel for the claimant filed his final written address on 12^th September, 2024 where he submitted the following issues for determination to wit;

1. Whether the Claimant has proved his case against the Defendant having regard to the totality of evidence led at trial to be entitled to all the reliefs claimed in this suit.

2. Whether the Defendant has proved it’s counter claim against the Claimant to be entitled to the reliefs sought in the Counterclaim.

Learned counsel submitted on issue one and relied on Section 131(1) of the Evidence Act. Counsel also referred to the case of OKOYE & ORS V. NWANKWO (2014) LPELR- 23182 (SC) where it was held:

“The burden of proof in civil cases has two distinct meanings, viz: (a) The first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case; (b) The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable or static the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-versa as the case progresses.”

Counsel submitted that the law is also trite that it is from the contract of employment that rights and obligations of the parties can be deduced in ascribing duties before a breach can be identified and placed properly. Counsel referred to the case of ONYEUKWU V. FIRST BANK OF NIGERIA PLC (2015) LPELR-24672 (CA), it was held:

“It is from the contract of employment that rights and obligations can be dedued in ascribing duties before breach can be identified and placed properly. Parties to an employment contract just like any other contracts are bound by the terms of the contract, see AMODU v. AMODE (1990) 5 NWLR (Pt. 150) 356 where the Supreme Court held as follows: “It is trite law that parties to a contract are bound by its terms.

Counsel submitted that the law is trite that contract of employment must be tendered in evidence. He referred to the case of OBANYE V. UBN PLC (2015) LPELR- 25891 (CA), where it was held that;

“In a contract of employment, the general principle is that the letter of appointment must be tendered as it is the document that the court will look at in considering the rights and obligations of the parties.”

Counsel submitted that the Claimant stated that paragraph 7.20.2(a) & (b) of the Defendant’s Personnel Policy and Procedure Guide (PPPG) makes voluntary retirement age in the service of the Defendant to be minimum of 15 years unbroken service of compulsory retirement at the attainment of 55 years of age. Furthermore, paragraph 7.20.3(ii) of the Defendant’s Personnel Policy and Procedure Guide (PPPG) provides for cash benefits of Nine months Basic Salary, Transport and Housing for each completed year of service for AM (Assistant Manager to SM (Senior Manager), the range which the Claimant belongs for the retirement benefits. The Claimant testified that the said retirement policy of the Defendant was in effect until 23^rd December 2016 when the Defendant through it’s Chief Human Resources Officer, Charles Nwachukwu by an email dated 23^rd December 2016, abrogated the said retirement policy. The said email reads:

“HR is hereby authorized to commence the payment of earned gratuity to staff who have spent 5 years as at December 31, 2015 and retirement benefits to staff of the Bank who have spent 15 years as at December 15, 2016 in line with the extant policy...”

Learned counsel submitted that the Claimant testified that in line with the Defendant’s policy, as contained in Personnel Policy and Procedure Guide (PPPG) Exhibit CW1H, on staff retirement or disengagement, it is expected that the Defendant will calculate and pay him his entitlement in accordance with Exhibit CW1H, having not been paid when the policy was abolished in 2016 via email dated 2 December 2016 marked Exhibit CWIK2. The Claimant testified that to his greatest shock, he was not paid his retirement benefits despite the fact that he had served the Defendant for a period of 14years and 11 months, approximately 15 years as at the time the Defendant’s Personnel Policy and Procedure Guide (PPPG) Exhibit CW1H was abrogated and that before December 2016 when the retirement benefit was abolished by the Defendant, the Claimant’s monthly Basic Salary was N45,517.00 (Forty-Five Thousand, Five Hundred and Seventeen Naira), Transport monthly allowance was N45,732. 17 (Forty-Five Thousand, Seven Hundred and Thirty-Two Naira, Seventeen Kobo) and Housing monthly allowance was 170,647.33 (One Hundred and Seventy Thousand, Six Hundred and Forty-Seven Naira, Thirty-Three Kobo) and that the Claimant was still on the same salary scale when his employment was terminated by the Defendant. The Claimant stated that his retirement benefits as provided by the Defendant’s retirement policy Exhibit CW1H when it was abrogated which the Defendant did not pay him is:

1. 9(Nine) months Basic Salary @ N45,517.00 per month for 15 (Fifteen) years of service.

2. 9(Nine) months Transport Allowance @ N45,732. 17 per month for 15 (Fifteen) years of service.

3. 9(Nine) months Housing Allowance @ N170,647.33 per month for 15 (Fifteen) years of service.

Basic Salary – N45,517.00 x 9months x 15 years = N6,144,795 Transport – 45,732.17 x 9 months x 15 years = N6,173,842.95 Housing-N170,647.33 X 9months x 15years = N23,037389.55

TOTAL – N35,356,025.5

Counsel submitted that when Exhibit CWIH was abrogated, the Defendant adopted a very discriminatory approach by paying some of the Claimant’s colleagues a prorated retirement benefits according to the number of years they spent before their retirement and now leaving the Claimant in despondency. The Claimant listed an example of staff whose benefits were prorated and paid accordingly which ranged from 10-14 years of service. The list is as follows:

a. Godwin Ibeabuchi (Branch Leader) Staff No. P1352

b. Steve Nwakeze Staff No. P0658

c. Abimbola Ogunjobi Staff No. P0748

d. Emeka Omuruzuo Staff No. PO773

e. Obinna Micheal Staff No. P1458

f. Anderson Chimaobi Staff No. P0654

Counsel submitted that Steve Nwakeze with Staff No. PO658 was the Claimant’s junior colleague which the Defendant paid his retirement benefits despite the fact that he did not work up to 15 years as stipulated by Exhibit CWIH and tendered in evidence the statement of account of account number 5050121263 of Steve Nwakeze with Staff No. PO658 Exhibit CW1L1 showing the payment of the sum of N30,332,614.73 (Thirty Million, Three Hundred and Thirty-Two Thousand, Six Hundred and Fourteen Naira, Seventy-Three Kobo) made on 17^th August 2016 by the Defendant being his END OF SERVICE ENTITLEMENT. This evidence was corroborated by the evidence of the Defendant’s witness under cross examination. The Claimant stated that the Defendant did not pay him neither his full retirement benefits nor prorated retirement benefits according to the number of years he worked as the Defendant did for his colleagues. That the Claimant worked for 14 years, 10 months and 15 days, approximately 14 years and 11 months for the Defendant.

Counsel submitted that the Claimant testified that the Defendant has institutionalized discrimination as its policy by paying some of the staff who had spent 15 years and above and still retain them in their services which is an aberration in labour practice to retire a staff, pay him/her retirement benefits and at the same time retain the staff to continue in the service of the Defendant, earn a monthly salary and pay the same retired staff 6 months’ salary in lieu of a notice with those who have been denied their retirement benefits while the Claimant was abandoned to suffer in penury. Counsel submitted that some of the Claimant’s colleagues who spent 15 years in the service of the Defendant were paid their full retirement benefits by the Defendant and also retired in the year 2016. The list of some of the Claimant’s colleagues who were paid their full retirement benefits and retired in the year 2016 includes:

a. Feyikemi Oguniyi – PO481

b. Fidelis lbhafidon – P0480

c. Segun Oyegoke – P1048

d. Segun Majekodunmi – P4595

e. Adesoji Omosebi – P1010

Counsel submitted that the Claimant pleaded in paragraph 22 of the amended statement of facts and led evidence in paragraph 23 of the statement on oath that he was surprised that his own retirement benefits were not paid as at the date the policy was abrogated nor was it paid when his appointment was terminated while the Defendant paid some employees who are still working with the Defendant and are earning salaries till date and this clearly depicts the confusion and the discrimination in the management of the Defendant. The Claimant stated further that the Defendant’s act of not paying his retirement benefit is an act calculated to unfairly discriminate against the Claimant, which is an unfair labour practice, which the Defendant neither controverted nor denied in its statement of defence and evidence in the Court.

Learned counsel submitted that the law is trite that facts not denied in the pleadings whether raised in the statement of claim or statement of defence are taken as admitted. He referred to the case of OLALE V. EKWELENDU (1989) LPELR -2560 (SC) Per Oputa JSC (PP 55 – 56 Paras F-E, it was held by the Supreme Court that;

“Another point I will like to comment on rather briefly is the onus of proof on the plaintiff/respondent. Undoubtedly, there is an onus on the plaintiff to prove his case. The onus of proof is nothing more than an onus to prove any issue arising from the pleadings. It is only when and where issues of facts arise from the pleadings of the parties that one can then determine what those issues are and on whom the onus of proof lies. A plaintiff can discharge the onus of proof in his pleadings. See Onyekaonwu & Ors. V. Ekwubiri & Ors. (1966) 1 All N.L.R. 32 at p. 35. In this case, the plaintiff/respondent’s case, based on the Abandoned Property Edict was not traversed. There was no issue of fact on the case presented by the plaintiff in the statement of claim. No one sets out to prove that which had not been denied. The trial court should have realized and adverted to that. The plaintiff’s case as pleaded standing uncontroverted, thus needed no further proof. It was redundant that the plaintiff was made to prove what has not been denied.…

Furthermore, counsel referred to the case of OGUNLEYE V. ONI (1990) LPELR (SC) (PP 24-24 D-F) Per Belgore JSC , it was held by the Supreme Court that;

“…all matters not denied in the pleadings whether raised in the statement of claim or statement of defence are taken as admitted. Facts emerging from any pleading, raising new matters and throwing new light on the adversary’s averment must be denied. If not, they are taken as admitted because there is no element of surprise or embarrassment.”

Counsel further submitted that the Defendant’s witness under cross examination admitted that Steve Nwakaeze who did not serve the Defendant up to 15 years was paid his retirement benefits and this evidence corroborated the evidence of the Claimant in paragraphs 18, 19, and 20 of the Claimant’s further witness statement on oath and the statement of account of Steve Nwakaeze marked Exhibit CW1K.

Counsel urged the Honourable Court that based on the uncontroverted evidence of the Claimant and evidence elicited under cross examination from the Defendant’s witness that Steve Nwakaeze who did not work up to 15 years was paid his retirement benefit by the Defendant but the Defendant refused to pay a retirement benefit to the Claimant, to hold that the action of the Defendant is discriminatory and that the Claimant is entitled to his full or prorated retirement benefit. Furthermore, the Claimant pleaded in paragraph 30 of the amended statement of facts and testified in paragraph 31 of the further witness statement on oath that upon the termination of the Claimant’s employment on 18^th January 2018, the Defendant failed to pay the Claimant’s January 2018 salary, being the last month of his employment, standing at the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), as can be shown by the Claimant’s statement of account of 15^th December 2017, Exhibit CW1L2, which shows the Claimant’s previous salary before his employment was terminated was N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), which was neither denied nor controverted.

Learned counsel submitted that the Claimant pleaded in paragraph 32 of the amended statement of facts and also led evidence in paragraph 33 of the further witness statement on oath that he was not paid his annual share of profits (SOP) which he earned at the end of 2017 and which the Defendant ought to have paid in 2018 before he was forced to relinquish the share via Exhibits CW1J 1&2, which was neither denied nor controverted. The Claimant pleaded in paragraph 35 of the amended statement of facts and testified in paragraph 36 of the further witness statement on oath that the Defendant had via a letter dated 20^th March 2018, demanded from the Claimant the sum of N2,217,369.07 (Two Million, Two Hundred and Seventeen Thousand, Three Hundred and Sixty-Nine Naira) being the alleged unearned allowances given to the Claimant by the Defendant. The Defendant expected the Claimant to fully repay the amount within 90 days following which interest will be charged on the outstanding amount at the Bank’s prime lending rate from July 2018, which was neither denied nor controverted. The Claimant pleaded in paragraphs 36 and 37 of the amended statement of facts and testified in paragraphs 37 and 38 of the further witness statement on oath that was forced by the Defendant via letters dated 1^st June 2018 and 29^th August 2019 Exhibits CW1J 1&2 to sell his units of Fidelity Bank Plc shares the Claimant has with the Defendant, which was neither denied nor controverted.

It is the submission of counsel that the Claimant unwillingly yielded to the Defendant’s demand of relinquishing and selling off his shares to satisfy the sum of N2,217,369.07 (Two Million, Two Hundred and Seventeen Thousand, Three Hundred and Sixty-Nine Naira) being the alleged unearned allowances given to the Claimant by the Defendant, but surprisingly, the Defendant is still demanding the sum of N2,217,369.07 (Two Million, Two Hundred and Seventeen Thousand, Three Hundred and Sixty-Nine Naira). The Defendant testified that the Defendant is currently charging the Claimant interest at the commercial rate of 32 per cent on the sum of N2,217,369.07 (Two Million, Two Hundred and Seventeen Thousand, Three Hundred and Sixty-Nine Naira) from July 2018 till date, despite the fact that the alleged outstanding debt has been paid via the shares the Claimant was forced to relinquish to the Defendant. It is the Claimant’s case that the act of the Defendant is discriminatory, unfair, unjust and contrary to equity, good conscience, national and international labour practices and standards and has resulted in psychological trauma, shock, mental agony, psychological depression, embarrassment, inconveniences and financial impecuniosity to the Claimant.

It is the contention of counsel that the Defendant neither traversed nor denied the pleadings of the Claimant in paragraphs 30 to 40 of the Claimant’s amended statement of facts and the law is trite that uncontroverted pleadings is deemed admitted and needs no further proof. Furthermore, despite the fact that the Defendant did not deny that the Claimant’s salary was N146,781.99, the Claimant tendered his statement of account marked Exhibit CW1L2 and the entry on 15 December 2017 showed that the Claimant’s salary before the termination of his employment was N146,781.99 and there is no evidence led by the Defendant that it paid the Claimant both his January 2018 salary and one month salary in lieu of notice. The Claimant has discharged the burden of proof placed on him by the law by the oral and documentary evidence led at the trial and the evidence is unchallenged and uncontroverted and humbly urge the court to so hold.

Learned counsel submitted that on the Claimant’s reliefs A, B, C, F, and G, the Claimant proved at trial that he was employed by the defendant until his employment was terminated. The Claimant also stated that paragraph 7.20.2 (a) and (b) of the Defendant’s PPPG makes voluntary retirement age in the service of the Defendant to be minimum of 15years unbroken service or compulsory retirement at the attainment of 55years of age. Paragraph 7.20.3(ii) provides for cash benefits of Nine months Basic Salary, Transport and Housing for each completed year of service for AM (Assistant Manager to SM (Senior Manager), the range which the Claimant belongs for the retirement benefits. The Claimant testified that the said retirement policy of the Defendant was in effect until 23^rd December 2016 when the Defendant through its Chief Human Resources Officer, Charles Nwachukwu by an email dated 23^rd December 2016 (Exhibit CW1K2) abrogated the said retirement policy. The Claimant testified that in line with the Defendant’s policy, as contained in Personnel Policy and Procedure Guide (PPPG) Exhibit CW1H on staff retirement or disengagement, it is expected that the Defendant will calculate and pay him his entitlement in accordance with Exhibit CW1H having not been paid when the policy was abolished in 2016.

Counsel submitted that it is trite that unchallenged credible evidence in support of special damages can be accepted as proof of the claim. He relied in the case of Araba v. Elegba (1986) 1 N.W.L.R. (pt. 16) 333. Therefore, once credible oral or documentary evidence are adduced on items classified as special damages in line with the pleadings and such evidence is not challenged, the evidence should be deemed to have been duly proved.

Furthermore, in the judgment of the National Industrial Court Lagos Division in suit no NICN/LA/588/2017 between Mrs Ekeoma Ajah vs Fidelity Bank Plc, delivered by His Lordship Hon. Justice N.C.S. Ogbuanya, the full judgment was reported at the National Industrial Court website https://nicnadr.gov.ng/judgement/judgement.php?id=3498 which is similar to the facts of this case. In the case under reference, Mrs Ekeoma Ajah worked for 14 years and 11 months before the new policy came into force via an email dated 23^rd December 2016 that abrogated the PPPG version 2.8 which is the same document the Claimant tendered in the suit and marked Exhibit CW1H. The issue that arose for determination in that suit was whether Mrs Ekeoma Ajah having worked for 14 years and 11 months before the new policy PPPG version 3.1 came into force via an email dated 23^rd December 2016, would take benefit of the Fidelity Bank Plc retirement benefits by approximation, the benefit which was preserved for those who had attained the 15 years long service before it was abrogated? In resolving the issue, His Lordship Hon. Justice N.C.S. Ogbuanya, while applying the principle of arithmetic approximation, held that Mrs Ekeoma Ajah who served over 14 years and 11 months to attain 15 years from January 21, 2002 to 23^rd December 2016 when the new policy took effect was deemed to have attained 15 years.

Counsel urged the Honourable Court that based on the oral and documentary evidence led by the Claimant at the trial, the authorities cited, and the judgment in Suit No NICN/LA/588/2017 between Mrs Ekeoma Ajah vs Fidelity Bank Plc, delivered by His Lordship Hon. Justice N.C.S. Ogbuanya, to hold that the Claimant is entitled to his End of Service/retirement benefits having attained approximately 15 years of unbroken service with the Defendant in line with paragraph 7.20.2 of the Defendant’s Personnel Polices and Procedure Guide (PPPG) on staff retirement before it was abrogated via an email dated 23^rd December 2016 and that the Defendant ought to have paid the Claimant his retirement benefits in 2016 as directed by the email of 23^rd December 2016 marked Exhibit CW1K2 and graciously grant the Claimant’s reliefs A and F.

Counsel submitted that assuming without conceding that the Claimant did not attain approximately 15 years of unbroken service as at 23^rd December 2016, the Claimant is in alternative entitled to prorated End of Service/retirement benefits having worked for 14 (Fourteen) years and 11 months of unbroken service with the Defendant before the Defendant’s Personnel Polices and Procedure Guide (PPPG) was abrogated via an email dated 23^rd December 2016.

It is the submission of counsel that the Defendant’s witness admitted under cross examination that the Defendant paid Steve Nwakaeze his retirement benefits despite the fact that he did not work up to 15 years. The law is trite that evidence elicited under cross examination which supports the case of the Claimant if pleaded can be used in proof of declaratory relief and that it is an exception to the rule that the Claimant succeeds on the strength of his case and not on the weakness of the case of the Defendant. Counsel referred to the following cases; ISIJOLA VS A.G. ONDO STATE & ANOR (2019) LPELR -48372 (CA). SUSANNIGER & CO. LTD V. MINISTER, FCT ADMINISTRATION & ORS (2020) LPELR -51190 (CA). ODI V. IYALA (2004) 8 NWLR (PT. 875) 283.

Counsel further submitted that based on the above cited authorities, the evidence of the Defendant’s witness under cross examination, the pleading that was not traversed, and the uncontroverted and unchallenged evidence of the Claimant that the Defendant discriminated against him by paying his junior colleagues who did not work up to 15 years their retirement benefits in 2016 and also paid retirement benefits to some employees who are still working with the Defendant and are earning salaries till date without paying the Claimant his retirement benefit, makes the Claimant entitled to reliefs B, C and G.

Learned counsel submitted that on the Claimant’s reliefs D,E,H,I, and J, the Claimant pleaded in paragraph 30 of his amended statement of facts and testified in paragraph 31 of the further witness statement on oath that upon the termination of the Claimant’s employment on 18^th January 2018, the Defendant failed to pay the Claimant’s January 2018 salary, being the last month of his employment and standing at the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), as can be shown by the Claimant’s statement of account of 15^th December 2017 Exhibit CW1L2, which shows the Claimant’s previous salary before his employment was terminated was N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), which was neither denied nor controverted by the Defendant. It was also not traversed by the Defendant in the statement of defence. The Claimant also pleaded in paragraph 31 of the amended statement of facts and testified in paragraph 32 of the further witness statement on oath that the Defendant terminated the Claimant’s employment without giving him one-month notice and also did not pay him one month salary in lieu of a notice being the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo, as contained in the contract of employment Exhibit CW1A, which was neither denied nor controverted by the Defendant. It was also not traversed by the Defendant in the statement of defence. The Claimant pleaded in paragraph 32 of the amended statement of facts and also led evidence in paragraph 33 of the further witness statement on oath that he was not paid his annual share of profits (SOP) which he earned at the end of 2017 and which the Defendant ought to have paid in 2018 before he was forced to relinquish the share by the Defendant via Exhibits CW1J 1&2, which was neither denied nor controverted by the Defendant. It was also not traversed by the Defendant in the statement of defence.

Counsel submitted that the law is trite that failure to admit or deny an averment in a paragraph of a statement of claim amounts to an admission and it needs no further proof. He referred to YUSUF V. OYETUNDE & ORS (1998) LPELR-3536(SC), AGUOCHA V. AGUOCHA (1986) LPELR-255 (SC). Also, the Defendant did not cross examine the Claimant of the evidence led in support of reliefs D, F, H, and I and this amount to an admission. It is the submission of counsel that the Claimant having led unchallenged and uncontroverted evidence that the Defendant did not pay his retirement benefits, January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP) makes the Claimant to be entitled to his reliefs. Also, the Defendant having not traversed in its pleading or controverted the evidence of the Claimant, urged the Court to hold that these acts of the Defendant amount to admission of the breach of contract and unfair labour practice and we urge the court to graciously grant reliefs D, E, H, I and J.

Counsel submitted that on the Claimant’s reliefs K and L, the Claimant pleaded in paragraphs 35 to 40 of the amended statement of facts and led evidence in paragraphs 36 to 41 of the further witness statement on oath. It is trite that where evidence tendered by a party to any proceedings was not challenged or put in issue by the other party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it. The Defendant did not also cross examine the above mentioned evidence of the Claimant and the failure to cross examine the Claimant amounts to admission. Counsel referred to MTN (NIG.) COMM. LTD. V. CORPORATE COMM. INV. LTD (2019) 9 NWLR (pt. 1678) at 461, A-B. Counsel urged the Court to act on the unchallenged and uncontroverted evidence of the Claimant and grant the Claimant’s reliefs K and L.

Learned counsel submitted on relief M that the Defendant pleaded in paragraph 42 of the amended statement of facts and led evidence in paragraph 43 of the further witness statement on oath that the actions of the Defendant is discriminatory, unfair, unjust and contrary to equity, good conscience, national and international labour practices and standards and has resulted in psychological trauma, shock, mental agony, psychological depression, embarrassment, inconveniences and financial impecuniosity to the Claimant and the evidence is neither controverted nor challenged. The Defendant did not traverse the said pleading which amounts to admitted fact which does not require any further proof.

Counsel referred to the case of SAHARA ENERGY RESOURCES LTD V. OYEBOLA (2020) LPELR -51806 (CA), it was held by the Court of Appeal that the National Industrial Court has the discretion on the quantum of general damages to award based on the international best practices and the Court has the power to award substantial damages for unfair labour practices based on the international best practices. Counsel urged the Court that based on the unchallenged and uncontroverted evidence of the Claimant and the authorities cited to award substantial damages against the Defendant and grant the Claimant’s relief M.

Counsel submitted on relief N, that the law is trite that where a party proves its case and judgment sum is awarded in his favour, the Court can award interest on the judgment sum if prayed for. He referred to JALLCO LTD. V OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (Part 391) 534. Counsel urged the Court to award in favour of the Claimant interest on the judgment sum at the rate of 21% (per cent) per annum from the date of judgment till the full payment of the judgment sum.

Counsel submitted that in relief O, the law is trite that cost follows events. The Defendant’s failure to pay the Claimant his remunerations forced the Claimant to institute this suit and incurred so much cost in filing and prosecution of the suit. Also, the Claimant procured the services of legal practitioners and paid them heavily for purpose of filing and prosecuting this suit. All these costs would have been avoided if the Defendant had paid the Claimant his entitlements. The law is trite that a successful party in entitled to cost whether it is pleaded and/or proved or not. He relied in the case of MEKWUNYE V. EMIRATES AIRLINES (2019) LPELR -46553 (SC) (PP. 86-88) PARAS. E-D. Counsel urged the Court to hold that the Claimant has incurred cost in prosecuting this suit and therefore entitled to the award of cost and grant Claimant’s relief O.

Learned counsel submitted on issue two that the Defendant in discharge the burden of proof imposed on it by the law adopted its witness statement on oath deposed to on 1^st July 2024 and the Defendant testified in paragraph 5(h) of the statement on oath that by the end of the Claimant’s service, that the Claimant was indebted to the Defendant from the loans and other financial advantages earlier extended to the Claimant by the Defendant. The Defendant’s witness was asked under cross examination if he has any document before the Court to show that a loan was advanced to the Claimant by the Defendant and the witness replied no, that he did not have any document. The Defendant’s also testified in paragraphs 8 and 9 of the witness statement on oath that the Claimant was granted upfront allowances which included furniture, housing, and transport allowances and that the Claimant is owing the Defendant the sum of N2,217,369.07. Under cross examination, the Defendant’s witness was further asked if it was the allowances given to the Claimant that the Defendant converted to loan and he replied no. Counsel further submitted that the evidence of the Defendant in support of its counter-claim is not credible and also contradictory. The Defendant alleged that upfront allowances which included furniture, housing, and transport allowances were given to the Claimant and based on that the Claimant is owing the Defendant the sum of N2,217,369.07, but did not tender any document in support of the counter claim. The law is trite that the Defendant’s counter claim is a special damage and it must be specifically pleaded with particulars and strictly proved. That is to say, anyone claiming special damages must show by credible evidence that he is entitled to the award of special damages with the requisite particulars. Counsel referred to AHMED & ORS. CBN (2012) LPELR -9341 (SC).

Counsel submitted the case of ONYIORAH V. ONYIORAH & ANOR (2019) LPELR -49096 (SC), it was held by the Supreme Court that;

“Special damages must be specifically 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.”

Learned counsel submitted that the Defendant did not plead the necessary particulars required by law to enable it to be granted the special damages of alleged upfront allowances of furniture, housing, and transport allowances. The Defendant’s evidence in paragraph 9 of the Defendant’s witness statement on oath cannot grant the relief (a) in the counter claim because it lacks the requisite particulars required for the grant of the special damages. The question is how much is for the furniture allowance? How much is for the housing allowance? How much is for the transport allowance? How did the Defendant arrive at the total sum of N2,217,369.07 the Defendant is claiming in the counter claim? Counsel submitted that the Defendant’s pleadings and evidence led at the trial lack the requisite particulars and facts needed to answer the question.

It is the submission of counsel that the Defendant having failed to plead the particulars to show how it arrived at the total sum of N2,217,369.07 which the Defendant claims makes the counter claim liable to be dismissed. Counsel relied in the case of TAYLOR & ANOR v. OGHENEOVO (2011) LPELR-8955 (CA).

Furthermore, counsel submitted that the evidence of the Defendant’s witness in support of the counter claim is contradictory. The Defendant’s witness under cross examination said that it was not allowance given to the Claimant that the Defendant converted to the outstanding loan the Defendant is counter claiming and this evidence contradicted the evidence of the Defendant’s witness in paragraphs 8 and 9 of the witness statement on oath. Also, the Defendant in one breath stated that a loan was given to the Defendant and in another breath stated that the Claimant was granted upfront allowances which included furniture, housing, and transport allowances that amounted to the sum of N2,217,369.07 the Claimant counter claimed. Which one will the Court believe? That the sum of N2,217,369.07 is a loan or upfront allowance? The law is trite that no witness who gave two contradictory pieces of evidence is worthy of belief. Counsel submitted the case of EZEMBA v IBENEME (2004) 4 NWLR (Part 894) 617 at 654, E, the Supreme Court held that:

“No witness who has given on oath to (sic) material inconsistent evidence is entitled to the honour of credibility. Such witness does not deserve to be treated as a truthful witness.”

Counsel submitted that the law is trite that a contradiction occurs when two statements of a witness are opposite to each other to the extent that both cannot be true. He referred to GARBA V. STATE (2022) LPELR -57677 (SC).

It is the submission of counsel that the evidence of the Defendant’s witness under cross examination that it was not allowance given to the Claimant that was converted to the outstanding loan it is claiming, contradicted the evidence of the Defendant in paragraphs 8 and 9 of the witness statement on oath wherein he stated that the Claimant was granted upfront allowances which included furniture, housing, and transport allowances that amounted to the sum of N2,217,369.07 because both cannot be true. Also the evidence of the Defendant’s witness that a loan was advanced to the Claimant by the Defendant is contradictory to the evidence that the Claimant was granted upfront allowances because both cannot be true. Counsel urged the Court to discountenance the Defendant’s witness evidence for being contradictory and accordingly dismiss the relief (a) of the counter claim.

Counsel submitted that assuming without conceding that the Defendant proved that the Claimant was given upfront allowance for furniture, housing, and transport allowances that amounted to the sum of N2,217,369.07, the Defendant has failed to prove that the terms that regulated the employment of the Claimant mandated the Claimant to refund any upfront allowances given to the Claimant upon the termination of his employment. The Claimant in his evidence denied the alleged the sum of N2,217,369.07 and stated that he earned all the allowances given to him by the Defendant and this evidence was unshaken under cross examination and humbly ask the court to accordingly dismiss the relief (a) of the counter claim.

Furthermore, the relief (b) of the counter claim is interest on the sum of N2,217,369.07 at 32 percent from July 2018 until judgment and the rate of 10% till final liquidation of the loan. Counsel submitted that because the Defendant could not prove the alleged upfront allowance of furniture, housing, and transport allowances that amounted to the loan sum of N2,217,369.07, we also humbly ask the Court to dismiss the relief (b) of the counter claim. The evidence of the Defendant’s witness lacks credibility and it is unworthy of belief and humbly urge the Court to so hold. Counsel referred to EMEKA V. CHUBA-IKPEAZU & ORS (2017) LPELR-41920 (SC), it was stated that;

“On the credible nature of the 1^st respondent’s evidence, reference can be made to the case of Agbi V. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 116 per Musdapher, JSC (as he then was) wherein his lordship gave a sound description of what amounts to credible evidence which must be:- “Worthy of belief, ---- must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstances.”

Counsel submitted that assuming without conceding that the Defendant proved its counter claim, the Defendant did not prove that the parties agreed to a pre judgment interest at the rate of 32 percent as claimed in the counter claim relief (b). Furthermore, the relief is vague and ambiguous because the Defendant did not state whether the interest claimed is per month or per year. The law is trite that a relief must be clear, concise, unambiguous, and identifiable and the failure makes the relief liable to be struck out. Counsel referred to OKOYE & ORS. V. ARUEZE (2017) LPELR -42571 (CA).

Counsel urged the Honourable Court to hold that the Defendant has not proved its counter claim and accordingly dismiss the counter claim for lacking in merit with substantial cost.

Learned counsel submitted that on issues raised by the Defendant in its final written address, the Defendant in paragraphs 1.1 and 1.2 of its final address submitted inter alia although erroneously that the Claimant instituted the action through the amended complaint and the accompanying processes dated 30^th May 2022 and adopted a witness deposition dated 30^th May 2022. Counsel contended that the Defendant’s submission is erroneous. When the matter came up for trial on 20^th May 2024, the Claimant’s counsel applied to withdraw the amended general form of complaint and the accompanying processes dated 30^th May 2022 and applied to rely on the amended general form of complaint and the accompanying processes dated 17^th November 2023 which the Defendant’s counsel did not oppose and the application was granted as prayed. The suit was tried based on the amended general form of complaint and the accompanying processes dated 17^th November 2023. The Claimant also adopted his witness statement on oath deposed to on 17^th November 2023 and counsel urged the Honourable Court to discountenance the Defendant’s submissions.

Counsel submitted that the Defendant in paragraph 1.2 of its final written address further submitted that the Claimant did not file any reply to the Defendant’s statement of defence. In response, counsel submitted that the submission of the Defendant is erroneous. The Claimant’s counsel moved on 20^th May 2024 a motion on notice dated 3^rd November 2020 for extension of time to enable the Claimant file his reply to the statement of defence and defence to the counterclaim and the deeming order. The Defendant’s counsel having not opposed the application, it was granted by the Court as prayed. The Claimant at the trial on 20^th May 2024 also adopted his further witness statement on oath in answer to the counter claim deposed to on 3^rd November 2020.

Counsel submitted that the law is trite that the record of the court is binding on all the parties and the Honourable Court. He referred to SAKAMORI CONSTRUCTION (NIG) LTD V. LAGOS STATE WATER CORPORATION (2021) LPELR -56606 (SC). Counsel urged the Honourable Court that based on the record of proceedings of 20^th May 2024 to discountenance the Defendant’s submissions in paragraphs 1.1 and 1.2 of the Defendant’s final written address.

Counsel submitted that the Defendant in paragraphs 4.1 to 4.3 of its final written address submitted amongst other things that there was no retirement benefit policy and gratuity as at March 2018 when the Claimant left the employment of the Defendant and that the retirement benefit has been abolished at the time the Claimant left the employment of the Defendant by the new PPPG version 3.1 (Exhibit D3) and that the Claimant was communicated about the change and that the new PPPG version 3.1 did not make any provision for the retirement benefit the Claimant is claiming before the Honourable Court. Counsel contended that the submission of the Defendant is misconceived. The Claimant’s amended general form of complaint and the accompanying processes form part of the record of the court and the law is trite that the record of the court is binding on all the parties and the Honourable Court. Counsel referred to SAKAMORI CONSTRUCTION (NIG) LTD V. LAGOS STATE WATER CORPORATION (supra).

Learned counsel submitted that the Claimant’s reliefs for the payment of the retirement benefit under PPPG version 2.8 stopped in December 2016 when the retirement benefit was abolished by version 3.1 of the PPPG (Exhibit D3). The Claimant did not claim for the retirement benefits up to January 2018 when his employment was terminated. The unchallenged evidence of the Claimant is that he is entitled to the retirement benefit by approximation in 2016 when the policy was abolished or a prorated retirement benefits as the Defendant did for his junior colleagues. This evidence is unchallenged and uncontroverted and the law is trite that the court must act on the unchallenged and uncontroverted evidence. See YESUFU & ANOR V. KUPPER INT. N.V (supra). Counsel urged the Court to discountenance the Defendant’s submissions.

It is the submission of counsel that the Defendant in paragraphs 5.0, 5.1, 5.2, 5.3, 5.4, 5.6, and 5.8 of its final written address submitted that the Claimant’s employment was terminated and that the Claimant did not retire therefore, the Claimant is not entitled to the retirement benefits even if PPPG version 2.8 (Exhibit CH1H) is applicable in the case because he did not retire and did not work up to 15 years. Counsel contended that the submission of the Defendant is erroneous.

The law is trite that a document speaks for its self and the email of 23^rd December 2016 speaks for its self. The email of 23^rd December 2016 (Exhibit CW1K2) ordered that the retirement benefits should be paid to those eligible and counsel submitted that the employee must not necessarily retire before he will be entitled to the payment of the retirement benefits in 2016. The Claimant pleaded in paragraph 14 of the amended statement of facts that by approximation he was entitled to payment of retirement benefits in 2016 when it was abolished because he had worked for 14 years and 11 months approximately 15 years. The Claimant also pleaded in paragraph 17 of the amended statement of facts that the Defendant paid his juniors that had work from 10-14 years their retirements without paying him.

Counsel further submitted that the Claimant further pleaded in paragraph 21 of the amended statement of facts that the Defendant paid those that had work from up to 15 their retirement benefits. The Claimant further pleaded in paragraph 22 of the amended statement of facts that the Defendant paid some employees their retirement benefits in 2016 and still retained them in its employment. Counsel submitted that the above mentioned paragraphs were not traversed by the Defendant in the statement of defence and the law is trite that pleading not traversed is deemed admitted and needs no further proof. The Defendant having not traversed the above mentioned pleadings has admitted that it discriminated against the Claimant by paying some employees their retirement benefits and still retain them in the employment without paying the Claimant and that the Claimant must not have retired in 2016 to be entitled to the retirement benefit in 2016 when the policy was abolished since some of the employees paid did not retire and the Defendant did not plead that it offered the Claimant an opportunity to retire in other to be paid and he refused.

Counsel submitted that the Defendant further in paragraph 5.4 of its final written address argued amongst other things that the Claimant did not retire or offered to retire in 2016 when the retirement benefit was applicable and he was denied by the Defendant. In reply that the submission of the Defendant is misconceived. The law is trite that parties are bound by their pleadings. Counsel referred to RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 at 365, Paras. D-E. There is no place in the Defendant’s statement of defence where the Defendant pleaded that the Claimant was offered to retire to be entitled to the retirement benefit or prorated retirement benefits in 2016 but he rejected it. The Defendant having not offered the Claimant an option to retire to get paid his retirement in 2016 is estopped from saying that in the final address. The law is trite that an address of the counsel cannot take the place of the evidence not pleaded and proved. Counsel referred to OGUNSANYA V. STATE (2011) LPELR-2349 (SC). Counsel urged the Court to discountenance the Defendant’s submission.

Counsel submitted that the Defendant further in paragraph 5.4 of its final written address argued amongst other things that the Claimant is estopped from claiming the retirement benefit that has been abolished because the Claimant did not oppose the review and did not avail himself of the opportunity offered before the implementation of the stoppage and retire from the Defendant’s employment, rather the Claimant continued with his employment. In response that the submission of the Defendant is erroneous. The law is trite that parties are bound by the pleadings. The Defendant did not plead that the Claimant did not avail himself of the opportunity offered before the implementation of the stoppage and retire from the Defendant’s employment, rather the Claimant continued with his employment. The final address of the Defendant’s counsel on the facts not pleaded shall not take the place of evidence not proved.

Counsel further submitted that estoppel is not applicable in the circumstances of the case because no opportunity was offered to the Claimant before the implementation of the stoppage of the retirement benefit and he refused to accept it and urged the Court to discountenance the Defendant’s submissions and all the cases cited by the Defendant are not applicable. The Defendant in paragraph 5.7 of its final written address submitted that the financial reports tendered by the Claimant relates to 2014, 2015, and 2016 captured the funds to take care of the retirement benefits of persons who took advantage of the window offered and voluntarily left the employment of the Defendant within the time allowed. In response that the submission of the Defendant is erroneous.

The law is trite that parties are bound by the pleadings. The Defendant did not plead that the financial reports tendered by the Claimant relates to 2014, 2015, and 2016 captured the funds to take care of the retirement benefits of persons who took advantage of the window offered and voluntarily left the employment of the Defendant within the time allowed. The final address of the Defendant’s counsel on the facts not pleaded shall not take the place of evidence.

Counsel contended that the Defendant in paragraphs 7.1 and 6. 1 of its final written submitted that the Claimant’s reliefs a, b, c, d, and e are declaratory reliefs and that the Claimant has not shown that he entitled to the declaratory reliefs. In response, counsel submitted that the Claimant proved his declaratory reliefs and all the cases cited by the Defendant are not applicable. The Defendant in paragraph 6.2 of its final written address submitted that the Claimant is not entitled to the grant of reliefs f, g, h, I, j, k, and l because the Claimant failed to prove how the sums claimed arose. In response, counsel contended that the submission of the Defendant is misconceived with all humility. The Claimant proved how the sums claimed arose and further adopt counsel’s submissions.

The Defendant further submitted in paragraph 6.2 of its final address that the Court should not grant relief J because by virtue of PPPG, the payment of share profit is not a right but strictly a privilege payable to only those on the Defendant’s payroll at the time of the declaration. In response, counsel submitted that the Defendant did not plead that by virtue of PPPG, the payment of share profit is not right but strictly a privilege payable to only those on the Defendant’s payroll at the time of the declaration. The law is trite that parties are bound by the pleadings. The final address of the Defendant’s counsel on the facts shall not take the place of evidence not pleaded and proved. The Claimant in paragraph 6.3 of its final written address submitted that the Claimant is not entitled to reliefs (n) and (o). In response, counsel submitted that the Defendant proved that he is entitled to reliefs (n) and (o). The Defendant in paragraphs 7.1 and 7.2 of its final address submitted that the Claimant is indebted to the Defendant to the sum of N2,217,369.07 arising from the upfront payment of furniture, housing, and transport allowances. In response, counsel submitted that the Defendant did not prove its entitlement of the counter claim. The Defendant further submitted in paragraph 7.3 of its final written address that PPPG version 3.1 (Exhibit D3) regulated the appointment of the Claimant and by the PPPG any staff who is disengaged by the Defendant and he is indebted to the Defendant is required to pay back the debt within 30 days after which the debt would be converted to a commercial loan and charge interest accordingly. It is the contention of that the submission of the Defendant is erroneous.

The law is trite that parties are bound by the pleadings. There is nowhere in the statement of defence where the Defendant pleaded that by Exhibit D3 any staff who is disengaged by the Defendant and he is indebted to the Defendant is required to pay back the debt within 30 days after which the debt would be converted to a commercial loan and charge interest accordingly. The final address of the Defendant’s counsel on this fact not pleaded shall not take the place of evidence.

COURT’S DECISION

Upon careful perusal of the pleadings filed by the parties, the evidence adduced and the submissions of their respective counsel, I am of the firm view that this case will ordinarily be determined on;

Whether the Claimant has proved his case and entitled to the reliefs sought and whether the Defendant is entitled to the reliefs sought in the Counterclaim.

The crux of the claimant’s case is that he was employed by the Defendant in February, 2002 and continued to be in the employment of the Defendant until January, 2018 when the Defendant without any reason breached the contract by terminating the contract of employment. The Claimant worked for the Defendant under the Defendants Personnel Policies and Procedure Guide (PPPG). Under the PPPG, the Claimant is entitled to end of service payment which has been deducted and set apart as reflected in the yearly annual returns. Paragraph 7.202 (a) and (b) of the Defendant’s PPPG makes voluntary retirement age in the service of the Defendant a minimum of 15years unbroken service or compulsory retirement at the attainment of 55years of age. The Defendant terminated the Claimant’s employment without paying the end of service entitlements. The claimant’s retirement benefits as provided by the Defendant’s retirement policy is N35,356,025.5. The Claimant has demanded for the payment but the defendant has refused to pay the end of service entitlements, claiming it unilaterally stopped that payment. The Claimant relied on that payment to work for the Defendant for 15 years and was not queried, but met all his targets. It is also the case of the Claimant that his 2017 annual share of profits (SOP), January 2018 salary, and one-month salary in lieu of a notice were not paid to him by the Defendant.

The law has always remained the same that in proof of the alleged wrongful termination, the Claimant in the instant case owes the task to plead the terms and conditions of his employment and to show how they have been breached and who has breached same. See the cases of ldoniboye – Obu V. NNPC (2003) LPELR- 1426 (SC), Oloruntoba-Oju v. Abdul-Raheem (2009) NWLR (Pt. 1157) 83 and Oforishe V. N.G.C. Ltd (2018) 275 LRCN 106 at 115, John Holt V. Nzeribe (2018) LPELR-4494 (CA).

Claimant in his bid to found his claim with a view to discharging the burden he bears, presented among others his letter of employment, letter of termination and Defendant’s Personnel Policies and Procedure Guide (PPPG) Handbook (Exhibits CW1A, CW1B and CW1H).

It is pertinent to observe that in determining the key reliefs raised by the Claimant, recourse shall be had to the third paragraph of Exhibit CW1B which is the termination of contract of employment which states thus:

“Your one Month Basic Salary in lieu of notice will be credited to your Salary Account.”

It should be noted that the Claimant tendered Exhibit CW1H which is version 2.8 of Personnel Policies and Procedure Guide (PPPG), while the Defendant tendered Exhibit DW3, version 3.1 of the Personnel Policies and Procedure Guide (PPPG).

Clause 7.20 to Clause 7.20.3 of Exhibit CW1H of version 2.8 of the Personnel Policies and Procedure Guide states thus:

7.20 END OF SERVICE BENEFITS.

7.20.1 General Policy

Fidelity has an attractive end of service benefits/pension scheme above the industry average.

The end of service benefit/pension is an important aspect of staff remuneration and Welfare and is given the desired attention in Fidelity. It is the policy of Fidelity to reward the loyal and dedicated staff that is about to retire.

7.20.2 Retirement Age

a. Voluntary Retirement: minimum of 15 years unbroken service

b. Compulsory Retirement: Attainment of 55 years of age

7.20.3 Types of Benefits

Fidelity has the following End-of-Service Benefits viz:

Gratuity benefits will be paid to any confirmed core member of staff who has served for a minimum of five years and who exits the Bank for reasons other than dismissal (on account of fraud, misconduct or criminal offense). Specifically, gratuity benefit shall be determined by a computed formula based on a combination of the following:

i. The total years of service put in by the qualified staff.

ii. The actual gross pay of the qualified staff in each particular year of service.

iii. The amount computed and frozen each year as gratuity for the qualified staff up to a maximum of 10% of the gross pay of the qualified staff each year.

iv. The aggregate total of annual accruals up to the exit date of the staff.

Key Notes to Revised Gratuity

i. Gratuity will no longer be computed solely on the terminal pay of qualified staff at the time of exit.

ii. All gratuity benefits earned under the old gratuity will be preserved for all qualified staff beneficiaries in services as at April 30, 2010.

The revised gratuity policy is subject to a viability review effective December 31, 2015 to determine continued relevance in line with the prevailing Bank and economic.

Retirement Benefits:

Gratuity: as existing. This usually does not amount to very much

b. Cash Benefits:

i. Up to SBE: Six months Basic salary, Transport and Housing for each completed year of service

ii. AM – SM: Nine months Basic salary, Transport and Housing for each completed year of service.

iii. AGM- DGM: Nine months Basic salary, Transport and Housing for each completed year of service

iv. GM: Two and half years Gross Terminal pay. Where an employee of GM level transits to Executive Director (ED) and wishes to retire within 3 years, the ED’s or GM’s benefit whichever that is higher will apply. This is to avoid the loss of benefits which would have been properly earned as a GM.

Exhibit DW3 which is version 3.1 of the Personnel Policies and Procedure Guide on End of Service Benefits states thus;

7.19 END OF SERVICE BENEFITS. General Policy

Fidelity Bank in line with statutory policies have Contributory Pension Scheme in place and remits same, monthly to preferred Pension Fund Administrator as appointed by staff.

The pension being an important aspect of staff remuneration and welfare is given the desired attention in Fidelity.

Retirement Age: This is upon attainment of 55 years of age.

It should be noted that the Defendant in paragraph 4(b)(c)(d)(e) and (f) of the statement of defence acknowledged that there is a PPPG, and the PPPG is subject to changes by the defendant. Based on the powers of the defendant to change the provisions of the PPPG, the defendant made changes in the PPPG in 2015 and 2016 and consequently created a new PPPG version 3.1. The changes made in the PPPG were communicated to the claimant. The claimant in paragraph 11 of his amended statement of facts states thus;

The Claimant avers that the said retirement policy of the Defendant was in effect until 23^rd December 2016 when the Defendant through its Chief Human Resources Officer, Charles Nwachukwu by an email dated 23^rd December abrogated the said retirement policy. The email dated 23^rd December 2016 is hereby pleaded and would be relied on at the trial of this suit.

There is no provision pertaining to voluntary retirement in version 3.1 of Personnel Policies and Procedure Guide (PPPG).

I will at this stage refer to Exhibit CW1K2 which is the cessation of gratuity and retirement benefits, dated 23^rd December, 2017, clause 3 and 4 states as follows;

In view of the maturation level of the 2004 Pension Act and alignment with industry practices, the Board approved the cessation of staff retirement scheme for all staff up to the Executives effective December 16, 1016. Recall, that the Staff Gratuity Scheme had earlier ceased on December 31, 2015.

HR is hereby authorized to commence the payment of earned gratuity to staff who have spent 5 years as at December 31, 2015 and retirement benefits to staff of the Bank who have spent 15 years as at December 15, 2016 in line with the extant policy. Please note that all applicable staff loans will also be deducted in line with the policy.

The Claimant’s stance of working with or for the Defendant for about 14years and 11months with the believe that he would be entitled and enjoy the retirement benefits upon his retirement appears not to have taken cognizance of the fact that he did not retire but was terminated by the Defendant. More so, it failed or neglected to also take cognizance of the fact that there were developments regarding employee’s pension, retirement benefits introduced by the Pension Reform Act which were not in existence or better put enforced at the time the Claimant was employed. Exhibit CW1K(1&2) (an email containing an internal memo to all the Defendant’s staff notifying them of updates in the Defendant’s gratuity scheme) communicated this development introduced by the Pension Reform Act which the Defendant noted due to statutory compliance and business exigencies its previous scheme would stop with the introduction of the contributory pension scheme.

In law, once parties of their own free will and volition enter into a written agreement, they should be in law bound to honour and be bound by the terms of their agreement and therefore their relationship and subsequent disagreements must be resolved in accordance with their agreement and the court cannot go outside the terms as agreed upon by the parties. It was held in Ahmed V. CBN (2012) LPELR – 9341(SC), that parties are bound by the terms of their contract and the court cannot read into such contract what was not within the contemplation of the parties, except where fraud, duress or misrepresentation can be established.

It is instructive to add that the terms of contract between the parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are arguably the guide to its interpretation. It is not within the purview of the court to rewrite a contract for the parties. See Minaj Holdings Ltd V Amcon(2015) LPELR – 24650(CA).

The courts therefore, in determining whether there has been a breach of that contract are enjoined to confine themselves to the plain words and meaning derived from the document. See Oyamenda V Abdulrahman (2013) LPELR – 22744(CA).

Before delving into the substantive suit by this judgment, the Claimant in his submission, relied in the judgment of the National Industrial Court of Nigeria, SUIT No: NICN/LA/588/2017 between Mrs Ekeoma Ajah vs Fidelity Bank Plc, delivered by Hon. Justice N.C.S Ogbuanya and urged me to follow suit.

In exemplifying that decisions of coordinate courts, so not bind another coordinate court the court in the case of ARUGU & ORS V. RIVERS STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2010) LPELR-9086(CA) posited that:

“Suit Numbers PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 are judgments of a High Court which has co-ordinate jurisdiction with the Court below in the appeal. It is trite law these decisions are of persuasive authority to the court below. See OBEYA V. SOWADE (1969) NNLR 17; 1969 (1) NMLR 112; see also POLICE AUTHORITY FOR HUDDERS FIELD v. WATSON (1947) KB 842 at 848. If the learned trial Judge agrees with the decisions in the judgments, he is right to follow them. On the other hand, if he disagrees with the said decisions, he also would be right to arrive at a different decision. “per ANOTOYE, JCA. (P. 40, paras. B-G).

From the records, I find that dispute that the Claimant was served notice of termination; that he was not paid according to his expectation based on the prevailing policy at the time of the Defendant terminating his employment ; that the Defendant through an email sent on 23^rd December, 2016, cancelled the existing retirement benefit and limited it to only those who have attained 15 years long service which is to operate retroactively; that similar cancellation of gratuity took place in the past but with one year notice by the Defendant.

The Claimant in his Amended Statement of Facts and as reflected in the language, used the terms retirement and resignation interchangeably. Usually in law, retirement and termination are both forms of disengaging from the services of an employment, but are distinct particularly in outcome. In retirement, an employee quits the services of the employer upon attainment of a certain age or minimum length of service and is entitled to certain benefits like pension, gratuity, etc. Termination on the other hand occurs where an employer terminates the employment of an employee upon giving the statutory or contractual notice or salary in lieu of notice. In the instant case, the Claimant’s employment was terminated by the Defendant vide Exhibit CW1B (Termination of Contract of Employment).

The evidence before the Court indicates that the Claimant’s employment was terminated, and he has not adduced credible, cogent and convincing evidence that upon his termination by the Defendant’s PPPG, he is entitled to retirement benefits. Termination does not equate retirement their outcomes and or effects are different.

Flowing from above, relief (a) fails and is hereby dismissed. I so hold

Relief (b) which is alternative to Relief (a) will have no pedestal to stand and by it’s nature and circumstances fails and is hereby dismissed. I so hold.

Be that as it may, the Claimant alleges that the Defendant notwithstanding its stance communicated vide exhibit CW1K2, the Defendant in a discriminatory manner as evinced by exhibit CW1L(1 and 2) (statement of account), the Claimant in his pleadings listed names and information of staff of the Defendant, which the Defendant paid staff retirement benefits. Paragraph 17 of the claimant’s amended statement of facts contain list of staff whose benefits were prorated and paid which ranged from 10 to 14 years of service. Paragraph 21 of the Claimant’s amended statement of facts is the list of the Claimant’s colleagues who were paid their full retirement benefits and retired in 2016.

The Claimant who supposedly knew of the Defendant’s discriminatory conduct in paying certain staff retirement benefits who had not attained 15years of service did not adduce evidence that he ventilated his concerns of same to the Defendant at the time given the fact that he was not paid despite his years of service. As despicable, painful and regrettable such discriminatory practice by the Defendant may be, the evidence before the Court shows that the Claimant by his omission to protest such conduct or lodge a complaint of his grievance with respect to same gave the Defendant the believe that he was okay with such conduct so is now estopped from complaining of such conduct.

After all, the claimant decided to be indolent premeditating or planning something in advance. This brings in the application of Section 169 of the Evidence Act 2011 (as amended) against him the effect of which is that a party can be estopped when he by virtue of an existing judgment, deed or agreement or by his declaration, act or omission intentionally caused or permitted another party to believe a thing to be true and to act upon such believe, neither he nor his representative in interest shall be allowed, in any proceedings to deny the truth of that thing.

Relief (c) of the Claimant’s claims borders in part on allegations of discriminatory practices by the Defendant and unfair labour practice. The Claimant alleges that the Defendant was discriminatory in its disposition in enforcing its retirement policy, that is, towards paying retirement benefits as it paid certain employees who had not clocked the 15years benchmark, and paid certain other employees retirement benefits who on receipt of same remained in the Defendant’s employment; these are grave allegations. See Order 14 Rule 1(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Looking closely at the paragraphs of the pleadings and the written statement on oaths, I am un able to see in any way the allegation of discrimination is shown in accordance with the instances itemised in the provisions of the said Order 14 Rule 1 (2) (a-n).

It is pertinent to note the question to be asked at this point; Can the Defendant validly change its existing policy in the manner it did to have effect of denying the Claimant his long expected exit package as stipulated in the service contract between the parties?

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

It is common ground between the parties that the Defendant sent in the new policy in an email issued on 23^rd December 2016 at 8.08 pm but made to take effect on 16^th December 2016 (Exh.CW1K2) cancelling the extant policy contained Personnel Policies and Procedure Guide (PPPG-Exh.CW1H).

The transition provision of the new policy (Exh.CW1K2) that preserved the extant policy states: “HR is hereby authorized to commence the payment of earned gratuity to staff who have spent 5 years as at December 31, 2015 and retirement benefits to staff of the bank who have spent 15 years as at December 15, 2016 in line with the extant policy. Please note that all applicable staff loans will also be deducted in line with the policy.”

For the purpose of reiteration, this Court has noted earlier that a Court has a duty to repudiate the ability of employers to unilaterally modify or amend the terms of their employees’ handbook where such employees’ handbook forms a contract between the employer and the employee.

The proviso in paragraph 3 of Exhibit DW3 (version 3.1 of the PPPG) reads: “…This Personnel Policies and Procedures Guide is the Bank’s Human resource policies and should be referred to by both Management and Staff on issues about employees’ condition of service. Like any other document on policies, this would be reviewed as often as necessary. Management has the right to unilaterally review privileges stated in this handbook based on performance and exigencies of business…”

These words are clear and unambiguous, it gives the management of the Defendant powers to unilaterally review the privileges captured in the handbook. There is nowhere therein that suggests that review of privileges must be by promulgation of another PPPG. Exhibit CW1K(1&2) clearly communicates the decision of the Defendant’s board to review the provision of the PPPG on gratuity and retirement benefits to bring the policies in conformity with the Pension Reform Act. The Claimant’s complaint seems to be hinged on the fact that the review communicated vide exhibit CW1K(1&2) and Exhibit DW3 affected previous or past retirement benefits provisions which he had an understanding he would benefit from on clocking 15years of service.

The Claimant’s stance of working with or for the Defendant for about 14years and 11months with the believe that he would be entitled and enjoy the retirement benefits upon his retirement appears not to have taken cognizance of the fact that he did not retire but was terminated by the Defendant. More so, it failed or neglected to also take cognizance of the fact that there were developments regarding employee’s pension, retirement benefits introduced by the Pension Reform Act which were not in existence or better put enforced at the time the Claimant was employed. Exhibit CW1K(1), (an email containing an internal memo to all the Defendant’s staff notifying them of updates in the Defendant’s gratuity scheme) communicated this development introduced by the Pension Reform Act which the Defendant noted due to statutory compliance and business exigencies its previous scheme would stop with the introduction of the contributory pension scheme.

The Claimant who appears to make heavy weather on the issue of his entitlement to retirement benefits is silent on whether or not with the introduction of the pension contribution scheme, he is not a beneficiary of same. Should the Claimant be benefitting from the pension contributory scheme which had the Defendant made statutory contributions towards her pension in a retirement saving account and requiring additional retirement benefits, Seeking additional retirement benefits may be akin to taking a second bite at the cherry.

The Claimant also alleges that the Defendant earmarked funds for retirement benefits yearly and in view of this it was wrong and discriminatory for it to refuse to pay him retirement benefits he is entitled to, he tendered exhibit CW1J(statements of the Defendant’s financial position for the years 2015 and 2016 respectively). The Defendant in response maintains that exhibit CW1H is evidence of the Defendant’s former policy on retirement benefits prior to its stoppage via exhibit CW1K(1 and 2) as there is no proof before the Court that the Defendant continued to earmark funds for retirement benefits after the issuance of exhibit CW1K(1 & 2). Exhibit DW3 shows that the Defendant put a stop to its previous retirement benefits for staff to bring its policy in line with the Pension Reform Act on 23/12/2016. The burden of proof lies on the Claimant to prove that, following exhibit DW3, the Defendant continued to earmark funds for retirement benefits part of which she was entitled to.

This Court is of the considered view that the Claimant has not discharged this burden. Also, this Court finds that given the contents of exhibits DW3 and CW1K respectively, the policy on gratuity and retirement benefits of the Defendant though modified unilaterally was modified to bring same in conformity with the provisions of the Pension Reform Act and not modified retrospectively. Furthermore, the provisions of exhibits CW1K(1) and DW3 (the Defendant’s PPPG) allows the Defendant to unilaterally review staff privileges, so the Defendant’s review of its gratuity scheme as evinced by exhibit CW1K(1) and its retirement policy as evinced by exhibit DW3 in the considered view of this Court does not constitute an illegality contrary to the stance of the Claimant. In view of these findings, the Claimant’s reliefs (c) fails and it is refused same be and it is hereby dismissed. I so hold.

Relief (d and e) will be taken together. By Exhibit CW1B, clause 3 therein states thus: “Your one Month Basic Salary in lieu of notice will be credited to your Salary Account.”

Going through Exhibit CW1L2, (Claimant’s statement of account), the defendant failed to pay the Claimant his one- month salary in lieu of notice and the Claimant’s salary for the month of January 18, 2018 which the Claimant is entitled to. On the 2017 annual share profits (SOP), going by Exhibit CW1J, the Claimant waived his rights which may be attached to the shares. To this point, the Claimant is not entitled to the 2017 annual share of profits (SOP). On one leg, the Claimant is entitled to January salary 2018 and one month salary in lieu of notice, and on the second leg, not entitled to the Share of profit. I so hold.

Relief (f) is an ancillary relief. It is a well settled position of law that the grant of ancillary relief is dependent on the success of a principal relief. So, where the principal reliefs fail, the ancillary or associated reliefs would also fail as it has no foundation. See Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117, Olayemi v FHA (2023) 3 NWLR (Pt. 1872) 445 at 500, E. In the light of the earlier findings of this Court with respect to the Claimant’s relief (f), it fails and accordingly dismissed. I so hold.

Relief (g) which is an alternative to relief (f) also must as well fail and I so hold.

Relief (h) is for an order directing the immediate payment to the Claimant by the Defendant the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), being the Claimant’s January 2018 salary due to the Claimant. Having reviewed the circumstances of this relief. This relief succeeds as the claimant was not paid salary before his appointment was terminated. This relief succeeds. I so hold.

Relief (i) which is an order directing the immediate payment to the Claimant by the Defendant the sum of N146,781.99 (One Hundred and Forty-Six Thousand, Seven Hundred and Eighty-One Naira, Ninety-Nine Kobo), being the Claimant’s one-month salary in lieu of a notice due to the Claimant. This relief succeeds as the claimant is entitled to one month salary in lieu of notice as stipulated in Exhibit CW1B. I so hold.

Relief (j) which is an order directing the immediate payment to the Claimant by the Defendant the sum of N106, 733.30 (One and Six Thousand, Seven Hundred and Thirty-Three Naira, Thirty Kobo), being the Claimant’s 2017 annual share of profits (SOP) due to the Claimant. This relief is refused and dismissed as the Claimant in Exhibit CW1J relinquished his rights to the Defendant. It is the law that claims in the pleadings which are not supported by evidence go to no issue. The claimant cannot approbate and reprobate at the same time. Thus; this relief fails and I so hold.

Relief (k) which is an order directing the Defendant to refund or cancel all interests charged on the Claimant’s account by the Defendant on the sum of N2,217,369.07 (Two Million, Two Hundred and Seventeen Thousand, Three Hundred and Sixty- Nine Naira) being the alleged unearned allowances given to the Claimant by the Defendant. Exhibit CW1L2 (Statement of account attached thereto) that reflects the Claimant’s electronic statement of account does not reveal any illegal debits, the Claimant did not give any other background evidence to support this leg of his claim. This relief fails and therefore dismissed. I so hold.

Relief (l) is for an order directing the Defendant to pay to the Claimant interest at the rate of 35% per annum on the Claimant’s unpaid retirement benefits, January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP) from January 2018 until judgment is given in this suit.

As for the claim of pre-judgment interest, the law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties; or under mercantile custom or under the principle of equity. See Dantama v. Unity Bank Plc (2015) LPELR-24448 (CA). It is for the Claimant to prove his entitlement to the stated pre-judgment interest. This accords with the old age principle that he who asserts must prove same. The Claimant has failed or neglected to prove how he is entitled to the rate of interest claimed.

In Africa Prudential Registrars Plc v Macaulay (2020) 18 NWLR (Pt. 1755) 1 at 30, C-F, it was held that a claim for pre-judgment interest more often than not, arises from the agreement of the parties, that is, from the contemplation of the parties, so it is required to be specifically pleaded and proved for a party to be entitled to it. This the Claimant did not do, he did not plead facts in support of his claim for pre-judgment interest likewise the claim is not supported by evidence. Not having proved same, this is relief is refused and accordingly dismissed.

Relief (m) is for an order directing the Defendant to pay to the Claimant the sum of N45,000,000 (Forty Five Million Naira) only as general damages for unfair labour practice, failure to pay January 2018 salary, one-month salary in lieu of a notice, and 2017 annual share of profits (SOP) and failure to honour the Personnel Policies and Procedures Guide (PPPG), which have resulted in psychological trauma, shock, mental agony, psychological depression, embarrassment, inconveniences and financial impecuniosity to the Claimant.

This Court had earlier found that the Defendant’s PPPG that was in force at the time of the determination of the Claimant’s employment was exhibit DW3, that is, version 3.1 of the PPPG. Exhibit DW3 unlike exhibits CW1H (versions 2.8 of the PPPG) does not contain any provision on voluntary retirement after 15years of unbroken service which the Claimant relies on. Clause 7.19 of exhibit DW3 reads: “Fidelity Bank in line with statutory policies have Contributory Pension Scheme in place and remits same monthly to preferred Pension Fund Administrator as appointed by staff. The pension being an important aspect of staff remuneration and welfare is given the desired attention in Fidelity. Retirement Age: This is upon attainment of 55 years of age.”

This presumably means that the Claimant benefits from a contributory pension scheme and yet makes heavy weather of psychological trauma, shock, mental agony, psychological depression, embarrassment, inconveniences and financial impecuniosity suffered from the Defendant reneging in paying him retirement benefits using the provision of Clause 7.20.2 of versions 2.8 of the PPPG (exhibits CW1H). The Claimant’s retention of his employment on receipt of exhibit CW1K (1&2) constituted acceptance of the offer of unilateral review of retirement benefits and policy, by him continuing to stay on the job, although free to leave. The Claimant is now estopped from complaining that the Defendant reneged on the enforcement or applicability of clause 7.20.2 of previous PPPG no longer in force.

In a claim for damages and other reliefs based on an allegation of breach of contract, it is my considered view that the Claimant herein is not entitled to any remedy where the claimant fails to prove breach of contract See– UBN Plc v. Ravih Abdul & Co. Ltd (2019) 3 NWLR (Pt. 1659) 203 at 224, D. This Court reiterates that the Claimant has failed to prove that the Defendant is in breach of exhibit DW3 with respect to his end of service entitlements or retirement benefits. This claim thus fails for want of evidence and is hereby dismissed. I so hold.

Relief (n) is for interest on the judgment sum at the rate of 21% per annum from the date of judgment until the judgement sum is fully paid.

The Claimant is only entitled to reliefs (d and e) on one part, and entitled to reliefs (h and i) only. This relief similarly fails as there is no legal or factual basis for the award of post judgment interest. This relief is dismissed.

Relief (o) is for cost of this suit.

The Court would be unable to grant the Claimant’s relief for cost of this suit as it would be injudicious to grant same in the light of the findings of this Court with respect to other legs of the reliefs. The claim for cost of this action fails and is accordingly dismissed.

On the whole, and for avoidance of doubt, the issues for determination is resolved in the negative as the claimant is not entitled wholly to the reliefs sought, but only entitled to reliefs (h and i). All other reliefs having been dismissed. The defendant is hereby ordered to immediately pay to the claimant the sum of N146,781.99 (One hundred and forty six thousand, seven hundred and eighty one naira, ninety nine kobo) being the claimant’s January 2018 salary due to the claimant AND the sum of N146,781.99 (One hundred and forty six thousand, seven hundred and eighty one naira, ninety nine kobo) being the claimant’s one month salary in lieu of a notice due to the claimant.

As for the alternative reliefs, it is trite that a main claim and alternative relief cannot be granted at the same time. Where a claim is in the alternative, the court should first consider whether the principal or main claim ought to have succeeded. It is only after the court may have found that it could not for any reason, grant the principal or main claim that it would then consider the alternative claim. In other words, an alternative award is an award that can be made instead of another. It is a separate claim and a separate award. It is not an additional award, otherwise, it will amount to double compensation which must be avoided. See G.K. Investment Nigeria Limited v. Nigeria Telecommunications Plc (2009) 7 SCNJ 92 at 116.

The alternative reliefs are dismissed.

Now, on the counter claim of the Defendant, the law is settled that a counter claim is a separate suit of its own. Thus, while the Claimant is expected to lead credible, cogent and admissible evidence in support and proof of his claims, the Defendant/Counterclaimant is equally under an obligation to so prove his counter claims to be entitled to a grant. In the absence of such credible, cogent and admissible evidence, the counterclaim will be dismissed. See A.G. Anambra State & Ors. V. Ezeme & Ors. (2014) LPELR-24342. The sum claimed as counter claim as averred by the Defendant is allowances not earned. In much the same, payment of allowances to the tune of the amount being claimed as counter claim must have some traces of the payment. In the instant case, there was no evidence tendered by the Defendant/Counter claimant in proof of this counter claim. I therefore refuse the counter claim and dismissed same accordingly.

The claim for interest on the sum counter claimed as well as legal cost/expenses incurred by the Defendant/Counter claimant are ancillary reliefs. Their success is predicated on the success of the main counter claim. The sum counter claimed is the pillar upon which counter claim for interest and legal cost rest. It portends therefore that where the main or principal counter claim fails, the ancillary claims must certainly fail. In the instant case, this Court has already dismissed the counterclaim for sum of Two Million, Two Hundred and Seventeen Thousand, Three Hundred and sixty- Nine Naira, Seven- kobo (N2,217,369.7.) being the Claimant’s indebtedness to the Defendant comprising the unpaid loan and upfront allowances paid to the Claimant which he did not earn for the period he rendered no services to the Defendant. Having done so, there is no support base for these two ancillary claims. After all it is trite that you cannot put something on nothing and expect it to stay there. Therefore, I refuse and dismiss the counter claim, for interest as well as claim for legal cost/expenses incurred in this suit by the Defendant/Counter claimant.

Judgment is entered accordingly.

HON. JUSTICE S. A. YELWA

(JUDGE.)

LEGAL REPRESENTATION

Kelechi Okeke Esq. for the Claimant

S. W. Pepple Esq. for the Defendant