Mr. Gbenga Agbeyemi -VS- Aso Savings & Loans Bank Plc- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 24 MARCH 2022 SUIT NO. NICN/ABJ/136/2019

BETWEEN

Mr Gbenga Ogbeyemi - Claimant

AND

Aso Savings and Loans Bank Plc - Defendant

REPRESENTATION

E. E. Ekpo, with Jonathan Ogah, for the claimant.

Ifeanyichukwu Ugwu-Anichi, for the defendant.

JUDGMENT

INTRODUCTION

1. The claimant filed this suit against the defendant on 22 May 2019 vide a complaint. He put the name of the defendant as “Aso Savings and Loans Bank Plc”. On 21 October 2020, the claimant moved and obtained the order of this Court to change the said name of the defendant to “Aso Savings and Loans Plc”. The amended originating processes filed on 18 August 2020 by the claimant were accordingly deemed to be properly filed and served.

2. A look at the reliefs claimed by the claimant in the amended originating processes will show that the sum claimed as per relief (c) in the amended complaint differs from that claimed as per relief (c) in the amended statement of facts. Since the law is that claims in the statement of facts (statement of claim) supersede those in the complaint (writ of summons) where there is a conflict, — see Clifford Osuji v. Nkemjika Ekeocha [2009] LPELR-2816(SC) and Daniel Garan v. Staff Olomu [2013] LPELR-20340(SC) — the claimant as per his statement of facts is praying for the following reliefs:

A declaration that the computation of the claimant’s benefits and entitlements was prepared and processed erroneously in bad faith with prejudice intents.
An order of this Honorable court directing the defendants (sic) to do a proper computation of all the Claimants (sic) benefits and entitlements as a Senior Banking Officer (SBO) in all fairness, good conscience, in an equitable manner.
An order of this Honorable court directing the defendants (sic) to pay the claimant the sum of N19,802,733.46 (Nineteen Million, Eight Hundred And Two Thousand, Seven Hundred And Thirty-Three Naira Forty-Six Kobo) as the claimant’s benefits and entitlements.
An order of this Honorable court directing the defendants (sic) to return all the original certificates of the Claimant as received into their custody.
Damages in the sum of “N5000,000.00” (Five Million Naira) only (including General and Exemplary Damages) against the defendants (sic) for the embarrassment, inconvenience, economic hardship and pains suffered by the claimant during his retirement.
Interest on the Judgment sum at the rate of 10%.
The sum of 100,000.00 (One Hundred Thousand Naira) as the cost of the suit.

3. When this suit was filed by the claimant, the defendant, as I indicated, was sued as “Aso Savings and Loans Bank Plc”. In reaction, the defendant filed on 4 November 2019 a preliminary objection seeking that the suit be struck out on the ground that the suit involves a non-juristic person, “the 1st defendant on record” being a non-juristic person. I must point out that the preliminary objection talked of “the 1st defendant on record” even when it was only one defendant that was originally sued by the claimant. It was after the defendant’s objection was filed that the claimant applied to amend the name of the defendant to “Aso Savings and Loans Plc”. The defendant indicated that it will be opposing the claimant’s motion to amend that name of the defendant but did not file any process to that effect. The defendant was even not in court when the claimant’s motion for amendment was moved; and so the motion was granted. Like I pointed out earlier, the claimant’s amended originating processes filed on 18 August 2020 were then deemed by the Court as properly filed and served, And service on the defendant was ordered by the Court. This rendered the defendant’s preliminary objection superfluous.

4. On 9 November 2020, the defendant filed its defence processes in response to the amended originating processes filed on 18 August 2020. Part of the defence processes is the Court of Appeal Judgment of 6 February 2018 in Aso Savings and Loans Plc v. Gbenga Agbeyemi Appeal No. CA/A/350/2016 affirming the decision of this Court in Gbenga Agbeyemi v. Aso Savings & Loans Plc Suit No. NICN/ABJ/185/2013, the judgment of which was delivered on 13 May 2016. Mr Gbenga Agbeyemi had prayed this Court for an order directing the defendant to pay his salary and allowance during the period of his suspension. This Court per Lifu J ordered for the payment of the claimant’s salary and allowances as claimed and awarded cost against the defendant, which the Court of Appeal, like I indicated earlier, affirmed.

5. Trial accordingly commenced, with the claimant taking the witness box as CW. The claimant adopted his witness deposition of 22 May 2019 and tendered Exhibits C1, C2. C2(a), C3, C3(a) - (e), C4, C5, C6 and C7. The defendant indicated that he objects to the claimant’s documents tendered and would give the reasons in its final written address. CW was thereafter cross-examined by the defendant.

6. The case was accordingly adjourned for the defendant to open its case. The date adjourned for the next sitting of the Court was 10 March 2021. The Court could not sit on this adjourned date given the strike action by the judiciary staff union, JUSUN. The matter was then fixed for 23 June 2021. In this regard, the Court Registrar sent hearing notices to the parties vide text messages. The defence counsel replied to its own thus: “Ok sir. Thank you and have a good day sir”. Additionally, the bailiff’s affidavit of service of 22 June 2021 indicated that the bailiff put a call to the defence counsel on 21 June via his phone number 08037243544 informing him of the hearing of 23 June 2021. The Court ruled that this satisfied the requirement of hearing notice under the Rules of the Court and so directed that the matter to proceed as slated, which is for the defence to open its case.

7. The defence was not in Court. The claimant accordingly prayed the Court to foreclose the defendant or in the alternative award cost against the defendant as justice cannot be delayed at the whims of a party. The Court foreclosed the defendant and ordered the filling of final written addresses starting with the claimant. And the matter was adjourned for adoption of final written addresses.

8. At the next adjourned date, the defendant and its counsel as well as the claimant were in Court, but not the claimant’s counsel. The matter was accordingly adjourned, again for adoption of final written addresses.

9. For the next adjourned date, 3 November 2021, the Court could not sit. And so parties were given 13 January 2022 as the next adjourned date. It was at this adjourned date that the defendant moved its application filed on 13 September 2021 praying for inter alia leave to file additional documents and set aside the order of foreclosure and allow it to enter its defence. The Court found the defendant to have been indolent as the reasons adduced by the defendant were not convincing and so rejected the defendant’s prayers. This meant that this case was undefended. The matter accordingly proceeded for adoption of final written addresses as originally slated.

10. The claimant had filed his final written address but out of time. He filed a motion to regularize same but gave very unconvincing reasons in the affidavit in support. The defendant drew the Court’s attention to this. The Court agreed with the defendant and ruled the application to regularise the claimant’s final written address incompetent. This meant that there was no valid final written address of the claimant before the Court. In ANPP v. Dr Ahmed Mohammed Salik & ors [2010] LPELR-19773(CA), a written address filed out of time and not regularised was discountenanced by the Court of Appeal.

11. Meanwhile, the defendant did not file its final written address. And so the Court ruled that the matter should proceed to judgment, as the law is that a judgment can be written based on the pleadings and the evidence adduced. See Segun Ogunsanya v. The State [2011] LPELR-2349(SC), which held that:

The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment.

12. Judgment was accordingly set for 24 February 2022. What followed are series of motions by the defendant seeking to surreptitiously enter its defence despite being foreclosed. Each of the motions was moved and dismissed paving the way for the instant judgment, which is accordingly based on the pleadings and evidence of the claimant given that there is no valid defence of the defendant before the Court.

THE CASE BEFORE THE COURT

13. To the claimant, he had worked for the defendant from 2001 to 2018 and retired voluntarily as a Senior Banking Officer (SBO), not Banking Officer (BO), on 19 July 2018. That during his service with the defendant he was suspended indefinitely without pay. And that the defendant had demanded for the originals of his certificates as collateral for the loan ho took during his employment with the defendant, which certificates are still with the defendant even after his voluntary retirement. The certificates are NYSC certificate and HND certificate.

14. The claimant went on that contributory pension fund (statutory contributions from his employer and himself at 7.5%) from part of his entitlements including accruals like pension funds, National Health Insurance Scheme Funds (NHIS) that were deducted form his salary. Equally part of his entitlements are his Housing and Furniture allowances. That all these benefits should be released to him as of right.

15. That on 30 August 2018, he wrote a letter of compliant to the “managing direction” drawing his attention to the wrong computation of his gratuity, to which he received no reply until his lawyer wrote another letter of 26 October 2018, which reply was mischievous with intent to deny him his benefits and entitlements.

16. The claimant continued that the total outstanding due to him for effective resignation of his employment on proper computation of his entitlements and other terminal benefits including outstanding gratuity, severance and unremitted deductions as at 19 July 2018 stands at N19,802,733.46, which sum remains unpaid despite repeated demands. The claimant gave breakdown of this sum in his amended statement of facts but not in his deposition of 18 August 2020. This means that the breakdown of the sum is not supported by the ipse dixit (sworn deposition) of the claimant. The said breakdown as per paragraph 38 of the amended statement of facts is as follows:

(1) Gross salary per annum - N2,963.33

(2) Monthly gross salary at 252,078.33 x 2.5 month’s (sic) salary x 18 years [252,078.33 x 2.5 x 18] = N11,343,524.85

(3) Severance payment made up of:

(a) Annual basic salary - 700,000.00

(b) 100% of basic salary for 10 years - 700,000.00

(4) Extra-gratuity for 18 years at 90% of 700,000 = 630,000

(5) Ex-gratia - 1,260,000 + 630,000 = 1,890,000

(6) Pension made up of:

(a) Unremitted deductions (contributions to National Housing Fund, NHF) - 84,077.65

(b) Unremitted tax to Federal Inland Revenue (FIRS) - 490,420

(7) Outstanding upfront made up of total allowances at 4,834,447.3 broken down thus:

(a) Housing allowance - 3,363,092.40

(b) Furniture - 1,471,354.90

(8) Unremitted pension to:

Stanbic IBTC 7.5% - 580,131.83

Employers (sic) contribution 7.5% - 1,160,263.66

The total of all this came to 19,802,733.46

17. For emolument/entitlement, the claimant gave the breakdown thus:

(1) Pension payroll - 4,073.65

(2) Pension reimbursement - 1,060.26. If 4,073.65 is added to 1,060.26 and multiplied by 133 months, what we have is 5,133.91 x 133 months = 682, 810.03

(3) Pay As You Earn (PAYE) - “4,3400.00” x 133 months = 5,772,200.00

(4) National Housing Funds - 744.05 x 133 months = 98,958.65

(5) Payroll Housing - 15,625

(5) Reimbursable housing - 14,136.88. 15,625 + 14,136.88 = 29,761.88. 29,761.88 x 133 months = 3,958,330.04.

(6) Payroll furniture - 10,416.67

(7) Reimbursable furniture - 2,604.17. 10,416.67 + 2,604.17 = 13,020.84. 13,020.84 x 133 months =1,731,771.72

18. With his total gratuity/entitlement at 19,802,733.46, the claimant put his obligations/debt as follows:

(1) Car loan - 708,575.57

(2) Personal loan - 999,284.35

(3) Laptop - 154,623.27. 708,575.57 + 999,284.35 + 154,623.27 = 1,862,483.19

(4) In lieu of notice - 700,000/12 = 58,333.33

(5) Upfront allowance - 541,359.95

(6) Total outstanding - 2,462,176.47

19. The claimant put his net entitlement at 17,340,556.99. For the schedule of distribution, the claimant stated thus:

(1) Federal Mortgage Bank (NHF) - 84,077.65

(2) Federal Inland Revenue Service - 490,420.00

(3) Pension to Stanbic IBTC - 580,131.83 + 580,131.83 = 1,160,263.66

20. Accordingly, the grand total is 17,340,556.99 + 84,077.65 + 490,420.00 + 1,160,263.66 + 19,802,733.46, the sum the claimant prays for as per his relief (c).

21. Like I pointed out earlier, this breakdown of the monetary claims of the claimant can be found only in his pleadings, the amended statement of facts, not in his sworn deposition. All the claimant has in paragraph 36 of his deposition of 18 August 2020 is that the total outstanding due to him for effective resignation of his employment on proper computation of his entitlements and other terminal benefits including outstanding gratuity, severance and unremitted deductions as at 19 July 2018 stands at a total of N19,802,733.46, which sum remains unpaid despite repeated demands. The question accordingly remains whether there is proof from the claimant of the quantum of these sums. To be able to ascertain this, I will have to look into the exhibits tendered by the claimant.

22. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47:

A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.

23. In the instant case, the claimant’s case would accordingly be circumscribed by the reliefs he claims. A look at the reliefs claimed by the claimant will thus show that the claimant’s case comprises of his claim for: appropriate retirement benefits, which the claimant calculated as the sum of N19,802,733.46 [reliefs (a), (b) and (c)], the return of the originals of his certificates [relief (d)], and the ancillary claims of damages, interest and cost [reliefs (e), (f) and (g) respectively]. Given reliefs (a) to (d), the claimant’s case can comfortably be said to be one for the claim of special damages.

COURT’S SPECIFIC DECISION

24. The claim for special damages is governed by special rules. And this Court has in countless cases stressed these rules as they pertain to monetary claims in labour relations. First in NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), the Supreme Court stressed thus:

…Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with General damages. They are exceptional and so must be claimed specially and proved strictly…

…Evidence ought to be led before an award for special damages is granted. To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the court.

25. And then in 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), the Court of Appeal per Aba Aji JCA (now JSC) held thus:

The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.

26. Given these principles, this Court in Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39 held that the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer. This Court in same case went on to hold thus:

I must emphasise here that throughout their written address, the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlements they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy; and cases can be lost just on that score.

27. More elaborately, this Court in Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, held thus:

…the rule is that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Here, the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 - 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).

28. Referring to Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, this Court went on in Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017 to hold thus:

The case of the claimants is one for the claim of the payment of redundancy benefits (plus interest on them), which the claimants are claiming jointly and severally from the defendants. The claimants would be so entitled if they can prove their entitlement to redundancy benefits, and how they arrived at the quantum of the sums they are claiming.

29. And in Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court held thus:

In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.

See also Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017 and Lijoka Olaniyi Dennis & 1677 ors v. First Franchise Service Ltd & anor [2019] 2 NICLR 27-96.

30. In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.

31. The sum of it is that in labour relations, two things must be proved in monetary claims: the entitlement to the monetary claim, and how the quantum of the monetary claim was arrived at. In the instant case, the question is whether the claimant has proved these two requirements to merit the award of the reliefs he claims.

32. The claimant had resigned his employment with the defendant vide his letter of 19 July 2018, which is Exhibit C3(c). In the letter, he said he was resigning his “appointment with the Bank voluntarily with effect from 19th July, 2018”. This automatically means that he resigned with immediate effect. The claimant concluded thus in Exhibit C3(c): “I accordingly wish to pay a one month basic salary in lieu of notice which can be deducted from my terminal benefit as may be calculated by the bank”.

33. Aside from indulging the defendant to calculate his terminal benefit (for that is what “as may be calculated by the bank” means), two things arise from Exhibit C3(c):

(a) the legal effect of resigning with immediate effect — Exhibit C3(c) is dated 19 July 2018 and the resignation takes effect from same 19 July 2018; and

(b) the legal effect of the claimant asking the defendant to deduct the one month basic salary in lieu of notice form his terminal benefit.

34. Incidentally, in Dr Dave Nwabor v. Oilflow Services Limited unreported Suit No. NICN/LA/552/2015, the judgment of which was delivered on 10 July 2017, this Court in paragraphs 49 to 51 addressed these two issues in these words:

[49] Since the claimant did not give the required notice or make the alternate payment in lieu of notice, is the claimant duty bound to make the said payment? This of course raises the question of the legal effect/consequence of resigning with immediate effect. Where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to end the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract; it is not even enough that in the letter of termination he offers to pay salary in lieu of notice. See NNPC v. Idoniboye-Obu [1996] 1 NWLR (Pt. 427) 655 CA and NEPA v. Isiereore [1997] 7 NWLR (Pt. 511) 135 CA. These authorities make it an obligation for the said salary in lieu of notice to be actually paid since an offer to pay is not sufficient; almost approximating the payment of salary in lieu of notice to a debt. I held that the claimant did not give the required notice or make the requisite payment in lieu of notice. By WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258 CA, tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. See also Mr. Beloved Patrick Anokwuru v. Omatek Ventures Plc & anor unreported Suit No. NIC/LA/140/2011, the judgment of which was delivered on 16th March 2016, where this Court rationalized the case law authorities and held thus:

Resignation with immediate effect by an employee carries with three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer. The justification for having to allow the resigning employee to leave immediately and automatically is the fact that he thereby forfeits [any] benefit he may be entitled to as well as the duty to pay off all indebtedness that he may [have] towards the employer; as such, the forfeiture of benefits inures as contractual consideration for the immediate and automatic separation of contractual relationship as per the employment in issue. So it cannot be that an employee who resigns with immediate effect is allowed to also benefit from such immediate separation by claiming benefits from the employer…

[50] In the instant case, what then is the effect of the claimant resigning with immediate effect? From the above authorities, the claimant must settle all indebtedness. The payment in lieu of notice is an indebtedness. The claimant’s argument that from Exhibits 9, 10 and 11, the defendant did not reject his resignation or make any claim or allegation that the notice in Exhibit 8 was not sufficient is ineffective to take away the payment of the salary in lieu of notice since the resignation was with immediate effect. This means that the claimant is obliged to pay to the defendant N500,000 representing 2 weeks’ salary as payment in lieu of notice. I so hold. If N500,000 is deducted from the sum of N2,750,000 I held earlier to be due to the claimant from the defendant, what we have as balance is N2,250,000 as the sum due to the claimant from the defendant as per this suit. I so hold.

[51] Since the claimant in the instant case resigned with immediate effect, is he caught up by the rule that he thereby forfeits any benefit he may be entitled to? In other words, is earned salaries (which remain unpaid, such as the N2,250,000 due to the claimant from the defendant) a benefit, for which the claimant, having resigned with immediate effect, is thereby disentailed? The Black’s Law Dictionary defines benefit as advantage, privilege, profit or gain (from something). More particularly, in employment law it means a payment or gift made by an employer. Wikipedia (at https://en.wikipedia.org/wiki/Employee_benefits as accessed on 20th June 2017), on the other hand, defines employee benefit and benefits in kind (also called fringe benefits, perquisites, or perks) to include various types of non-wage compensation provided to employees in addition to their normal wages or salaries. In other words, employee benefits are non-salary compensation that can vary from one establishment to another; often indirect and non-cash payments within a compensation package, and provided in addition to salary to create a competitive package for the potential employee. In this sense, earned salary would not qualify as benefit for purposes of the application of the rule in WAEC v. Oshionebo. This being the case, the claimant in the instant case is entitled to his earned salary of N2,250,000, which remained unpaid by the defendant. I so find and hold. The claimant’s case accordingly succeeds only in terms of the sum of N2,250,000; accordingly, reliefs (1) and (2) are grantable but only in terms of N2,250,000. I so hold.

35. From Dr Dave Nwabor, the key principles discernible are:

(a) The party seeking to end the contract (the claimant in the instant case) must pay to the other party (the defendant) the salary in lieu of notice at the time of termination of the contract; it is not even enough that in the letter of termination he offers to pay salary in lieu of notice. It is an obligation for the said salary in lieu of notice to be actually paid since an offer to pay is not sufficient; almost approximating the payment of salary in lieu of notice to a debt. In Exhibit C3(c), the claimant in the instant case asked the defendant to deduct the one month basic salary in lieu of notice form his terminal benefit. This is not lawful.

(b) Except for earned salary, non-wage compensation provided to employees in addition to their normal wages or salaries i.e. employee benefits that are non-salary compensation, which may vary from one establishment to another; often indirect and non-cash payments within a compensation package, are not payable to an employee who resigns with immediate effect. The claimant in the instant case resigned with immediate effect. Is he entitled to the benefits he claims in this suit?

36. Going by paragraph 37 of the amended statement of facts, the claimant’s case is for “proper computation of his entitlements and other terminal benefits and including outstanding gratuity, severance, and unremitted deductions as at 19th July 2018”, which to him stands at a total pf N19,802,733.46. And in paragraph 38 of the amended statement of facts, the claimant broke down this sum as consisting of: severance payment, extra-gratuity for 18 years, ex-gratia, outstanding upfront as to housing and furniture, unremitted payments as to pension, tax and National Housing Fund. The claimant is expected to show to this Court how all of these items have been earned by him to enable this Court grant same to him. But he did not.

37. I must state that the claims for unremitted payments as to pension, tax and National Housing Fund are ill-directed to the defendant. Remittances can only be made to the appropriate bodies named by the claimant, certainly not directly to the claimant. So, it is wrong for the claimant to file for them against the defendant as he did in this suit. I so hold.

38. As for the other claims, the claimant only referred to pages 79 and 83 of Exhibit C1, the Human Capital Management Policies & Staff Handbook i.e. the Policy Manual when he made his own calculation in Exhibit C3(e). Page 79 deals with non-contributory gratuity scheme for all staff operated by the defendant and page 83 simply states that gratuity under the non-contributory scheme operated shall be equivalent to 100% of Annual Basic Salary for employment tenure of 10 years (there is an additional 10% for service above 10 years); and for staff of 8 years service and above, they are entitled to ex-gratia of 40% of Annual Basic Salary (for staff of 8 years service) and a graduated percentage of up to 100% for staff who served between 9 to 20 years. However, for a staff that is dismissed for whatever reason or who resigns to avoid dismissal, he shall not be entitled to gratuity. Equally, a staff who is dismissed shall not be entitled to ex-gratia payment. Nothing is said in these pages of severance payment, which the claimant claims. The defendant accordingly rightly points out in Exhibit C3 that the claimant erroneously included severance payment in his claim against it.

39. The claimant’s calculation of his entitlements as per his pleadings, deposition and Exhibit C3(e) is jumbled with no hint, save for the reference to pages 79 and 83 of Exhibit C1, as to how he became entitled to each of the sums he claims. As I show below, the claimant’s calculation cannot be proof of his entitlement or the quantum of his entitlement. This means that the claimant has not, to the satisfaction of this Court, met the first requirement of proof demanded of him i.e. proof of his entitlement to the sums he claims. I so hold.

40. Coming to the second requirement i.e. how the claimant arrived at the quantum of the sums he claims, I indicated earlier that the claimant particularised his claims in paragraph 38 of the amended statement of facts. But this particularisation is not reflected in the claimant’s sworn deposition. This means that the heads of claims as per paragraph 38 of the amended statement of facts are unsupported by the deposition and so carry no nexus to the exhibits tendered by the claimant. The rule is that pleadings without evidence go to no issue [CBN & ors v. Aite Okojie [2015] LPELR-24740(SC) and Cameroon Airlines v. Mr Mike E. Otutuizu [2011] LPELR-827(SC)], just like evidence without pleadings also go to no issue [Raymond Eze v. Betram Ene & anor [2017] LPELR-41916(SC) and Kalu Onwuchekwa v. B. I. D. Ezeogu [2009] LPELR-8267(SC)].

41. I indicated earlier that Mr Mohammed Dungus & ors v. ENL Consortium Ltd held that merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. And that counsel should not expect that it is the Court that will shop for the relevant section or article that substantiates the claim of his/her client.

42. In Exhibit C3(a), the letter of 26 October 2018 written by the claimant’s counsel to the defendant and titled “Demand Letter for the Gross Accruable Gratuity and Other Statutory Entitlements for Mr Gbenga Agbeyemi”, the claimant put his “proper computation of his gratuity, other benefits accrued to him as a Senior Banking Officer (SBO)” as N15,313,852. In the instant action, he says it is N19,802,733.46. There is no explanation to the Court on why there is this discrepancy. I note that in the claimant’s Exhibits C3 of 18 October 2018 and C3(b) of 2 November 2018, the defendant denied the claimant’s calculation of his final entitlements, which calculations the claimant did vide Exhibit C3(e) of 10 September 2018. In Mr Usanga Eyo Brian v. Polaris Bank Limited unreported Suit No. NICN/LA/412/2014, the judgment of which was delivered on 20th March 2019, this Court held that “…submitting a bill for onward transmission to management for approval cannot be read to mean the approval”.

43. Of course, the claimant’s calculation of his entitlements as per his Exhibit C3(e) is self-generated and so is not in itself proof of his entitlement to, and/or quantum of, the entitlements. In Mr Gabriel O. Obahiagbon & ors v. The President, Federal Republic of Nigeria & ors unreported Suit No. NICN/LA/171/2011, the judgment of which was delivered on 9th July 2019, this Court in paragraphs 113 and 114 held thus:

[113] Now, the claimants claim that they were short-paid in their pensions. In proof of these payment short-falls, the claimants tendered Exhibits GO-5A - GO-5V. Exhibits GO-5A - GO-5V are, however, the claimants’ purported Payment Record Analysis and Pension Payment Record prepared by G. O. Obahiagbon (Donee) Services; in essence the 1st claimant. Since these exhibits are self-generated, they cannot be proof of any entitlement. At best they qualify as pleadings. In Mr Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment of which was delivered on 20th May 2019, this Court held thus on self-generated exhibits:

Exhibits C14 and C15 are the computations made [by] the claimants themselves as to their respective 2006 furniture claim and severance claim. Exhibits C14 and C15 are self generated and so cannot be proof of the claimants’ claim for furniture and severance claims. See Peter Yinkore & 73 ors v. Neconde Energy Limited & anor unreported Suit No. NICN/LA/611/2012, the judgment of which was delivered on 12th February 2019 at paragraph 107.

[114] And in Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC, this Court held thus on solicitor’s letter seeking to achieve the same purpose:

All of this aside, Document 6 (the letter of the claimant’s solicitor to the defendant dated 25th May 2010) cannot be used to prove the statements contained therein. We agree with the defendant that its weight and probative value as proof of its content is suspect. At best, the said letter only proves that the claimant demanded for his entitlement from the defendant. It cannot be used as proof of the entitlement of the claimant to the amount claimed as accrued performance bonus earned by the claimant. Regarding the entitlement of the claimant to the sum of Ninety-Nine Thousand United States Dollars claimed, document 6 goes to no issue and so is discountenanced for that purpose.

See also Barrister Jerome Lucky Simon v. Barrister Moses Okosun unreported Suit No. NICN/LA/78/2016, the judgment of which was delivered on 25th April 2018. The claimants in the instant case cannot thus rely on Exhibits GO-5A to GO-5V as proof of entitlement to the said N121,353,862.66 they claim as relief (g). I so find and hold.

44. It is the calculations that the claimant made in Exhibit C3(e) that he reproduced in paragraph 38 of his amended statement of facts. Even then, there are discrepancies. For instance, in paragraph 38 of the amended statement of facts, the claimant put his gross salary per annum as N2,963,33, while in his Exhibit C3(e), it is 2,963,333. The error may be typographical, but the claimants claim is one for special damages, which the law says must be strictly proved. Monthly gross salary in the said paragraph 38 was put as 252,078.33, whereas in Exhibit C3(e) it is 246,944.22. This error (if it is one at all) cannot be typographical. It is substantive.

45. Now, in both Exhibits C3(a) and C3(e), the claimant referred to page 79 of the Human Capital Management Policies & Staff Handbook i.e. the Policy Manual (Exhibit C1) — Exhibit C3(a) referred further to page 83. A look at these pages will show that the non-contributory gratuity scheme for all staff operated by the defendant (page 79) is calculated on the basis of gross salary. But at page 83, the same Exhibit C1 states that gratuity under the non-contributory scheme operated shall be equivalent to 100% of Annual Basic Salary for employment tenure of 10 years (there is an additional 10% for service above 10 years); and for staff of 8 years service and above, they are entitled to ex-gratia of 40% of Annual Basic Salary (for staff of 8 years service) and a graduated percentage of up to 100% for staff who served between 9 to 20 years. However, for a staff that is dismissed for whatever reason or who resigns to avoid dismissal, he shall not be entitled to gratuity. Equally, a staff who is dismissed shall not be entitled to ex-gratia payment.

46. Given Exhibit C3(c), the claimant resigned voluntarily and with immediate effect. This means that the onus is on the claimant to proof to this Court that the benefits he claims as entitlements are earned. This he did not do in this case. Assuming he even did this (I hold that he did not), he did not prove to the satisfaction of the Court how he arrived at the quantum of the sums he claims. This being so, I hold that the claim for benefits and entitlements has not been satisfactorily proved as to warrant this Court giving judgment to the claimant in terms of reliefs (a), (b) and (c) he claims. There is no basis to grant relief (a) i.e. the declaration that the computation by the defendant of the claimant’s benefits and entitlements was done in bad faith. As such, relief (b), the order that the defendant properly calculates the claimant’s benefits and entitlements, cannot be granted. Of course, relief (c), the claim for N19,802,733.46, was not proved and so cannot be granted.

47. Relief (d) is for an order directing the defendant to return all the original certificates of the claimant in the defendant’s custody. In paragraphs 7 and 8 of the amended statement of facts (as respectively supported by paragraphs 6 and 7 of the claimant’s deposition), the claimant averred that: the defendant demanded for the originals of his certificates as collateral for his loan during his employment with the defendant; and that all his original certificates are still in the possession of the defendant for which even after his voluntary retirement, the defendant never deemed it fit to return same considering the termination of his employment contract. The claimant then listed the certificates as: NYSC Certificate; and HND Certificate. The photocopies are attached as Exhibits C2 and C2(a) respectively. Aside the photocopies of the certificates frontloaded, there is nothing before the Court indicating the demand from the defendant for the originals of the certificates as collateral for any loan. The claimant’s case is not that the certificates were collected from him as collateral for him remaining in employment with the defendant for which his resignation automatically means that the certificates should be returned to him. His case is that the certificates were collected as collateral for a loan. Even here, the claimant’s case is not that it is wrong or unlawful or an unfair labour practice that his certificates were collected as collateral for a loan. A court cannot make a case for a litigant. Accordingly, relief (d) has not been proved and so cannot be granted.

48. Reliefs (e), (f) and (g) are ancillary reliefs dependent on the success of the main reliefs. Since the main reliefs failed, they too fail. On the whole, and for the reasons given, the claimant’s case fails and is hereby dismissed. Judgment is entered accordingly. I make no order as to cost.

……………………………………

Hon. Justice B. B. Kanyip, PhD

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