IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE R. H. GWANDU

DATE: 18^th December, 2025                         SUIT NO.: NICN/LA/275/2021

BETWEEN

 

1. HENRY NWAGBO
2. BARNABAS K. OSU
3. MRS. GIWA-OSAGIE M.O
4. ADESINA MOJISOLA ADEOLA
5. AYODEJI AGNESS IYABO
6. RAJI M.K.
7. UDE SIMON PETER
8. ADISA JACOB AYOKU
9. OSUEIGBOLEKU ANN C.
10. OKIYI OKECHUKWU
11. OYEGUN IMADE
12. ANYACHOR V.O.
13. SHEKONI T.O.
14. OGULEDO WILLIAM ANAMELECHI
15. IHEBOM CHARLES CHI-EMEKA                                  
16. ONEWOKAE M.A.                                                               CLAIMANTS
17. PAUL NWABUOKEI
18. OLUMIDE O.A.
19. UZODINMA F.
20. OMOTOSHO O.A.
21. UDE C.C.
22. ODIGBO E.E.
23. AKOLA CELESTINA C.
24. ODETUNDE TOLULORE
25. TAIWO EUNICE OLABISI
26. MABAWONKU K.A.
27. OSUALA R.N.
28. NWOSU E.O

(Suing for themselves and all employees short paid 

their terminal entitlements                       

AND

UNION BANK OF NIGERIA PLC                                            …        DEFENDANT

Legal Representation.

Chief Paul Omoijiade with Stephanie Ukonga-Ojeikere for the Claimants

M.S Umar with Omobhude for the Defendant

JUDGMENT

By an Amended General Form of Complaint dated 3^rd June 2022, the Claimants commenced this suit against the Defendant, seeking the following reliefs:

1. A Declaration of this Honourable Court that the Defendant is in arrears in the payment of Claimants’ gratuities.
2. A Declaration of this Honourable Court that the deductions of already earned income which includes: leave, education, housing and lunch allowances from the Claimants’ gratuities is wrongful and unlawful.
3. A Declaration of this Honourable Court that the non-payment of the 150% exit payment to the 9^th Claimant is wrongful.
4. An Order of this Honourable Court compelling the Defendant Bank to pay the Claimants the shortfall in their gratuity entitlements as shown in paragraph 11 Table III of the Statement of Facts in line with the Pension Trust Deed of Variation, 1996 – Gratuity Rules page 15 paragraph 18 into the Chambers of the Claimant’s Solicitors, Paul Omojiade of Paul Akhere Chambers.
5. An Order of this Honourable Court compelling the Defendant to refund the deducted already earned income deducted from the gratuity of the Claimants as shown in Paragraph 19 Table IV of this Statement of Facts into the Chambers of the Claimant’s Solicitors, Paul Omojiade of Paul Akhere Chambers.
6. An Order of this Honourable Court for the refund of shortfall of gratuity entitlement of the Claimants computed using total exit gross pay/emolument less gratuity already paid into the Chambers of the Claimant’s Solicitors, Paul Omojiade of Paul Akhere Chambers.
7. An Order of this Honourable Court for the payment of interest at 20% compounded annually on the gratuity shortfall and earned income deducted from the Claimant’s gratuity from the date of such deductions and withholding of the gratuity sums till date of full liquidation by the Defendant.
8. An Order of this Honourable Court for the payment of N3,501,000.00 being 150% exit payment to the 9^th Claimant.
9. An Order of this Honourable Court that the Defendant Bank pay to the Claimants the sum of N1,000,000.00 (One Million Naira) being the cost of litigating this matter.

In opposition to the Claimant’s claims, the Defendants filed an Amended Statement of Defence on the 10^th of August 2022.

BRIEF FACTS OF THE CASE.

The case of the Claimants is that upon their premature retirements, the Defendant paid them various sums as gratuities using their basic salary, Housing, transport and lunch allowances instead of basic salaries and all allowances. The wrong parameters used resulted in the short payment of their gratuities entitlements. The Claimants became aware that the computation of their gratuities should have been based on their basic salaries and all allowances after the decisions in Suit No NICN/LA/806/2016 the judgment of which was delivered on 6^th February, 2020 by his Lordship Hon. Justice R.H. Gwandu and NICN/LA/160/2017 the judgment of which was delivered on 30^th June, 2020 by his Lordship Hon. Justice P.A. Bassi.

It is also the case of the Claimants that upon the termination of their employments, the Defendant deducted various sums of already earned income from the terminal benefits paid to them in breach of their contract of employment and Article 8 of ILO, Protection of wages (Convention, 95) 1949. The 9^th Claimant was denied payment of the 150% exit benefit pursuant of Agreement of September between the Unions.

The Defendant contends that the Claimants’ contract of employment is governed by their individual letters of employment, Trust Deed and Policy circulars and that there is no provision in the Claimants’ contract of employment or Trust Deed that gives the Claimants the right to remain in the Defendant’s employment till the attainment of 60 years.

The Defendant further contended that the Claimants’ gratuities were paid correctly in line with the Defendant’s Trust Deed of Variation and the Defendant’s Circular – 18/97 on the basis of basic salary, housing allowance, transportation allowance and lunch allowance.

Also, that the Suit was statute barred and also an abuse of Court process.

DEFENDANTS’ ARGUMENT.

The Defendants final address was filed on the 8^th April, 2025 and Counsel to the defendant submitted the following issues for determination:

1. “Whether this action is statute-barred, thereby robbing this Honourable Court of jurisdiction to entertain same” 
2. “Having regard to the conduct of the Claimants, whereby they accepted and appropriated the gratuities and pensions paid to them since between 2010-2014, whether the Claimants are not legally inhibited by the doctrine of estoppel by conduct from bringing this action?”
3. Whether this Court can place any weight or probative value on Exhibit Barnabas 1- page 1-54 [Exit Letters] being documentary hearsay.
4. “Whether having regards to the evidence led in this case, the Claimants has established sufficient evidence for the grant of the reliefs sought in this suit”.

Arguing issues one and two together, Counsel submitted that all the 29 Claimants in this Suit left the employment of the Defendant under different circumstances, ranging from retirement, termination of employment, withdrawal of services and resignation between the year 2010-2014. The Claimants’ respective years of exits from the employment of the Defendant is found in the Claimants’ Exhibit Barnabas 1- page 1-54 [Exit Letters], that this suit was instituted by the Claimants via a General Form of Compliant dated 23^rd July 2021 but filed on 2^nd August 2021, that is more than Six (6) years after the accrual of the course of action between 2010 -2014 making the Suit Statute barred. The Claimants are also estopped from instituting the action as a result of their conduct and attitude in keeping silent for more than Six years before filing this Suit having received their gratuity payment since between 2010-2014.  

That the law is trite as has been stated time and again on the time of accrual of a cause of action. The Supreme Court in WOHEREM V. EMEREUWA & ORS (2004) LPELR-3500(SC) PP 15-15 PARAS E-F held that: 

“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached.”

Also that in determining whether an action is statute-barred, the Supreme Court in ABDULLAHI V. LOKO & ORS (2022) LPELR-57578(SC) PP 6, PARA D has stated that “…it is a matter of calculation of raw figures which extricates the discretion of the Court in respect of the matter.” 

Counsel submitted that ax cursory look at Exhibit Barnabas 1- page 1-54 [Exit Letters] before this Court reveals that each of the Claimants exited the employment of the Defendant between the year 2010-2014 when they received their gratuity payment from the Defendant. Section 8 of the Limitation Law of Lagos State provides that “the following actions will not be brought after the expiration of six (6) years from the date on which the cause of action accrued; actions founded on simple contract”.

Counsel submitted that the law has since changed from its earlier position-that the Public Officers (Protection) Act does not apply to contract of service or employment contract or that employment contracts are not affected by limitation law- as held in NATIONAL REVENUE MOBILISATION ALLOCATION AND FISCAL COMMISSION (NRMA & FC) & 2 OTHERS (2019) 2 NWLR (PT. 1656) 247 and the other cases settled in that line, that the position NOW, as is as settled by the Supreme Court in MICHEAL IDACHABA & ORS V UNIVERSITY OF AGRICULTURE, MARKURDI & 4 ORS [2021] LPELR – 53081 (SC), decided on 15^th January 2021. The Supreme Court held that: “In all actions, suits and other proceedings at law and equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief of a party who has by his conduct acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has waived or abandoned his right. See per Galadima JSC in INEC v Ogbadibo Local Govt & Ors (2015) LPERLR -24839 (SC) pp 30-31, para D. It is therefore…..where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period.

Also, that in ABUBAKAR ABDULRAHMAN V NNPC [2020] LPELR-55519 (SC) the court held that employment contracts are subject to statutes of Limitation. In the most recent case of DR. MOSES U ANOLAM V THE FEDERAL UNIVERSITY OF TECHNOLOGY OWERRI (FUTO) & ORS LPELR – 80027 (SC) at 22-25, the Supreme Court relying on its earlier decision in INEC V. OGBADIBO LOCAL GOVT & ORS (supra) also re-emphasized that employment contract are subject to limitation laws. 

Counsel submitted that it now beyond peradventure that this instant case filed after limitation of 6 years has become statute barred. For this reason, the Claimants cannot rely on paragraph 20 of their witness statement on oath to state that their cause of action arose in 2020 by virtue of the decision of this Court in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017.

In the recently decided unreported case by this Court, per Honourable Justice (Prof.) Elizabeth A. Oji in Suit No.: NICN/LA/70/2024 between Adepoju & G.A  Vs Union Bank of Nigeria Plc, which judgment was delivered on 26^th February 2025 and which case is on all fours with the instant case, the Claimants therein said their cause of action arose in 2020 after the decision of the Court in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017, the same Suits relied on by the Claimants in this case by virtue of paragraph 20 of their witness statement on oath. The Court in the above Adepoju’s case whilst reviewing the decision of the Court in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 at paragraph 17 page 8 held as follows: “I am convinced that the judgments relied on by the Claimants in bringing this action did not create a fresh cause of action for the Claimants to resurrect an issue that had been done and dusted by the Defendants more than sixteen years ago. That is certainly beyond the six years allowed by the Lagos State Limitation Law. This Suit is statute bared. See also the case of Susanna Abioala Orekoya v Union Bank of Nigeria- Suit No. NICN/LA/209/2021 Judgment delivered on 16^th February 2023 per Justice M.N. Esowe.” 

Also, that in the unreported case of Mrs. Susannah Abiola Orekoya v Union Bank of Nigeria. Suit No.: NICN/LA/209/2021, a case the facts of which are on all fours with this case, the Claimant also received his pension and gratuity together with all other entitlement, came to Court 13 years later claiming a shortfall in payment, Honourable Justice M. N. Esowe in the judgement delivered on 16^th February 2023 stated thus:

“The failure of the Claimant to approach the Court timeously to seek redress meant the Claimant stood by and waived good-bye to his rights, regrettably so. I so hold. It then means that this suit filed on 02.07.2021, was filed six (6) years and five months after the cause of action on the issue of pension arose and thirteen (13) years after the cause of action on gratuity entitlement arose. Both are well outside the specified limit for actions founded on simple contracts which are required to be brought within six (6) years from the date the cause of action accrued. Thus, making this suit invalid and of no utility effect. See EBONYI STATE UNIVERSITY V IFEANYI (2016) LPELR-41051, ONUH & ANOR V OGBE (2019) LPELR-48361(CA), ADEWALE & ANOR V A.G. LAGOS STATE & ORS (2021) LPELR-54828(CA). This means the Claimant has lost his right of action not withstanding that his cause of action may be valid”

Thus, the Claimants’ action having become statute-barred, it is no longer justiciable. See Yusuf Wali v. All Progressives Congress (APC) [2020] 16 NWLR pt. (1749) pg. 103. Para. A.

Also, that in the same vein, the Claimants having accepted and appropriated the gratuities and pensions paid to them since between 2010 and 2014 they are legally restricted and forbidden by the doctrine of estoppel by conduct from bringing this action, see Section 169 of the Evidence Act, 2011. The Claimants, having accepted the payment of gratuity between 2010-2014 and had by their conducts made the Defendants believe that their gratuity was correctly paid, in the light of Section 169 of the Evidence Act, 2011 cannot turn around to state the contrary. See ATTORNEY GENERAL OF RIVERS STATE V. ATTORNEY GENERAL OF AKWA IBOM STATE (2011) ALL FWLR (Pt. 579) 1023 at 1054-1055 (SC).

Arguing issue three, Counsel submitted that CW1 tendered Exhibit Barnabas 1- page 1-54 [Exit Letters] they are the letters of termination, resignation, withdrawal of service or voluntary retirement etc of the 29 Claimants herein, it is safe to note that apart from the exit letter of  the CW1, dated 2^nd July 2010 and 14^th December 2010 which forms the bundle of documents marked as Exhibit Barnabas 1- page 1-54 [Exit Letters] the others were letters made between the other 28 Claimants and the Defendant, hence the CW1 cannot tender the said letters in evidence except as provided by Section 83 of the Evidence Act. Furthermore, that all of CW1’s averments in respect of the other 28 Claimants are also hearsay because it is impossible for the CW1 to have the information of the other 28 Claimants alleged short fall in gratuity payment or alleged deductions of earned income without being told by the said other 28 Claimants, thus, the CW1, did not disclose how he knew the averments in respect of the other 28 co-claimants, including the bundle of documents marked as Exhibit Barnabas 1- page 1-54 [Exit Letters] tendered in evidence for the other 28 co-claimants in this case. That it is submitted that by Section 83 of the Evidence Act 2011, only the maker of a document, or the party named in the document that can tender it or else it will be regarded as documentary hearsay. The same Section 83 of the Evidence Act 2011 also provides for the exceptions to this rule. The exceptions are that it must be shown that the maker is dead, unfit by reason of his bodily or mental condition to attend as a witness, or is outside Nigeria and it is not reasonably practicable to secure his attendance.

Hence, for the Claimants to take advantage of the exceptions under Section 83 of the Evidence Act 2011, the CW1 must lay a foundation as to the unavailability of the 1^st and 3^rd - 29^th Claimants [which make up the remaining 28 Claimants] or the death of each of them so as to bring them within the exceptions provided by Section 83 of the Evidence Act, to enable the CW1 (2^nd Claimant) to tender the said Exhibit Barnabas 1- page 1-54 [Exit Letters] and to enable the Court place any probative value or weight on the said Exhibit.

Whilst the Court is at liberty to have admitted the said Exhibit Barnabas 1- page 1-54 [Exit Letters] in evidence as it did, Section 83 of the Evidence Act restrains the Court from placing any weight or probative value on the said Exhibits as they were tendered in steep contravention of Section 83 of the Evidence Act, see FOLORUNSHO & ANOR V. IGE & ORS (2015) LPELR-41680(CA) wherein Haruna Simon Tsammani, JCA at  42 - 50 Paras A – E decided extensively on the position of the law as regards tendering and admission of a document through a person other than the maker of such a document.

Similarly, the CW1 was not there when Exhibit Barnabas 1- page 1-54 [Exit Letters] were made between the remaining 28 Claimants and the Defendant, the Exhibits are therefore documentary hearsay which this Court cannot place any weight or probative value on. 

Arguing issue four, Counsel submitted that the law is trite that before a final determination of a case, the Court is expected to review and evaluate the facts and evidence presented by the parties in determining the respective rights and obligations of the parties in the case, see AKERELE V. AJOSE- ADEOGUN & ORS (2018) LPELR-43763(CA).

Prefatorily, it is important to point out that the first three [3] reliefs [reliefs a – c in the Claimants’ General Form of Complaint] are declaratory reliefs, such that it is only when it is shown that the Claimants have on the preponderance of evidence substantiated or proved their entitlement to reliefs a - c, before the Court can then go on to consider if the Claimants have established by evidence their entitlement to the other reliefs [that is reliefs d-i].

The law is that when a party seeks declaratory relief, he must prove same by cogent evidence and succeed on the strength of his own case and not on the weakness of the Defendants’ case, see OYEWUSI V. OLAGBAMI (2018) 14 NWLR (PT. 1639) 297 AT 317 PARA. C-D, DUMEZ NIG. LTD. V. NWAKHOBA (2008) 18 NWLR (PT.1119)361; BELLO V. EWEKA (1981) 1 SC (REPRINT) 63; ILORI V. ISHOLA (2018)LPELR-44063; OKOYE V. NWANKWO (2014) 15 NWLR (PT.1429) 93; EGUAMWENSE V. AMAGHIZEMWEN (1993) 9 NWLR (PT.315) 1. 

On whether the Claimants have proved their Claim for Shortfall of Gratuity, Counsel submitted that the Claimants claim that by the provisions of the Defendant’s Pension Trust Deed – Gratuity Rules 1996, paragraph 18 at page 15 and paragraph 20 at page 9 [Exhibit Barnabas 4 Page 1-19] thereof, that they are entitled to gratuity payment on certain parameters [other than the parameters by which the Defendant had computed and paid their gratuity between 2010 and 2014], also that they became aware that the parameter used by the Defendant in computing and paying their gratuity between 2010 and 2014 was wrong because of the definition of “total emolument” by this Court in Suit Nos: NICN/LA/806/2016 and NICN/LA/160/2017 which judgments the Claimants alleged were delivered in the year 2020 although none of the said Suits defined “total emolument”, the implication of the Claimants’ reliance on the alleged definition of “total emolument” in Suit Nos: NICN/LA/806/2016 and NICN/LA/160/2017 as stated in paragraph 20 of their witness statement on oath is that the Claimants have a burden to prove that “total emoluments” was defined in the said Suit and also point to the Court, the definition of “total emolument” in the said Suit for the consideration of this Court.

The further implication of Claimants’ reliance on the alleged definition of “total emoluments” in Suit Nos: NICN/LA/806/2016 and NICN/LA/160/2017 as stated in paragraph 20 of the Claimant’s witness statement on oath, is that if this Court finds that “total emoluments” was not defined by the Court in the said Suit Nos: NICN/LA/806/2016 and NICN/LA/160/2017 or that the Court decision in the said Suit Nos: NICN/LA/806/2016 and NICN/LA/160/2017 did not define “total emoluments” taking into consideration the meaning of “total emolument” as provided in paragraph 16 of the Defendant’s Circular No. 18/97 [Exhibit Idiaghe page 1-7], the Claimants’ case automatically fails and liable to be dismissed by this Court.

Counsel submitted that it is instructive to point out that the Claimants did not tender the judgment in Suit Nos: NICN/LA/806/2016 and NICN/LA/160/2017 in evidence before this Court in proof of the Claimants’ averment in paragraph 20 of their Witness Statement on Oath, or even state in their pleadings the definition of “total emoluments” by the said judgment. Hence, there is no evidence in proof of paragraph 20 of the Claimants’ witness statement on oath and the said paragraph is deemed abandoned, see C.B.N. v. Dinneh (2010) 17 NWLR (Pt. 1221) 125 P. 161, paras. E-F, Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234 at P.248, para. C.

On whether the Court defined “total emoluments” in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017, Counsel submitted that aside the fact that there is no evidence of the judgment in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 before this Court, that this court did not define “total emoluments” in the said Suits, that this Court per Honourable Justice (Prof.) Elizabeth A. Oji, had an opportunity to pronounce on whether “total emoluments” was defined in Suits No, NICN/LA/806/2016 and NICN/LA/160/2017 as erroneously contended by the Claimants in paragraph 20 of their witness statement on oath. In doing that, Elizabeth A. Oji J. in unreported Suit No. NICN/LA/03/2021 - Oviakporie Owho vs Union Bank Plc came to an irresistible conclusion that “total emoluments” was not defined in the said Suits No, NICN/LA/806/2016 and NICN/LA/160/2017.

Counsel submitted that it is instructive to note that this present Suit is on all fours with the Oviakporie’s case wherein the Claimants absolutely relied on the same Suits No. NICN/LA/806/2016 and NICN/LA/160/2017 in alleging the definition of “total emoluments”, Thus the fact that “”total emolument” was not defined by the Court in the Suits relied on by the Claimants or that in  NICN/LA/160/2017- C.E. Okeke & 2 Ors v Union Bank of Nigeria Plc relied on the non-contextual interpretation and non-disclosure of the full dictum of the Court, as presented by the Claimant in that case implies that the Claimants have no case to pursue in this Court.

On whether the Trust Deed, paragraphs 18 and 20 thereof made provisions for computation of gratuity using parameters other than “basic salary, lunch basic salary, lunch subsidy and housing and transport allowance”, Counsel submitted that the Trust Deed [Exhibit Barnabas 4 Page 1-19] did not make any provision for the computation of gratuity using the parameters/items as contended by the Claimants. In fact, those parameters/items as alleged by the Claimants are not contained in the Trust Deed before this Court. Hence, this Court cannot read into the Trust Deed parameters/items which are not stated in the said Exhibit Barnabas 4 Page 1-19.  The law is that Courts are not allowed to read extraneous matters into a contract/or agreement. See  M.F. Kent (W.A.) Ltd. v. Martchem Ind. Ltd. (2000) 8 NWLR (Pt. 669) 459 P. 473, paras. E-F.

The respective provisions of the Trust Deed [Exhibit Barnabas 4 Page 1-19] relied on by the Claimants paragraphs 18 and 20 did not provide that “total emoluments” shall include “basic salary and all allowances” as erroneously contended by the Claimants. Instead, the parameters/items listed in the said paragraphs 18 and 20 of Exhibit Barnabas 4 Page 1-19 are simply “basic salary, lunch subsidy and housing and transport allowances”.

The Court and the Claimants are with all due respect estopped from reading “basic salary and all allowances” as contended by the Claimants into Exhibit Barnabas 4 Page 1-19, because “basic salary and all allowances” are extraneous, strange and alien to paragraphs 18 and 20 of Exhibit Barnabas 4 Page 1-19.

Furthermore, there is no indication that the framers of the Trust Deed of 1996 (Exhibit Barnabas 4 Page 1-19), intended to define “total emoluments” to include “basic salary and all allowances” other than the items/parameters already specifically mentioned in the said Trust Deed itself, which are: “basic salary, lunch subsidy and housing and transport allowances” and it is to be noted that the framers of the Trust Deed were meticulous to state in paragraph 16 of the Trust Deed that in the event that there are questions as to interpretation or definition of terms in the Trust Deed, that the “decisions of the director on any question, doubt or the difference as to the meaning or interpretation or effect or operation of the Deed or the Rules shall be conclusive”.

Therefore, if there is any question as to the meaning of terms used in the Trust Deed, including the meaning of “total emoluments”, the Court must look into other documents such as the Circular No. 18/97 [Exhibit Idiaghe 3 page 1-7]. made by the same Defendant wherein those terms were defined or interpreted, as this Court will be acting in grave error to import definitions that are alien to the Trust Deed, even as it has become very clear that neither the Trust Deed nor the Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 relied on by the Claimants   defined “total emoluments” in the way and manner the Claimants are attempting to impose on this Court.

Also, that the Claimants are bound by contract, see A.I.B. LTD. V. I.D.S. LTD (2012) 17 NWLR (PT. 1328) 1 P. 50, PARAS. D-G; 55, PARAS. A-E). As such the Claimants are not at liberty to pick and choose a part of the contract to their favor and disavow other aspect of the contract which appears not to support their case, the Claimant cannot rely on paragraphs 18 and 20 of Exhibit Barnabas 4 Page 1-19 in support of their case and reject paragraph 16 of the same Exhibit and interpretations made by virtue of the said paragraph 16.

The law is that the Claimants cannot be seen or allowed to take benefit of some conditions in Exhibit Barnabas 4 Page 1-19 such as paragraphs 18 and 20 , which they consider favourable but seek to negative the other provisions such as paragraph 16 and the interpretations made pursuant to it. See CORNET & CUBBIT LTD & ANOR V. FHA & ORS (2022) LPELR-57507(CA) AT P 40 - 42 PARAS F – C.

It is Counsels submission that there is nowhere in the Trust Deed put before this Court for interpretation wherein “total emoluments” was interpreted to include “basic salary and all allowances” as the items to be considered when computing gratuity. Rather the items which the Trust Deed considered for computation of gratuity were simply stated as follows: “shall include basic salary, lunch subsidy and housing and transport allowances”, that his Court in Chief Oviakprie Owho vs Union Bank Plc - Suit No. NICN/LA/03/2021, judgment of which was delivered on 4^th October 2024 had the opportunity of interpreting the word “include” as used in the Trust Deed [Exhibit Barnabas 4 Page 1-19] and the Court held that “include” as used in the Trust Deed did not give liberty to include items which were not listed in the Trust Deed in computing gratuity, but that “include” as used in the Trust Deed only meant that items specifically provided in the Trust Deed that can be considered in the computation of gratuity and all other items not specifically provided must be excluded.

From paragraph 43 page 18 to paragraph 46 page 20 of the judgment of this Court per Honurable Justice (Prof) Elizabeth Oji in Chief Oviakporie Owho vs Union Bank Plc - Suit No. NICN/LA/03/2021, the Court held that to construe the meaning of “include” as used in the Trust Deed, the “Expressio Unius Est Exclusio Alterius” rule must be adopted and the Court placing reliance on the Supreme Court case of  PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS V. MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC) 43, held that the express mention of basic salary, lunch subsidy and housing and transport allowances in the Trust Deed meant that other items – basic salary and all allowances as contended by the Claimant must be excluded.

Furthermore, that from the evidence before this Court there is no one who has ever been paid gratuity by the Defendant on the parameters (basic salary and all allowances) alleged by the Claimants. This in fact, clearly supports the case of the Defendant that it pays gratuity on the parameters listed in paragraph 20 of the Trust Deed - basic salary, lunch subsidy and housing and transport allowances and as interpreted by the Defendant’s Circular No. 18/97 [Exhibit Idiaghe 3 page 1-7] as follows: “Gratuity -Immediate payment of gratuity based on “total emoluments” i.e Salary, Housing Allowance, Transport Allowance and Lunch Subsidy at the time of disengagement”.

Thus, assuming but without conceding that the Defendant’s Circular No. 18/97 [Exhibit Idiaghe 3 page 1-7] did not clearly define “total emoluments”, or that the said circular is to be excluded, the Claimants case would still fail, because the parameters mentioned in paragraph 20 of the Trust Deed as relied on by the Claimants clearly lists - basic salary, lunch subsidy and housing and transport allowances in computing gratuity but did not mention “basic salary and all allowances” as claimed by the Claimants, and by the authority of the Supreme Court in PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS V. MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC) 43 as applied by this Court in the similar case of Chief Oviakporie Owho vs Union Bank Plc - Suit No. NICN/LA/03/2021, this Court cannot go outside the items (basic salary, lunch subsidy and housing and transport allowances) listed in paragraph 20 of the Trust Deed to grant the claims of the Claimant using items (“basic salary and all allowances”) clearly not provided in the Trust Deed or which the cases (NICN/LA/806/2016 and NICN/LA/160/2017) relied on by the Claimants clearly do not support. 

On whether the Court can rely on the computation in TABLE II & TABLE III of the Claimants to grant alleged short fall in payment of gratuity, Counsel submitted that the Court cannot rely on the computation in TABLE II & TABLE III to grant an alleged short fall in gratuity payment by the Defendant, that to compute gratuity, the years of service of each of the Claimants must be considered, and the years of service of each of the Claimant cannot be known except by the letters of employment of each of the Claimant which will reveal specifically when each of them joined the Defendant.

Furthermore, that the Trust Deed [Exhibit Barnabas 4 Page 1-19] relied on by the Claimants makes years of service a vital element to be considered in computing gratuity payment. Paragraph 18 of Exhibit Barnabas 4 Page 1-19 provides that: “The scale of amount receivable by a member of the scheme shall be based on appropriate percentage of his/her annual terminal total emolument as set out in the attached schedule”; whereas the schedule shows the percentage to be employed in computing gratuity depends on the years of service of each of the Claimants and that it is noted that although the Claimants in TABLE II of their pleadings stated the alleged years of service of each of the Claimants, there is nothing to show how they arrived at the years of service so stated in TABLE II. The Claimants did not tender the letters of employment of each of the Claimant to aid the Court in determining when each Claimant joined the Defendant so as to accurately compute the years of service from the date of joining to the date of exit. Hence the figures stated in TABLE II and TABLE III are simply a product of speculation and conjecture. The sums claimed are baseless and speculative, the law is clear that a judgment of Court is not based on speculation, see AWAYE MOTORS CO. LTD, V. ADEWUNMI (1993) 5 NWLR (PT. 292) 236 P.243, PARAS. G-H, TAKORI V. MATAWALLE (2020) 17 NWLR (PT. 1752) 165 P. 185, PARAS. B-C, UDOM V. UMANA (NO.1) (2016) 12 NWLR (PT. 1526) 179 AKINTOLA V. STABILINI (1972) 2 S.C. 130 AND AGHOLOR V. A.-G., BENDEL STATE (1990) 6 NWLR(PT. 155) 141.

Counsel submitted that there is no evidence before the Court to prove that each of the Claimants spent the number of years they claimed to have spent in the service of the Defendant. There is no single employment contract of any of the Claimants before this Court to establish their individual years of services in the Defendant even though CW1 admitted that each of the claimants were issued letters of employment by the Defendant, the Claimants, having alleged to have been in the service of the Claimant for the number of years they speculated in TABLE II which gave rise to the sums claimed in TABLE III, the Claimants must with cogent evidence prove the figures stated in the TABLES to be entitled to judgment. The law is that whoever asserts a thing must prove it, see SHARING CROSS EDUCATIONAL SERVICES LTD V. UMARU ADAMU ENTERPRISES LTD & ORS (2020) LPELR-49567(SC) P 7-8 PARAS. F -A and Section 131 (1) of the Evidence Act, 2011.

On whether Claimants can succeed in the claims for alleged already earned income, Counsel submitted that the Claimants’ relief for alleged deductions from already earned income must fail as there is no proof before this Court that the Defendant deducted those figures claimed in TABLE IV from incomes already earned by the Claimants and also the Claimants failed to lead any evidence as to how they arrived at the various sums claimed in the total column of TABLE IV against each of the names of the Claimants, that the Defendant in its defence had stated that it did not deduct earned income but unearned income, hence the Claimants must therefore not only prove that earned income was deducted, but they must also prove that the figures stated in their TABLE IV particularly the sum stated in the “total” column in the said TABLE IV which they alleged to be the total ‘earned income’ debited from them must be proved before this Court, the Claimants must prove how they arrived at each of the figures they claim before this Court as stated by them in the total column in TABLE IV.

For example, the CW1 (who is the 2^nd Claimant) claims the sum of N5,611,036.00 as stated in the total column of TABLE IV as what was deducted from his earned allowance, but there is nothing before this Court to show that the Defendant deducted the sum of N5,611,036.00 from the 2^nd Claimant. In fact, the letters dated 2^nd July and 14^th December 2010 [part of the bundle of documents marked as Exhibit Barnabas 1- page 1-54 [Exit Letters] do not show that the Defendant deducted the sum of N5,611,036.00 from the 2^nd Claimant’s earned income. There is no trace of the sum of N5,611,036.00 in any of the letters dated 2^nd July and 14^th December 2010 and the above argument applies to all the Claimants, the sums stated in the total column of TABLE IV against the name of each of the Claimants are not contained in any of the Claimants’ Exhibit Barnabas 1- page 1-54 which are the letters of termination, resignation, voluntary retirement etc of the Claimants. Thus, the sum stated in the total column in TABLE IV sought before this Court are not only speculative and spurious, there is no mathematical formula to show that the sums stated under the various column –( the columns are: furniture, housing, leave, passage, wardrobe, education and vehicle) of TABLE IV is equal to the sum stated in the total column in the said TABLE IV. The Claimants did not also give any evidence, written or oral as to how they came about the sums allegedly claim in the total column of TABLE IV.

Counsel relying on the cases of AWAYE MOTORS CO. LTD, V. ADEWUNMI (supra) and TAKORI V. MATAWALLE (supra) argued that this Court cannot grant relief in TABLE IV based on conjectures and speculations.

On whether the 9^th Claimant is entitled to payment of 150% of her basic, housing, lunch and transport allowances as severance pay, Counsel submitted that the Claimants cannot approbate and reprobate at the same time. See EGBO V. CANDID (2023) 16 NWLR (PT. 1911) 417 P. 433, PARAS. D-E. that in paragraphs 30-31 of CW1 statement on oath, the Claimants claimed that the 9^th Claimant is entitled to payment of 150% of her severance package in line with the agreement of 10^th September 2013 between the Defendant and ASSBIFI, NUBIFE and that the 9^th Claimant was a member of ASSBIFI, NUBIFE, but turned around in paragraph 7 of CW1 additional statement on oath to challenge the validity of the agreement of 10^th September 2013, the 9^th Claimant placed reliance on the Collective Agreement of ASSBIFI, NUBIFE to allege her entitlement to the payment of 150% of her basic, housing, lunch and transport allowances as severance pay. The agreement made between ASSBIFI, NUBIFE and the Defendant are collective agreements and the law is settled that collective agreements are not enforceable and/or cannot ignite the jurisdiction of the Court except same is incorporated into the service contract agreement/contract of employment.

That in U.B.N. Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 The Court held that “Collective agreements, except where they have been adopted as forming part at the terms of employment, are not intended to give, or capable of giving, individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest nor are they meant to supplant or even supplement their contract of service. (P.298, paras. B-C)Per AKINTAN, J.C.A. at page 304, paras. C-E. "The learned trial Judge was also in error to have applied the provisions of the booklet (Exh.13) titled ‘Recognition and Procedural Agreement and Main Collective Agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions and the Association of Senior Staff of Banks Insurance and Financial Institutions.”

And aside from the fact that the said paragraphs 23-31 of the Witness Statement on Oath of CW1 is a complete hearsay and ought to be discountenanced by this Court, as there is nowhere in the entire evidence of CW 1 wherein the CW1 stated how he got to know the facts contained in paragraphs 23 -31 of his statement on oath. The Claimants failed to show by evidence that the said collective agreement was incorporated into the employment contract of the 9^th Claimant to imbue on this Court the jurisdiction to even consider the claim as it relates to the 9^th Claimant not to talk of granting it. See also UNITY BANK PLC V. OWIE (2011) 5 NWLR (PT. 1240) 273 P. 291, PARAS. B-C, ABALOGU V. S.P.D.C. LTD. (2003) 13 NWLR (PT. 837) 308, P. 337, PARAS. D-E; UBN PLC V. SOARES (2012) LPELR-8018(CA) 15 - 18 PARAS A – D; CHUKWUMAH V. SHELL DEVELOPMENT COMPANY OF NIGERIA LTD. (1993) 4 NWLR (PT. 289) 512 AT 543 – 544 AND AREWA TEXTILES PLC V. SAMUEL & ORS (2013) LPELR-23507(CA) 15 - 16 PARAS B – C.

Counsel submitted that the basis of the 9^th Claimant seeking the said payment of 150% severance pay is simply because he left the employment of the Defendant in April 2014 when Memorandum of Understanding between the Defendant and ASSBIFI & NUBIFIE was still in force. Notwithstanding that the 9^th Claimant’s termination did not follow any of the conditions in the said Memorandum of Understanding, for instance, for the 9^th Claimant to benefit from Memorandum of Understanding amongst other conditions in the said Memorandum of Understanding, the 9^th Claimant’s termination letter shall bear “disengagement” [see clause 13 of Memorandum of Understanding]; the 9^th Claimant is to receive “2 months’ salary in lieu of disengagement” [see clause 3 of Memorandum of Understanding]. However, the 9^th Claimants termination letter dated 1^st April 2014 bears “letter of termination of appointment” contrary to clause 13 of Memorandum of Understanding. While she received one month’s salary in lieu of notice as against 2 months’ salary as contained in clause 3 of Memorandum of Understanding, there is no evidence that the Memorandum of Understanding was incorporated into the 9^th Claimant’s letter of employment to qualify her to enforce or benefit from Memorandum of Understanding. In fact, the Claimant did not even tender the 9^th Claimant’s letter of employment from which the Court can infer the incorporation of the Memorandum of Understanding into the 9^th Claimant’s contract of employment.

On whether the 1^st, 5^th and 16^th Claimants being deceased can maintain this action against the Defendant, Counsel submitted that at the course of trial, it was revealed by the testimony of the CW1 that 1^st, 5^th and 16^th Claimants were deceased, hence this Court must dismiss this action in respect of the 1^st, 5^th and 16^th Claimants and/or strike-out the names of the 1^st, 5^th and 16^th Claimants as they have lost their juristic personality as the law is that a dead person ceases to have any legal personality from the moment of his death and as such he can neither sue nor be sued either personally or in a representative capacity, see BINTUMI V. FANTAMI (1998) 13 NWLR (PT. 581) 264 P. 271, PARA. A, WHYTE V. JACK (1996) 2 NWLR (PT. 431) 407 P. 422, PARA. C, A and ISA V. ADAMA & ORS (2024) LPELR-62279(CA) 21 - 22 PARAS F – F the Court held that the death of one or more of the parties does not necessarily make the proceedings invalid but that the court can no longer make any order against or in favour of the deceased parties, although the suit may continue in respect of the other surviving parties. Thus whilst the whole Suit or the proceedings in the Suit has not become defective, as supported by the case of ISA V. ADAMA & ORS (Supra) and Order 27 Rules (1), (2) and (3) of the National Industrial Court (Civil Procedure) Rules 2017, this Court has no jurisdiction to grant reliefs in favour of persons who to the knowledge of the Court have ceased to be juristic persons capable of igniting the jurisdiction of this Court. See also OLUFEAGBA & ORS V. ABDUR-RAHEEM & ORS (2009) LPELR-2613(SC) PP 11 - 12 PARAS E – D; IN WAMI & ORS V. OGBONDAMATI & ORS (2016) LPELR-45797(CA) P. 23 PARAS. B-D.

4.

CLAIMANTS’ ARGUMENT.

The Claimants final address was filed on the 16^th June 2025 and Claimants Counsel raised the following issues for the determination of this Honorable Court.

1. Whether this suit is statute barred?
2. Whether the Claimants are entitled to their reliefs in this suit:

1. An order compelling the Defendant Bank to pay the Claimants the shortfall in their gratuities entitlements as per paragraph 13, Table II & III of the Amended statement of facts;
2. An order of this Honorable Court compelling the Defendant Bank to refund already earned income deducted from the gratuities of the Claimants;
3. An order for the payment of interest at 20% compounded annually on the gratuity shortfall and earned income deducted from the Claimants` Gratuities;
4. An Order of this Honourable Court for the payment of ?3,501,000.00 being 150% exit percentage to the 9^th Claimant;
5. Cost in the sum of ?1, 000, 000. 00.

Arguing issue one, Counsel submitted that the Defendant in paragraph 5.2 to 5.19 of the Final Address argued that the Claimants’ action is statute barred and referred to the cases of Woherem V. Emereuwa & ORS (2004) LPELR – 3500 (SC) PP 15-15 Paras E-F, Abdullahi V. Loko 7 Ors (2022) LPELR – 57578 (SC) PP6, Para D, Michael Idachaba 7 Ors V. University of Agriculture, Makurdi 7 4Ors (2021) LPELR – 53081 (SC), Abubakhar Abdulraham V. NNPC (2020) LPELR – 55519 (SC), Dr. Moses U. Anolam V. The Federal University of Technology Owerri (FUTO) & Ors LPELR – 8002> (SC) at 22-25 and submitted that the Claimants ‘action commenced after 6 years when the cause of action arose is statute barred. The Defendant in paragraph 5.10 of her Final Address submitted that the Claimants cannot rely on paragraph 20 of their witness statement to state that their cause of action arose in 2020 by virtue of the National Industrial Court of Nigeria decision in Suit No: NICN/LA/806/2016 and NICN/LA/160/2017. My Lord, the Defendant cannot with a wave of hand dismiss the Claimants’ reliance on the above judgments.

The Defendant in paragraph 12 of her Amended statement of Defense was evasive and the averment in paragraph 20 of the Claimants` statement of Defense is deemed admitted, that the rule of travase is that in the law of pleading a Defendant who does not admit any fact in the plaintiff’s pleadings must specifically deny same. General or evasive denial does not amount to a denial. To constitute an effective and sufficient denial of an averment in the Statement of Claim or petition the statement of Claim or petition, the denial must be apt, precise, succinct, full and not evasive rigmarole, vague and bogus. See EL – Tijani V. Saidu (1993) 1 NWLR (PT. 268) 246. 

Also, the Defendant`s submission in paragraph 5.10 of her Final Address that the Claimants cannot rely on paragraph 20 of their witness statement on oath to state that their cause of action arose in 2020 by virtue of the decision of this Court in suit No: NICN/LA/806/2016 and NICN/LA/160/2017 is therefore not sustainable. The Defendant in paragraph 5.11, 5.12, and 5.13 of her Final Address referred to the Judgment of Hon. Justice (Prof.) Elizabeth A. Oji in suit No: NICN/LA/70/2024 the judgment which was delivered on 26<sup>th</sup> February, 2025, Mrs. Susannah Abiola Orekoya V. Union Bank of Nigeria Plc. Suit No. NICN/LA/209/2021 and submitted that the instant suit is statute barred, that the Defendant failed to take into account that the course of action in the Adepoju`s case (supra) could not have arisen between 2006 and 2008 when they exited from the Defendant`s employment in the face of the disputed accrued Rights which was transferred to their Retirement savings accounts in 2015 for which the Appeal Court Ibadan Division in Augustine Onu & 202 Ors. V. Union Bank Appeal No: Ca/1B/343/2022 the judgment delivered on 21^st March, 2024 wherein the Appeal Court Ibadan Division held that the respondent short paid the Claimants in their accrued rights, entitlements. The Judge held that Judgment did not determine the question before her whereas the question before the trial judge was wrong computation of the accrued Rights of the Claimants and wrong computation of their gratuities. The trial Judge in paragraph 19 held: 

“….. I find that the Claimants who accepted their gratuities and Pension in 2006 (18 years ago) bonafide, and appointed the funds, cannot now sue the Defendant for a perceived short fall…..” 

The National Industrial Court of Nigeria in a judgment delivered on 20^th March 2025 per Hon. Justice Ikechi Gerald Nweneka in suit No. NICN/LA/71/2024 in paragraph 13 and 14 of the ruling held: 

“…. Therefore, the question is could the Claimants have effectively commenced this suit for wrongful computation of the gratuity and Pension between 2002 and 010 when they exited the Defendants or in 2015 when their pension was transferred to their Retirement savings Account? I do not think so. As of that date, they were unaware that their accrued pension and gratuity were wrongfully computed. Put differently all the facts that the Claimants need to prove to succeed in an action against the Defendant where not complete. The Claimants stated in paragraph 7 of the counter affidavit that they became aware of the Defendant`s breach after the decisions of the Court in 2020 in C.E. Okeke & Ors V. Union Bank Of Nigeria PLC (supra). See also paragraph 26 and 27 of the statements of facts. The Defendant did not controvert this fact, and the Court is bound to accept it as correct and act on it. Therefore, I am of the firm view that the cause of action arose in 2020 when the Claimants became aware of the wrongful computation. In this circumstance, I hold that this suit is not statute barred. See Adeosun V. Afolabi (2018) LPELR – 46115 (CA) 18 – 28 -14. Assuming I am wrong, learned counsel for the Claimants argued that terminal benefits are not affected by the limitation law. Learned counsel for Defendant did not respond to this submission, and he is deemed to concede the issue. Section 210 (1) of the 1999 constitution provides that “any benefit to which a person is entitled accordance with or under such law as is referred to in subsection (1) of this section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under law including the code of conduct”. 

Thus, a citizen`s right to pension and gratuity cannot be withheld under any circumstance, despite the status of his employment. This provision has been interpreted in several cases. See UGBECHE V. ABDULRAHEEM V. NNPC. (2021) 12 NWLR (PT. 1791) 405 AT 421-422, CENTRAL BANK OF NIGERIA V. AMAO & ORS (2010) 15 NWLR (PT. 1219) 271. 

Arguing issue two, Counsel submitted that this is a suit brought by the Claimants in a representative Capacity.

These are actions or suits instituted and /or conducted by one or more plaintiffs or Defendants for and on behalf of other parties (Plaintiffs or Defendant’s) to their suit Atanda V. Olarenwaju (1988) 4 NWLR (pt.89) 394.

The Defendant in paragraph 5.21 to 5.29 of the Final Address submitted that EXHIBIT Barnabas 1 page 1-54-EXIT letters- should not be accorded any probative value because proper foundation was never laid before the documents were tendered, the submission of the Defendant amount to inversion of facts, the Claimants` counsel effectively laid proper foundation before all the documents were tendered and admitted in evidence. The resort to section 83 of the Evidence Act, 2011 and the case of Folorunsho & Anor V. Ige & Ors (2015) LPELR – 41680 (CA) is calculated to mislead this Honourable Court and subvert the counsel of Justice.

Assuming but without conceding that proper foundation was not laid, section 12(2) of the National Industrial Court Act 2006 allows the Court to depart from the Evidence Act in the interest of justice. The above provision was upheld by the Court of Appeal, Ilorin Division in Appeal No. CA/IL/20/2021 – Mr. Victor Adebogu V. United Bank of Africa in a judgment delivered by his Lordship Hon. Justice Kenneth Ikechukwu Amadi, JCA on 14^th April, 2020 held that the National Industrial Court pursuant to section 12(2) of the NICN ACT 2006 can depart from the Evidence Act, in view of the foregoing, this Court is urged to discountenance the objection of the Defendant to the admission of Exhibit Barnabas page 1-54. The Defendant in paragraph 5.34 to 5.36 of the Final Address argued that when a party seeks declaratory relief, he must prove same by cogent evidence and succeed on the strength of his own case and not on the weakness of the Defendants` case and referred to the cases of Oyewusi V. Olagbami (2018) 14 NWLR (pt. 1639) 297 @ 297 @ 317 para. C-D, Dumez Nig. LTD. V. Nwakhoba (2008) 18 NWLR (pt. 1119) 361, Bello V. Emeka (1981) 1 SC (Report) 63, Ilori V. Ishola (2018) LPELR – 44063, Okoye. V. Nwankwo (2014) 15 NWLR (pt. 14.9) 93, Egwamwense v. Amaghezemwen (1993) 9 NWLR (pt. 315) 1.

Counsel submitted that the Claimants effectively laid before this Honourable Court evidence in support of their Claims which have not been displaced by the Defendant. The Defendant in paragraph 5.49, 5.42 argued that total emolument was never defined in suit Nos NICN/LA/816/2016, NICN/LA/160/2017, the Claimants in suit No NICN/LA/160/2017 – C.E. Okeke & Ors V. Union Bank of Nigeria Plc. The judgment delivered on June 30, 2020 by Hon. Justice Paul Bassi particularized their Claims in para. 7, 10, 11 & 12 as follows: The Claimants averred that since their dismissal was pronounced wrongful, each of the Claimant is entitled to gratuity in line with paragraph 18 page 15 of the Defendants Bank Pension Trust Deed.

Counsel submitted that the 1^st Claimant, Mr. C.E. Okeke avers that he joined the employment of the Defendant on 31^st of March, 1993 and his salaries and allowances as at 2009 for the purpose of computing his gratuity are as follows:

Basic Salary……… ?2,244,000

Transportation ………?910,000.00

Housing…………….. ?1,900,00.00

Lunch ……………? 350,000.00

Utility………….. ?380,000.00

Tea…………….. ?140,000.00’

Furniture…………. ?450,000.00

Education………. ?300,000.00

W/Wardrobe ………….?280,000.00

Domestic Staff…………?460,000.00

Entertainment ………….?150,000.00

Passage ……………….. ?590.000

Club……………….…..?150,000.00

13^th Month ………… ?157,000.00

Leave pay……….. ?359,040.00                          

Total …           N8, 850, 790 @ 185%  N16, 373,961.50          

That the second Claimant joined the employment of the Defendant on 20^th March, 1085 and his salaries and allowances of the purpose of computing his gratuity are:

Basic salary                   ?1,200,000

Transportation                        ?460,000

Housing                                  ?900,000

Lunch                                    ?240,000

Utility                                  ?140,000

Tea                                       ?80,000

Furniture                             ?230,000

Education                           ?180,000

Wardrobe                           ?140,000

Domestic staff                   ?200,000

Entertainment                     ?60,000

Passage                               ?330,000

13^th Month                          ?100,000

Leave pay                           ?192,000

 TOTAL                              4,452,000 @ 255 Gratuity = ?11,352,000.00

The (4^th sic) 3^rd Claimant joined the employment of the Defendant on 22^nd August, 1990 and exited on the 30^th April, 2009. His salary and allowances for purpose of computing his gratuity are set down below:

Basic Salary………………….. ?810,000

Transportation…………………..?330,000

Housing ………………………..?650,000

Lunch………………………. ?200,000

Utility ………….……………?93,650

Tea……………………….… ?60,000

Furniture …………………….?160,000

Education……………………..?100,000

Wardrobe……………………...?90,000

Domestic Staff……..…………?80,000

Entertainment ……………………?50,000

Passage ………………….?300,000

13^th Month…………………?67,500

Leave pay…………………..?128,600

TOTAL………………….....?3,120,750 x 205/100 = ?6,397,537.50

Counsel submitted that the Defendant in paragraph 6, 7, 11, 12. 13 and 14 of her Statement of Defence was very evasive and the argument of the Defendant in paragraph 5.39, 5.40, 5.41, 5.42 that the judgment did not define what constitute total emolument amount to inversion of facts as what constitute total emolument was well defined and particularized in paragraph 7, 10, 11 and 12 and pronounced upon by his lordship Hon. Justice. Bassi in para. G page. 18 of the Judgment in suit No NICN/LA/160/2017 delivered on 30^th June, 2020.

Also that the Claimant in suit No. NICN/LA/806/2016, Mr. Olusegun Jonah V. Union Bank of Nigeria particularized his Claims in paragraph 44, 45, 46, 50 and 52.

That the Defendants averments in paragraph 40(1) (11) (v) (vi)  of her consequential Amended statement of Defense filed on 13^th July, 2017 were countered by the Claimant in paragraph 31 to 34 of his reply to the consequential Amended statement of Defense, that the Claimant particularized his total emolument in paragraph 41 of the further Amended statement of facts and computed his gratuity entitlement in para. 46 (a) of the further Amended statement of facts which was never controverted by the Defendant. Consequently, his Lordship Hon. Justice R.H Gwaudu at page 14 para. of the Judgment order payment of the Claimant`s gratuity shortfall in the sum of ?15,064,838.03. The submission in paragraph 5.42, 5.43 & 5.44 of the Defendant`s Final Address that there is no proof of the averment in paragraph 20 of the Claimants` witness statement on oath is not supported by any evidence is without foundation is judgment of Courts are not evidence. The CTC of the Judgments and statements of facts in suits No’s NICN/LA/160/2017.

Arguing further, Counsel submitted that the case of Ovuakporie Owho V. Union Bank PLC is distinguishable from the instant suit in that the Court in her Judgment in suit NICN/LA/160/2017 – C.E. Okeke & 2 Ors V. Union Bank of Nigeria PLC at page 18 paragraph G held that the Claimants are entitled to the payment of their gratuity as set out in paragraphs 10, 11 and 12 of the statement of facts. The aforesaid computation was based on the basic salary and all allowances.

The Claimant in paragraph 5.66 & 5.59 of her final address submitted that total emolument is as defined in Defendant`s circular No. 18/97 Exhibit Idiaghe page 1-7. The Defendant`s circular No 18/97 cannot under any stretch of imagination vary the express provisions of the Trust Deed 1996 which provides for the manner of its amendment in paragraph 13 page 5 under sub-head – Amendment of Trust Deed and that there is no approval of any kind to the amendment of the Trust Deed 1996 approved by the Joint tax board before the Honourable Court.

Also, that the Defendant in paragraph 5.61 of her written Address sought to rely on paragraph 16 of the Trust Deed that the directors of the Defendant Bank via circular 18/97 interpreted total emolument to mean: basic salary, Housing allowance, Transport allowance, and utility allowance and in paragraph 5.63, 5.64, 5.65. 5.66, 5.67 and 5.68 of her Final Address sought to rely on the Judgment of the National Industrial Court of Nigeria delivered on 4^th October, 2024 in suit No. NICN/LA/03/2021 by his Lordship Hon Justice (Prof) Elizabeth Oji in Chief Ovuakporie Owho V. Union Bank of Nigeria PLC that held that total emolument is restricted to basic salary, housing, transport and lunch allowance, the case of Ovuakporie V. Union Bank of Nigeria Plc. is distinguishable from the instant suit. In Ovuakporie V. Union Bank of Nigeria PLC. the trial Judge relied on Defendant`s Circular No 18/97 EXH. Idiaghe 3 page 1-7 which expired on 31^st January 1998. The trial Judge failed to take into account the provisions of the Trust Deed 1996 which reads: 

“in pursuance of which will result in the return of any portion of the fund to the Bank.

Of which there is no approval of any kind to the Trust Deed 1996 approved by the Joint tax board.

Again, that the Defendant in paragraph 5.61 of her written address sought to rely on paragraph 16 of the Trust Deed that the directors of the Defendant Bank via circular 18/97 interpreted total emolument to mean: basic salary, housing allowance, transport allowance and utility allowance and in paragraph 5.63, 5.64, 5.65, 5.66, 5.67 and 5.68 of her final address sought to rely on the Judgment of the National Industrial Court of Nigeria delivered on 4^th October, 2024 in suit No NICN/LA/03/2021 by his Lordship Hon. Justice (Prof) Elizabeth Oji in Chief Ovuakporie Owho V. Union Bank of Nigeria PLC that held that total emolument is restricted to basic salary, housing, transport and lunch allowance, the case of Ovuakporie V. Union Bank of Nigeria Plc. is distinguishable from the instant suit. In Ovuakporie V. Union Bank of Nigeria Plc the trial Judge relied on Defendant`s circular No 18/97 EXH which expired on 31^st January, 1998. The trial judge failed to take into account paragraph A of circular No 18/97 which reads: 

“in pursuance of Management`s commitment and desire to evolves means of enhancing the well-being of staff, even after retirement……”

That it is clear that the circular which was signed by L.M LOHOR, Deputy General Manager (Human Resource) was not a Board resolution. The Paragraph (c) of circular No 18/97 did not indicate anywhere that it was interpreting paragraph 20 of the 1996 Trust Deed. In the Ovuakporie V. Union Bank of Nigeria PLC (Supra) the Court concentrated on only the word “include” used in paragraph 20 of the Trust Deed 1996 without taking into account the use of the word “and “twice after Basic salary thus:“…. Shall include Basic Salary, lunch subsidiary, and Housing and Transport Allowances. The implication of the use of “and” twice in enumerating the classes of income that constitute total emolument is that the list is not exhaustive.

The Defense sole witness- Francis Idiagbe under cross examination could not tell the Court that there was a board resolution and any paragraph which allowed the board to unilaterally amend the trust deed.

Arguing further, Counsel submitted that the Defendant in paragraph 5.69 to 5.76 of the final Address of her written Address submitted that this Honourable Court should not rely on table I & II to grant the Claimants gratuities shortfall. The Defendant in paragraph 5.70 of the written Address argued that to compute gratuity, the years of service of each of the Claimant must be considered and can only be known from the Claimants employment letters. The Defendant also referred to EXHIBIT Barnabas 4 page 1-19 and submitted that the Trust Deed paragraph 18 of EXHIBIT Barnabas 4 page 1-19 indicate that length of service is a factor in the computation of Claimants` gratuities entitlements. The submission in paragraph 5.71 of the Final Address that paragraph 12 of DWI statement on oath is uncontradicted is borne out of mischief calculated to mislead this Honourable Court. The Claimants’ witness in paragraph 3, 4 and particularly in the additional witness statement on oath deposed to on 5/9/2022 controverted paragraph 12 of DWI statement on oath, the end of service statements issued to each Claimant is shown in EXHIBIT Barnabas 1 – page 1- 54.

The applicable % of each Claimants` gratuities entitlement is shown in the exit statement. The statement that each claimants’ age at point of exit was not shown is therefore unfounded.

On refund of already earned income deducted from claimant terminal benefits, Counsel submitted that the Claimants are entitled to refund of already earned income deducted from their terminal benefits, that the Defendant in paragraph 5.78 to 5.84 of the Final Written Address submitted that the relief for deductions of already earned income pleaded in paragraph 21 of the Amended statement of facts and table IV is not supported by evidence and particularly referred to the sum of ?5,611,036.00 deducted from the 2^nd Claimant. My Lord, EXHIBIT Barnabas 1 page 7 end of service financial statements under SUB-Head. “Outstanding liabilities show deductions of furniture, housing, leave, passage, wardrobe and education allowance deducted” the gratuities of the Claimants. The end of service statements for the 2^nd Claimant indicate deductions from his gratuities, the Claimants in paragraph 21 of the Amended statement of facts and table (iv) avers that upon the termination of their employment, the Defendant deducted various sums computed in table iv from their gratuities. The Defendant in paragraph 13, 14, 15 and 16 of her Amended statement of Defense did not controvert the computation of the figures in table iv and averred in para. 13, 14, 15 & 16 that the deductions were annual payments made to the Claimants for which the unearned portion have to be deducted upon the exit of the Claimants. The Defendant particularly averred in paragraph 15 of the Amended statement of Defense that the deduction did not violate any known law, rule or regulation in Nigeria. It is trite law that facts not controverted are deemed admitted.

Counsel submitted that the Claimants in paragraph 16 of the additional witness statement on oath deposed to on 5^th September, 2022 controverted the averment in paragraph 16 of the Defendant`s statement on oath, the Defendant did not present any evidence in support of the deductions of the already earned income from the Claimants terminal benefits and we pray his Lordship to hold that the deductions are unlawful and liable to be refunded to the Claimants.

On payment of 150% exit benefit to the 9^th claimant, Counsel submitted that the 9^th Claimant in paragraph 25 of the Amended statement of facts particularized her Claim to the 150% exit benefit thus: “The 9^th Claimant states that her 150% exit benefit pursuant to the Agreement of September, 2013 with the Unions and the Defendant is computed this: ?2,334, 000 x 150/100= ?3,501,000.00.

The Defendant in paragraph 5.85 of the Final Written Address submitted that the Claimant cannot approbate and reprobate at the same time and referred to the case of EGBO V. CANDID (2023) 16 NWLR (PT. 1911) 417 P.433 PARAS D-E and argued that the Claimants in paras 30-31 of CWI statement on oath, the Claimants claimed that the 9^th Claimant is entitled to payment of 150% severance package in line with the agreement of 10^th September 2013 between ASSBIFI, NUBIFIE and the Defendant but in paragraph 7 of the CWI additional statement on oath challenged the validity of the agreement of 10^th September, 2013, paragraph 11 of the Claimants Reply to Defendant`s Amended Statement of Defense which is direct reply to paragraph 7 of the Defendant`s Amended Statement of Defense states: “The Claimant denies paragraph 7 of the statement of Defense and states that the purported Agreement of September, 10, 2013 between the Defendant and the employee Union I.E. ASSIBIFI and NUBIFIE cannot amend the 1996 Trust Deed nor abridge their rights under the Trust Deed” see also paragraph 6, 8, 9 and 10 of the additional witness statement of oath, the Defendant in paragraph 7 of CWI additional statement on oath did not challenge the validity of the Agreement of 10^th September, 2013 but challenged the use of the Agreement of 10^th September, 2013 for the purpose of interpreting what constitute total emolument. The Claimants in paragraph 10 of the additional witness statement on oath told the Court that the contract of employment was never regulated by the Defendant`s expired circular. The deposition in paragraph & 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 18 relates to the Claimant gratuities Claims and not the 9<sup>th</sup> Claimant`s Claim to 150% exit cash Benefits. The 9^th Claimant`s Claim to 150% exit cash benefit is supported by the Memorandum of Agreement dated 10^th September, 2013 EXH Idiaghe 3 page 4.

Again, that the Defendant in paragraph 5.86 of the Final Written Address submitted that the agreement made between ASSBIFI, NUBIFIE and the Defendant are collective agreements which are collective Agreements which are not enforceable in law, the submission of the Defendant no longer represent present position of the law on collective agreements. The cases of U.B.N V. EDET (1993) 4 NWLR (PT. 287) 288, UNITY BANK PLC. V. OWIE (2011) 5 NWLR (PT. 1240) 273 P.291, PARAS B-C, ABALOGU V. S.P.D.C LTD (2003) 13 NWLR (PT. 837) 308, P. 337, PARAS. D.E, U.B.N. PLC. V. SOORES (2012) LPELR – 8018 (CA) 15-18 PARAS A-D, CHUKWUMAH V. SHELL DEVELOPMENT COMPANY OF NIGERIA LTD (1993) 4 NWLR (PT. 289) 512 AT 543 – 544 AND AREWA TEXTILES PLC V. SAMUEL & ORS (2013) LPELR – 23507 (CA) 15-16 PARAS B-C are irrelevant and displaced by the Court of Appeal decision in NATIONAL UNION OF HOTEL & PERSONNEL SERVICES WORKERS (NUHPSW) (FOR THEMSELVES AND ON BEHALF OF THE NUHPSW WARRI ESCRAVES/ SWAMP & LAGOS BRANCHES) V. OUTSOURCING SERVICES LIMITED (2023) LPELR – 60683 (CA) PAGE 23 – 26. That in view of the foregoing, the submission of the Defense counsel in paragraph 5.88 of the final Written Address that paragraphs 23 – 31 of the witness statement on oath of CWI is a complete hearsay and ought to be discountenanced because the Claimants failed to show by evidence that the collective agreement was incorporated into the employment contract of the 9^th Claimant to imbue on this Court the jurisdiction to consider the Claim of the 9^th Claimant is not sustainable. The Defendant in paragraph 5.91 of the Written Address argued that the Claimant cannot be paid the 150% simply because he left the employment of the Defendant in April 2014 when the Memorandum between the Defendant and ASSBIFI & NUBIFIE was still in force. The argument of the Defendant is not sustainable when verged against the decision of this Honourable Court in the case of Mr. Olusegun Jonah V. Union Bank of Nigeria PLC. Suit No. NICN/LA/806/2016 the judgment delivered on 6^th February, 2020 by hon. Justice R.H Gwandu Wherein the Court at page 14 paragraph B.

Again that the Defendant in paragraph 5.92 to 5.93 of her Written Address argued that the Claimant`s exit letter did not indicate disengagement” pursuant to the Memorandum of understanding but indicated “letter of termination of appointment” contrary to clause 13 of the Memorandum of understanding. The Defendant also submitted in paragraph 5.93 that the Claimant was paid one month in lieu of Notice instead of two months in lieu of Notice as provided in paragraph 3 of the memorandum of understanding and as such, her exit was not pursuant to the memorandum of understanding, the question that readily calls for asking is: Who has the responsibility to issue the letter of exit and effect payment of two months in lieu of Notice? The responsibility falls squarely on the shoulders of the Defendant. It is trite law and equity that one cannot benefit from his own wrong. Consequently, Counsel urged the court to discountenance the argument of the Defendant and grant the 9<sup>th</sup> Claimant`s relief for payment of 150% exit package pursuant to the Memorandum of Agreement dated 10^th September, 2013. 2/6/2019. The argument in paragraph 5.94 of the final Address that the 9^th Claimant’s letter of employment was not tendered to determine whether the memorandum of Agreement was incorporated into her contract of employment have been overtaken by the Court of Appeal decision in NUHPSW V. Outsourcing Services LTD. 

That the Defendant`s Handbook – EXH Barnabas 2 page 1- 65 Volume 4 page 1 under SUB-HEAD “General” provides: 

“in all matters affecting staff, attention must be paid to my current Union Agreements to which the Bank is a party. Such Agreements are binding upon the Bank, and are to be observed in the spirit as well as the letter” 

21 Volume 4 of the handbook under SUB-HEAD- 

“Contract of service” provides: “Every member of staff must sign a contract of service Agreement and is bound by the conditions thereof in addition to the provisions of the relevant collective Agreement. A copy of the signed contract should be placed in the employee`s file”.

ILO Collective Agreement Recommendation, 1951 (No. 91) Article 3(1) provides that collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Employees and workers bound by a collective agreement should not be able to include in contracts of employment stipulated contrary to those contained in the collective agreement.

On payment of post judgment interest, Counsel submitted that this Honourable Court has the power pursuant to Order 47 Rule 7 of the National Industrial Court (Civil Procedure) Rules, 2017 to award pre-judgment interest. The above position was affirmed in the Appeal Court, Lagos Division, judgment of JOHN HOLT PLC. V. MARTIN NWABUWA (unreported) Appeal No. CA/L/857/2017 delivered on 17^th July, 2020 per Ugochukwu Anthony Ogakwu, JCA at page 17 para C-D and pages 18 paragraph A-B.

DEFENDANTS REPLY ON POINTS OF LAW

In response to the submission contained in paragraphs 5.03 – 5.05 of the Claimant’s Final Written Address, wherein the Claimant submitted the argument that the Defendant was evasive in paragraph 12 of her Amended Statement of Defence and that the Claimant got to know of the definition of “total emolument” by reason of the decision of the Court in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017, paragraph 6.05 – 6.16 of the Claimant’s Final Written Address wherein the Claimant submitted that the Defendant was wrong by stating that “total emolument” was not defined in NICN/LA/816/2016 and NICN/LA/160/2017.

Counsel submitted that there is nothing evasive about paragraph 12 of the Defendant’s Amended Statement of Defence. The facts remain that the Claimant did not present the facts of the case in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017, did not tender the judgments for the court to glean whether the Defendant’s defence in this instant Suit is same as the Defence in the said Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017.

Furthermore, that the Claimant who alleges that they got to know of the definition of “total emoluments” by reason of the definition of same in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017, ought to tender the said Judgments or at least reproduce the sections of the judgments in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 which defined “total emoluments” as canvassed by the Claimant.

Counsel submitted that the Claimant had filed similar actions in Suit No. NICN/LA/70/2024 between Adepoju & G.A vs UBN, relying on same judgment in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 to ground their cause of action. The Court reviewed the said judgments in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 and came to the conclusion that “total emoluments” was not defined in the said judgments, thus, the Claimant, having received their due entitlement since between the year 2010-2014 cannot turn around more than 6 years later [when their right of action has elapsed] to say that the court defined “total emoluments” in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017, therefore, they have a cause of action against the Defendant when the said judgments were not tendered, and whereas, the Court per Honourable Justice [Prof.] Elizabeth A. Oji in Suit No. NICN/LA/70/2024 between Adepoju & G.A vs UBN,  have reviewed the said judgments in Suit Nos.: NICN/LA/806/2016 and NICN/LA/160/2017 and found that “total emoluments” was not defined therein.

Counsel submitted that in an attempt to mislead this Court, the Claimant in paragraph 6.10 of their written brief reproduced what it called the judgment of Bassi J in  Suit. No. NICN/LA/160/2017, wherein the Court therein said “I consequently find that the claimants are entitled to the payment of their gratuity as set out in paragraphs 10, 11, and 12 of the Statement of facts dated 28^th day of March 2017. Relief [b] therefore succeeds; and the Defendant is hereby ordered to pay the Claimant as follows:” However, that these Claimants herein never tendered the “claimants’ statement of facts containing the said paragraphs 10, 11, and 12 referred to by Bassi J, neither was “relief [b] of the said Suit tendered in this case, in other words, this Court had no opportunity to look at the reliefs or the statement of facts in  Suit. No. NICN/LA/160/2017, to know exactly what the Court was granting therein. And this obligation can only be satisfied by cogent evidence which entails the tendering of the statement of facts and reliefs sought in Suit. No. NICN/LA/160/2017, this Court cannot speculate on what is contained in paragraphs 10, 11, and 12  of the Statement of facts and Relief [b] of Suit. No. NICN/LA/160/2017, when the said statement of fact is not before this Court. the law is that the decisions of Court is not based on speculations, we rely on Orhue v. N.E.P.A. (1998) 7 NWLR (Pt. 557) 187 P. 200, paras. C-D.

In the same vein, in response to paragraph 6.11 of the Claimant’s brief, that these Claimants also did not tender the particulars of claims of the Claimants in Suit No. NICN/LA/806/2016, thus, these Claimants herein are calling on the Court to speculate on what the particulars of claim of the Claimants in Suit No. NICN/LA/806/2016 were, despite the fact that the particulars of claim was not tendered in this suit.

Counsel argued that the Claimants argument in paragraphs 6.06-6.14 amounts to the Claimants’ counsel attempt to replace evidence with arguments. The law is that argument of counsel cannot take the place of evidence. We rely on Ogunsakin v. Ajidara (2008) 6 NWLR (Pt. 1082) 1 P. 24, para. D.

In response to paragraph 6.27 – 6.31 of the Claimant’s Final Written Address that the Claimants are entitled to the already earned income which was purportedly wrongly deducted by the Defendant, Counsel submitted that the defence of the Defendant is clear without ambiguity that the Defendant deducted funds from the Claimants, however, the Defendant stated unequivocally that what it deducted was unearned income, that the Defendant in paragraph 13 of the Amended Statement of Defence described how the payment is calculated as has been a longstanding practice of the Bank, which the Claimants were aware of during the existence of their professional relationship with the Defendant. 

In the event that the Claimants were not in acceptance of this practice, the fact that they never complained or tried to correct same during the pendency of their professional relationship with the Defendant, estops them from turning around to fight against a practice to which they had accepted. See Section 169 of the Evidence Act 2011.

That whether the funds deducted from the Claimant is earned income or unearned income does not remove the burden from the Claimant to tender documents which prove the figures as claimed by the Claimant to be the sum deducted from the Claimants.

In response to paragraph 6.33 of the Claimant’s Final Written Address that the 9^th Claimant is entitled to 150% exit benefit in accordance with the Agreement dated 10^th September 2013 between the Defendant and the employees’ Unions i.e, Association of Senior Staff of Union Banks, Insurance and Financial Institutions Employees (NUBUFIE), Counsel submitted that the Claimant in paragraph 6.38 of the Final Written Address stated that the submission by the Defendant that collective agreements are no longer enforceable in law does not represent the current position of the law on collective agreements. The Claimant cited the following cases: U.B.N V. Edet (1993) 4 NWLR (pt 287) 288, Unity Bank Plc v. Owie (2011) 5 NWLR (pt 1240) 273 P. 291, paras B-C, Abalogu V. S.P.D.C Ltd (2003) 13 NWLR (pt 837) 308, P. 37, paras.D-E, U.B.N Plc V. Soores (2012) LPELR – 8018 (CA) 15-18 paras A-D, Chukwumah V. Shell Development Company of Nigeria LTD (1993) 4 NWLR (pt. 289) 512 at 543-544 and Arewa Textiles Plc V. Samuel & Ors (2013) LPELR – 23507 (CA) 15-16 Paras B-C. However, these cases cited by the Claimants does not support the conclusion reached by the Claimant. The law remains the same that collective agreements are not enforceable except they have been adopted as forming part of the terms of employment see Adamu Mohammed Gbedu v joseph i. Itie (liquidator) (2020) 3 NWLR (Pt. 1710) 104 and that it is clear that the Claimants Counsel supplied the authorities he supplied to mislead the Court. It is well-settled law that a Counsel ought to present the law accurately to the court even where against his client. This is seen in the case of Dr. Moses U. Anolam v The Federal University of Technology, Owerri (FUTO) (2025) 5 NWLR (Pt. 1984) 651, counsel submitted that in response to the Claimants’ paragraph 6.40 that the Claimant cannot claim that because the 9^th Claimant’s employment was terminated when the Memorandum of Understanding between the Defendant and ASSBIFI & NUBIFIE was still in force that the 9^th Claimant is entitled to the provisions as contained in the said Memorandum of Understanding when there is nothing before this Court to state that the termination of the 9^th Claimant followed any of the conditions stipulated in the said Memorandum of Understanding to qualify the 9^th Claimant to benefit from the said Memorandum of Understanding, the Memorandum of Understanding between the Defendant and ASSBIFI & NUBIFIE is very clear as to those entitled to benefit from the said Memorandum of Understanding between the Defendant and ASSBIFI & NUBIFIE. These conditions have been demonstrated by the Defendant in its Final Written Address, paragraphs 5.91-594 thereof and also in paragraph 21[c] of the Defendants’ Amended Statement of Defence. Therefore, until the 9^th Claimant leads evidence which situates him into the conditions listed in the said Memorandum of Understanding, the 9^th Claimant cannot claim under the said Memorandum of Understanding.

It is instructive to reiterate that the 9^th Claimant was not terminated in line with the Memorandum of Understanding but was terminated in line with his contract of employment with salary of in lieu of notice duly paid to the 9^th Claimant without protest.

COURT’S DECISION.

I have gone through the processes filed, read the submissions of Counsel and heard the testimony of witnesses brought before the Court by parties to this suit, from the issues raised by Counsel in this suit, I have taken the liberty of raising the following pertinent issues for determination-

1. Whether this action is statute barred thereby robbing this Honourable Court of the requisite jurisdiction to entertain same,
2. Whether on the preponderance of evidence the Claimants have proved the entitlements sought against the Defendant.

On the first issue whether this action is statute barred thereby robbing this Court of jurisdiction, the Claimants argue that the cause of action of their case arose after the judgment of this Honourable Court which was delivered in June 2020 while the defendant maintains that the Claimants cause of action matured when they were paid their employments were terminated and their gratuities paid.

The Court in IDRIS V. N.N.P.C. (2025) 17 NWLR (PT. 2013) 1(P. 23, PARAS. A-B) held that ‘a cause of action can only be gleaned from the writ of summons and/or statement of claim of a plaintiff, and not from the statement of defence(P. 23, para. A)’, I therefore must look at the Claimants statement of facts to determine when the cause of action in this suit arose.

It is on record that the Claimants were terminated from the employment of the Defendant between 2010 and 2014, the statement of facts does not outline the details of individual exits but their letters of termination state so, the Defendant also averred same, so the dates of exit of the Claimants is not an issue of contention, that they were paid various sums at their individual exits is also not an issue, the bone of contention in this present suit is that the Claimants found out via a judgment of this Honourable Court that they were allegedly underpaid by the Defendant and sued for the shortfall.

In paragraph 20 of the amended statement of facts, the Claimants state that they got to know that their emoluments included basic salaries and allowances from a judgment of this Court hence they believe their cause of action arose in 2020 and not at the points they exited the defendant bank.

It has been a point of controversy whether employment contracts are subject to limitation laws with the appellate Courts going back and forth on this issue, that however has been put to rest as the Supreme Court in the case of CHUKWUKA OKORONKWO VS INEC 2025) NWLR(PT. 1991) 131 held that any action commenced outside the time stipulated by the POPA is statute barred(PP 149-150) paras F-B, PP 159-157 paras H-E and Pp 159 paras C-G), this means that this Honourable Court will put the Claimants case to the determinant test accordingly.

After I took a holistic look at the Claimants case, I determined that the Claimants cause of action accrued on the dates their employments with the Defendant came to an end and they were paid their exit packages, I arrived at this decision having considered two pertinent issues-

The courts have held that equity aids the vigilant, the Claimants were thus not vigilant where they waited for another person to sue and get judgment which according to them revealed their cause of action, they should have been more vigilant, see AWONIYI V. AIYEWUMI (2025) 16 NWLR (PT. 2011) 237 (P. 273, PARAS. C-F). a cause of action cannot be suspended by way of ignorance or even illiteracy, see OLATEJU V. COMM., L.&H., KWARA STATE (2024) 17 NWLR (PT. 1968) 473 PP. 512-513, PARAS. H-A), it is only either continuous which is an exception or caught up with a limitation law, the Claimants cause of action arose when there was an enforceable act, that they were not paid in accordance with the different codes they allege

The Claimants in this instant suit have not shown the Court that they ever protested the terms on which they were employed, that they protested the terms by which they were paid, only that they were paid and have come now because someone else challenged they basis on which they were paid. This argument cannot avail the Claimants in this suit.

Based on the foregoing, I hereby hold that the Claimants cause of action in this present suit as constituted has been caught by Section 8 of the Limitation Law of Lagos State which states that actions cannot be brought after six years of the accrual of a cause of action. See NIG. AGIP EXP. LTD. V. MALABU OIL & GAS LTD. (2025) 15 NWLR (PT. 2009) 551(P. 589, PARAS. B-D).

Having held that the Claimants cause of action is statute barred, this Honourable Court therefore lacks the jurisdiction to hear and determine the issues raised therein, see ETHIOPIAN AIRLINES V. POLARIS BANK LTD(supra)(Pp. 477-478, paras. G-C) where the Court held that- ‘a successful plea of limitation law, as a shield, by an opposing party occasions two harmful effects against a claimant’s action. First, the claimant becomes disrobed of the right of action and judicial relief. In other words, it extinguishes his cause of action. Second, the court ceases to be crowned with the requisite jurisdiction to entertain his action.’ 

See also NNADUAKA V. ANUNOBI(2025) 9 NWLR (PT. 1994) 65(P. 110, PARAS. A-C) where the Court held that ‘where an action is caught by statute of limitation, the court is deprived of jurisdiction to entertain same as there would be no live dispute for the court to entertain and adjudicate over.’

I hereby dismiss the Claimants suit as constituted on the grounds that it is caught up by Section 8 of the Limitation Law of Lagos State and this Court lacks the jurisdiction to entertain same.

This is the judgment of this Honourable Court and it is entered accordingly.

 

 

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Hon. Justice R.H Gwandu

Judge