IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 26^th MARCH 2026                                                          Suit No: NICN/LA/79/2023

 

BETWEEN

 

MRS. NKECHI STELLA OGBONNAYA   …………… CLAIMANT 

 

 

AND 

 

STERLING BANK PLC                                  ………         DEFENDANT 

 

REPRESENTATION:

U. C Ikegbule for the Claimant 

Oluwatosin Iyayi with Amarachi Nickabugu and Mayflora Ejedegba for the Defendant

 

JUDGMENT

 

By a general form of complaint filed on the 27^th March, 2023 the claimant in paragraph 28 of the statement of fact claimed the following reliefs against the defendant:

 

 

 

 

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated 16^th March, 2023 but filed 27^th March, 2023.

 

The defendant filed its statement of defense in paragraphs 1-28, with witness written statement on oath (dated and filed 7^th June, 2024) and documents to be relied upon at trial dated and filed 22^nd May, 2023.

 

The Claimant’s Reply to the defendant’s Statement of Defence is dated and filed 31^st May, 2023. 

 

The summary of the facts pleaded by the claimant is that sometime about the 4^th April, 2000, while she was still a spinster, with her maiden name as Miss Nkechi Stella Otti, she was employed by the defunct Magnum Trust Bank Plc as an Assistant Banking Officer (Level 1) and was duly confirmed by the Magnum Trust Bank, effective from the said 12^th of October, 2000, via a Letter of Confirmation of Appointment dated 22^nd March, 2001; that upon becoming married, sometime in 2002, she changed her name to Mrs. Nkechi Stella Nwangwu to the knowledge of Magnum Trust Bank Plc and that sometime in late 2005, the defunct Magnum Trust Bank Plc and four (4) other banks, including Indo-Nigerian Bank, NAL Bank and Trust Bank of Africa went into a merger to form the Defendant bank and upon the merger aforesaid, her employment with Magnum Trust Bank was transferred to the Defendant with effect from 1^st January, 2006, via the Defendant’s letter to her, dated the 29^th December, 2005. That whilst she was still in the employment of the Defendant, sometime about the year 2006, she further changed her name from Mrs. Nkechi Stella Nwangwu to Mrs. Nkechi Stella Ogbonnaya to the knowledge of the Defendant and the newspaper publications as to the said changes in her names were duly made in the Vanguard Newspaper of Monday, February 4, 2002 and Daily Sun of Thursday, December 14, 2006, respectively; that she remained in the employment of the defunct Magnum Trust Bank Plc and the Defendant till the 30^th of November, 2020, a period of 20 (twenty) years and 8 (eight) months and in the course of her meritorious career and services in the said banks, she rose through the ranks from an Assistant Banking Officer (Level 1) to an Assistant Manager and Head, Retail in charge of Okpara Avenue, Enugu branch of the Defendant, a position she held until her voluntary resignation, effective the 1^st of December, 2020. 

 

That the terms and conditions of her employment with the Defendant, as contained in the Defendant’s staff handbook, provide that upon voluntary resignation from the Defendant’s employment, she was entitled to be paid Gratuity and Pension benefits under the contributory Pension Scheme of the Defendant, amongst other benefits, but the Defendant, only paid her a final entitlement in the total sum of N6,300,321.90 (Six Million, Three Hundred Thousand, Three Hundred and Twenty-One Naira, Ninety Kobo) on the 10^th of December, 2020, without the payment of her accrued Gratuity benefits and that a staff of the Defendant qualifies for the payment of the Defendant’s non-contributory Gratuity Scheme, if the staff has spent a minimum of 5 (five) years in the employment of the Defendant on the computation of the “total monthly emolument for each completed year of service”; that to the best of her recollection, while she was in the employment of Magnum Trust Bank Plc and the Defendant, she was placed on various grades and emoluments as detailed below:

 

 

2002;

 

2004;

 

 

2007;

 

2007;

 

December, 2008;

 

and

 

That her yearly emoluments for the period she was in her various grades in the employment of Magnum Trust Bank Plc and the Defendant were as follows:

 

Assistant Banking Officer (Level 1) -             N462,342.75;

Assistant Banking Officer (Level 1) -             N668,965.63

Assistant Banking Officer (Level 4) -             N684,715.63

Deputy Banking Officer (Level 1)       –          N1,172,416.67;

Senior Executive Trainee                      -           N2,210,000.00

Banking Officer                             –          N3,668,232.00;

Senior Executive                           –          N4,119,343.93;

Senior Banking Officer                             -        N6,001,595.00; and

Assistant Manager                                   -           N11,206,748.26;  

 

That at the time of the transfer of her employment to the Defendant from Magnum Trust Bank Plc, the Defendant, by its letter dated 29^th December, 2005, confirmed to her that the total amount that accrued to her while she was in the employment of Magnum Trust Bank Plc. amounted to the sum of N396,289.00 (Three Hundred and Ninety-Six Thousand, Two Hundred and Eighty-Nine Naira and this amount formed part of the total sum of N6,300,321.90 paid to her following her resignation from the Defendant’s employment; that starting from the date of the transfer of her employment to the Defendant up till the date of her said resignation, her total emolument for each completed year and the eleven months which she spent in the direct service of the Defendant is computed as follows:

 

 

A.        N2,210,000.00 ÷ 12 = N184,166.66K 

 

B.        Month’s emolument for the completed year is = N184,166.66K

 

Whereby the figure ‘12’ represents the number of months in a year and the number of months she was in a particular emolument in the year;

 

 

A.        (N2,210,000.00 ÷ 12)3 + (N3,668,232.00 ÷ 12)8 + (N4,119,343.93K ÷ 12)1

 

B.        N552,500.00 + N2,445,488.00 + N343,278.66K = N3,341,266.66K.

 

C.        Month’s emolument for the completed year is N3,341,266.66K ÷ 12=            N278,438.88K.

 

Whereby the figure ‘12’ represents the number of months in a year and the figures ‘3’, ‘8’ and ‘1’ represent the number of months she was in a particular emolument in the year;

 

 

A.        N4,119,343.93K ÷ 12 = N343,278.66K

 

B.        Month’s emolument for the completed year is the sum of N343,278.66K.

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was in a particular emolument in the year;

 

 

A.        N6,001,595.00 ÷ 12 =     N500,132.92K

 

B.        The month’s emolument for the completed year is the sum N500,132.92K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of month(s) she was on a particular monthly emolument in the year; 

 

 

A.        N6,001,595.00 ÷ 12 =     N500,132.92K

 

B.        The month’s emolument for the completed year is the sum N500,132.92K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of month(s) she was on a particular monthly emolument in the year; 

 

 

A.        Year’s emolument of N6,001,595.00 ÷ 12 = N500,132.92K

 

B.        Month’s emolument for the completed year is the sum of N500,132.92K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        (N6,001,595.00 ÷ 12)5 + (N11,206,748.26K ÷ 12)7

 

B.        N2,500,664.58 + N6,537,269.82K = N9,037,934.40K.

 

C.        Month’s emolument for the completed year is N9,037,934.40K ÷ 12=            N753,161.20K.

 

Whereby the figure ‘12’ represents the number of months in a year and the figures ‘5’ and ‘7’ represent the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

N11,206,748.26K ÷ 12 = N933,895.69K

 

Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 = N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 = N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months she was on a particular emolument in the year;

 

 

A.        N11,206,748.26K ÷ 12 = N933,895.69K

 

B.        Month’s emolument for a completed year is N933,895.69K

 

Emolument for 11 months period is 11/12 × N933,895.69K

(i.e. 0.92 × N933,895.69K) = N856,071.05K

 

Whereby the figure ‘12’ represents the number of months in a year and the figure ‘11’ is the number of months she was on a particular emolument in the year;

 

That based on a summation of the figures of monthly emoluments as computed, her total gratuity entitlement due for the duration of her employment with the Defendant in the circumstance amounted to the sum of N10,452,785.04K (Ten Million, Four Hundred and Fifty-Two Thousand, Seven Hundred and Eighty-Five Naira, Four Kobo); that sequel to the said sum of N6,300,321.90 paid to her by the Defendant as her final disengagement entitlement, she sent an email to the Defendant’s Exit Desk Team, Human Capital Management on the 11^th of December, 2020, using her email address, nkechiosy@gmail.com, which she created using her husband, Mr. Charles Nwangwu’s name, and requested for the total breakdown of all she was paid as her total entitlement and in response to her said email, the Defendant’s Exit Desk officers, Adebusola Scere and Adetolu Okandeji, in their letter to her also dated 11^th December, 2020 which was transmitted electronically, tabulated the total entitlement they purported to be due and paid to her as well as her purported indebtedness to the Defendant. That the breakdown of the total entitlement purportedly due to her and her said indebtedness to the Defendant did not mention or contain any item of payment due to her as her accrued Gratuity, and has not been paid the Gratuity due to her by the Defendant till date, notwithstanding the fact that she was in the employment of Magnum Trust Bank Plc and the Defendant for 20 (twenty) years and 8 (eight) months without blemish before resigning from the employment; that following her discovery of the shortfall in the separation entitlements paid to her by the Defendant, she instructed her  Solicitors, Messrs Ibrahim Tahir, Ikegbule & Associates, to write a letter of demand to the Defendant for the payment of the said accrued Gratuity, which instruction the firm of Messrs Ibrahim Tahir, Ikegbule & Associates carried out by their letter to the Defendant dated 20^th January, 2023 and same was received by the Defendant at its head office on the 23^rd of January, 2023 and that her Solicitors also wrote a reminder letter, dated 20^th February, 2023 to Defendant in response to which the Defendant wrote a letter dated 6^th March, 2023, rejecting her demand for the payment of her Gratuity on the ground that it no longer has a gratuity scheme and that it only remits its pension contributions to its employees’ account. 

 

That she was never informed or issued with any staff hand book replacing the Defendant’s staff handbook in this matter and in response to the said letter by the Defendant conveying its decision not to pay her said Gratuity entitlement, her Solicitors, by their letter, dated 8^th March, 2023, explained to the Defendant that her demand for the payment of her gratuity in question is different from the Pension entitlement which the Defendant alluded to in its said letter and that she is unaware of any replacement of its staff handbook with any new one, contrary to the claim by the Defendant, but all these were to no avail; that she has been put through tremendous psychological trauma, distress and embarrassment as a result of the conduct of the Defendant in withholding the payment of the Gratuity that accrued to her and also been made to incur legal expenses which she would not have incurred but for the refusal and failure of the Defendant to honour its obligation to her in the circumstance of this matter hence the present suit.

 

In her reply to the defendant’s statement of defence; CW stated that it is important for her to point out that the Defendant’s Staff Handbook which governed her employment in respect of this matter was the Defendant’s Staff Handbook that came into effect at the time of the commencement of her employment with the Defendant sometime about the 1^st of January, 2006 wherein it was expressly provided that upon the termination of employee who had worked for at least five years, such employee would be entitled to Gratuity payment as part of the separation benefits hence the total severance or separation benefits due her from the Defendant includes Gratuity payment and that it is untrue and incorrect that there is a new Staff Handbook of the Defendant that subsequently came into effect on the 21^st September, 2015 or at any other time during her said employment with Defendant; that whilst she admit that the Defendant was entitled to make amendments/alterations to its policy from time to time, it is also correct that any amendment/alteration to the policy of the Defendant in its Staff Handbook was expected to be communicated to and accepted by all the staff of the Defendant including herself in order for it to bind her; that while she was in the employment of the Defendant, whenever any important information or document is to be circulated to the staff, the management of the Defendant usually insisted that each staff should sign and formally acknowledge receipt, knowledge or acceptance of such information or document, as the case may be, and when that is done, the Defendant usually documents such acknowledgement of receipt of the information or execution of document by the staff in the personal file of the affected staff or each staff, as the case may be, and kept with its Human Resources Department but in the instant matter, no such information was circulated or passed on to her or the entire staff of the Defendant and I never sighted, signed or acknowledged receipt or knowledge of the purported email from the Defendant’s Human Resources Team dated 21^st September, 2015 or the purported new Staff Handbook of the Defendant which would have been the case had the purported email or new Staff Handbook of the Defendant been sent to and received by her and all the staff of the Defendant.

 

That the claim of the Defendant to the effect that it did not have a Gratuity Policy in place at the time of the termination of her employment with it and that the entitlement stated in its letter dated 11^th December, 2020 was all the severance/separation benefit due her from the Defendant are false; that her Solicitors’ letter dated 20^th January, 2023 was served and duly received by the Defendant through the officer at the Mail Room of its head office at Sterling Tower, Marina, Lagos contrary to the claim by the Defendant in this matter which is evidenced by the franking stamp of the Defendant on the copy of the said letter.

 

Under cross examination by the defendant’s counsel, CW stated that she was assigned email address Nkechi Ogbonnaya @ Sterling Bank when she joined the defendant as an employee and that she did received email and sent out mails from the address; that she is not aware an email was sent via ‘all staff’; that she does not have any document to show that the 2006 handbook was in operation in December, 2020 when she resigned; CW confirmed that the amount paid into her account tallies with the one in the schedule. 

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed her case. 

 

The defendant opened its defence by calling its sole witness, Tinuke Oyinlola, the Head, Human Capital Compliance & Employee Conduct of the defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that the Claimant was initially employed by Magnum Trust Bank Plc and later became an employee of the Defendant with effect from 1^st January, 2006, until she exercised her right to terminate her contract of employment on 25^th November, 2020; that upon the commencement of the employment relationship with the Defendant, the Claimant became subject to the terms and conditions of the Defendant's employment contract, including the Defendant's HR policies and Staff manuals/Handbook, as communicated to her vide the Defendant's letter dated 29^th December, 2005; that pursuant to the issuance of the aforesaid contract of employment, she is aware that the Claimant acknowledged and accepted the terms of her new contract of employment with the Defendant, by duly executing same on 13^th January, 2006; that the Claimant was not entitled to receive any Gratuity benefit from the Defendant upon the termination of her contract of employment as the Defendant's Staff Handbook did not make any provision for the payment of any Gratuity to its employees upon the termination of their contract of employment or as the Claimant put it, upon "resignation" from the Defendant's employment, as alleged by the Claimant; that upon the termination of the Claimant's contract of employment, the Defendant paid to the Claimant her entitlement/separation benefits which had accrued to her as at the 1^st day of December, 2020, the day on which the termination took effect and that the total amount which the Claimant was entitled to upon the termination of her contract of employment is the sum of N6,645,361.28 (Six Million Six Hundred and Forty-Five Thousand Three Hundred and Sixty-One Naira, Twenty-Eight Kobo) but the claimant as at the 1^st day of December, 2020, was indebted to the Defendant in the sum of Nl,434,856.89 (One Million Four Hundred and Thirty Four Thousand Eight Hundred and Fifty- Six Naira, Eighty-Nine Kobo). Thus, the net amount which was paid to the Claimant having regard to her outstanding obligations to the Defendant, was in the sum of N5,206,365.62 (Five Million Two Hundred and Six Thousand Three Hundred and Sixty-Five Naira, Sixty-Two Kobo); that as part of the Defendant's policies, the Claimant was also entitled to a pension contribution by the Defendant into her pension fund account, in accordance with the dictates of the Pension Reform Act which the Defendant has since fulfilled its obligation to pay the Claimant's benefits as accrued to her by virtue of the Defendant's contribution to the Claimant's pension fund account. 

 

that the Defendant's Staff Handbook does not make provision for a Gratuity Scheme or the payment of Gratuity, regardless of the length of time in which an employee has worked in the Defendant's employment, the Claimant is therefore, not entitled to the payment of any sums as "Gratuity"; that the Defendant's policy in relation to employees' entitlements upon the termination of their contract of employment is as contained in the Defendant's extant Staff Handbook which came into force on 21^st September, 2021, during the course of the Claimant's employment with the Defendant and that part of the terms of the Claimant's contract of employment is that the Defendant is entitled to make amendments and/or alterations to its policies from time to time and in line with this, the Defendant amended its policies as contained in the Staff Handbook which was in force at the time the Claimant commenced her employment relationship with the Defendant; that the Staff Handbook which the Claimant relies on in her claim became obsolete and was superseded by the new Staff Handbook which has been in use by the Defendant and its entire workforce since September 2015, a fact well known to the Claimant, prior to the commencement of this action; that this fact was communicated by the Defendant's Human Resource Team and the extant Staff Handbook of the Defendant was circulated to the Defendant's workforce inclusive of the Claimant via email of the 21^st day of September, 2015. 

 

That there is no dispute between the Claimant and the Defendant as to the various grade levels which the Claimant occupied and the annual remuneration and emoluments attached to the said grade levels. However, the Claimant is not entitled to receive Gratuity payment, as the payment of Gratuity is not part of the Defendant's policies; that the claimant was entitled to be paid the sum of N396,289.00 (Three Hundred and Ninety-Six Thousand Two Hundred and Eighty-Nine Naira) at the time of the commencement of her contract of employment in January 2006, being Gratuity, which had accrued to her by virtue of her employment with Magnum Trust Bank Plc and that this sum was carried over to the Defendant, and it was clear to the Claimant at the time that any future Gratuity entitlement will be determined by the Defendant and in accordance with the Defendant's policies in this regard as stated in the Claimant's contract of employment as follows: 

 

"2.0 Gratuity 

 

Based on gratuity policy of Magnum Trust Bank Plc, your gratuity entitlement as at 31^st December, 2005 amounts to N396,289.00 

 

This amount shall be transferred to Sterling Bank. At the point of separation from the bank's employment, your final gratuity entitlements shall be calculated based on the addition of: 

 

Entitlements at as(sic) December 31,2005 as indicated above

 

And additional sums calculated as Gratuity for the period of employment in Sterling Bank with effect from January 1, 2006 based on Sterling Bank's policies in respect of gratuity. 

 

That the Claimant is not entitled to the payment of the sum of N10,452,785.04 (Ten Million four Hundred and Fifty-Two Thousand Seven Hundred and Eighty-Five Naira, Four Kobo) or any further sums as severance benefits as the Claimant was duly paid all her severance/separation benefits, as contained in its letter to the Claimant which is dated 11^th December, 2020, and in accordance with the provisions of Section 13.3.2 of the Defendant's Staff Handbook; that the Defendant received the 20^th January 2023 letter of the Claimant's Solicitors Messrs. Ibrahim, Tahir, Ikegbule & Associates demanding from the Defendant, payment of what was described as a “Short- payment in the Claimant's separation benefits" However, there was no shortfall in the separation benefits paid to the Claimant upon the termination of her contract of employment as the net amount which was credited to the Claimant after the deduction of the Claimant's outstanding obligations to the Defendant at the time of the termination of her contract of employment was the sum of N5,206,365.62 (Five Million Two Hundred and Six Thousand Three Hundred and Sixty-Five Naira Sixty-Two Kobo} which represents the entirety of the Claimant's separation entitlement from the Defendant, without more, a fact well known to the Claimant. 

 

That the Defendant received the 20^th February, 2023 letter of Messrs. Ibrahim, Tahir, Ikegbule & Associates, and rightly stated in its 6^th March 2023 response, that the Defendant does not have a Gratuity Scheme as part of its policies, that the Gratuity Scheme provision which the Claimant's solicitors relied upon in their letters of demand is as contained in the now defunct Staff Handbook which ceased to be in operation since 21^st September, 2015; that the said Staff Handbook became effective immediately it was circulated to members of the Defendant's workforce and that the Defendant in circulating the extant Staff Handbook clearly declared to its workforce that the old Staff Handbook which the Claimant's action is predicated upon had become "null, void and of no effect" from the 21^st day of September, 2015; that the effect of the new Staff Handbook is that the policies which were contained in the old Staff Handbook ceased to exist from 21^st September, 2015 and that the policies contained in the new Staff Handbook became binding on all the employees of the Defendant (including the Claimant) from the 21^st day of September, 2015; that the Defendant did not in any way or manner cause the Claimant any form of psychological trauma, distress and/or embarrassment and that the Claimant's suit is an afterthought, frivolous, vexatious and a calculated attempt to harass, embarrass and intimidate the Defendant with the sole aim of making undeserved profits off the Defendant.

 

Under cross examination by the claimant’s counsel, DW stated that she was employed by the defendant in 2024 and that she does not know the claimant in person; that exhibit NS24 does not show that it was cut out; that exhibit NS22 is a group email and that it never stated that the hardcopy of the handbook will be circulated to all staff; that exhibit NS24 came into effect in 2015 and not September, 2021.      

 

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

 

The parties were directed to file their final written addresses. The defendant’s final written address is dated and filed 11^th June, 2025 while the claimant’s final written address is dated and filed 23^rd July, 2025. The defendant’s Reply on point of law is dated and filed 31^st July, 2025.

 

Learned counsel on behalf of the defendant framed a sole issue for the court’s determination viz:

 

Whether the claimant has been able to show by credible evidence her entitlement to the reliefs claimed in this suit.

 

It is the defendant’s counsel submission on the sole issue that the Claimant is not only undeserving of the reliefs sought before this Honourable Court, but also that the Claimant has failed woefully to establish by way of credible evidence, her entitlement to the reliefs sought; that the Defendant having expressly stated its entitlement to review its HR policies, reviewed and replaced the staff manual which was in existence at the commencement of the relationship with the Claimant, with the Staff Handbook (exhibit NS24) which was introduced on 21^st September 2015, via its email to all its employees. Therefore, exhibit NS24 is the extant document which contains the policies of the Defendant as at the time the claimant terminated her contract of employment with the Defendant; that the testimony of the Claimant lends credence to the case of the Defendant, that the email of 21^st September, 2015 was received by the Defendant's entire workforce, including the Claimant herself. Curiously, despite the Claimant's express admission that emails sent to the "All Staff" email address are received by all employees of the Defendant, including herself, the Claimant, who, as of the material time, was an employee of the Defendant, turned around to testify that she never received the email of 15^th September, 2015.  He cited the case of Omman v Ekpe (2000) 1 NWLR (Pt. 641) 365 and urged the honourable court to hold that the evidence of the claimant in this regard is incongruous and lacks credibility. 

 

Continuing, counsel submitted that the entitlement to gratuity payments due from the Defendant to the Claimant, at the point of her resignation would be determined by the Defendant's policies on same as at the material time which is exhibit NS24 and that what the claimant is entitled to has since being paid to her in exhibit N16; that assuming that the origin and content of the emails in question under cross examination of DW are facts in issue, by virtue of the provisions of the Evidence Act 2011 (as amended), such matters, being scientific and technical in nature, must be proven by expert evidence, which the Claimant failed to do and neither did the claimant denied the receipt of the email of 21 September, 2015 from the defendant in her Reply to the defendant’s Statement of defence; that it is trite law that any oral testimony, whether under cross-examination or otherwise, that seeks to dispute these facts go to no issue.

 

That the solitary reference in paragraph 10 of the Statement of Defence and the corresponding paragraph of DW's Witness Statement on Oath to the year "2021" is clearly a typographical error which does not undermine the consistency of the Defendant's pleadings; that a typographical error such as the incorrect entry of part of a date, especially where the correct date is repeated and consistently referenced in other portions of the Defendant's pleadings and documentary evidence, is clearly a minor oversight and does not go to the root of the pleadings or evidence and neither misleads the honourable court nor prejudices the opposing party. He cited the case of a Obasi Bros. (Nig.) Ltd v. Willbros (Nig.) Ltd (1991) 2 NWLR (Pt. 181) 606 and urged the honourable Court to not allow undue adherence to technicalities derail the course of substantial justice.

 

That the Claimant's ancillary claims for pre- and post-judgment interest as well as costs of this action, ought to automatically fail as they have no foundation or predicate relief to stand upon; that the Claimant merely asserted, at paragraph 26 of her Witness Statement on Oath deposed to on 16^th March, 2023, that she is entitled to recover gratuity "with interest at the prevailing rate of interest in Nigeria of 20% per annum" without proving any contractual or equitable foundation for this assertion nor on how she arrived at the rate of 20% per annum as the prevailing rate of interest in Nigeria. He cited the case of Fouani Nig. Ltd. v. Idoko (2020) 2 NWLR (Pt. 1709) 401 and urged the honourable court to so hold and to resolve the sole issue for determination in favour of the defendant.

 

Learned counsel on behalf of the claimant formulated two (2) issues for the court’s determination viz:

 

 

 

It is the claimant’s counsel submission on issue one (1) that since the Defendant asserts positively that it replaced its Staff Handbook, Exhibit NS7, with a new one, Exhibit NS24, it follows that the burden of proving that assertion rests on the Defendant; that in the face of the deficiencies on the face of Exhibit NS22 and Exhibit NS24, respectively, and based on the evidence elicited from DW under cross-examination, it is highly improbable that the said exhibits were transmitted electronically through the internet or otherwise, let alone being circulated to the staff of the Defendant, particularly during the time the Claimant was still in the employment of the Defendant; that by virtue of Section 167 of the Evidence Act, 2011, the  Honourable Court can also presume that an email said to have been forwarded to someone but whose email address or name does not appear on the document could not have been forwarded to the person after all; that that there is no evidence to show that the Defendant communicated Exhibit NS24 to its staff during the period the Claimant was in its employment so as to make the Claimant bound by the purported new Staff Handbook; that there is no evidence to show that the Defendant communicated Exhibit NS24 to its staff during the period the Claimant was in its employment so as to make the Claimant bound by the purported new Staff Handbook as the communication of any amendment or alteration in the HR policies of the Defendant is very critical to the applicability and validity of any alteration to its HR policies. That Exhibits NS22 and NS24, respectively, were both procured merely for the purpose of the trial in this matter and ought to be rejected by the honourable Court as legally inadmissible and lacking in probative value pursuant to Section 83(3) of the Evidence Act, 2011, as they constitute statements made by person interested at the time when proceedings were pending or anticipated involving a dispute as to a fact which the statements are intended to establish. 

 

On issue two (2); counsel submitted that it is the letter of the Defendant transferring the Claimant’s employment, Exhibit NS3, and its Staff Handbook of 2006, Exhibit NS7, that constitute the documents of employment embodying the terms and conditions of the said employment and that they are to be construed jointly in ascribing obligations to the parties with respect to the contract of employment in this matter; that 

without conceding that Exhibit NS7 was ever replaced at any time during the employment of the Claimant by the Defendant and that having admitted that Exhibit NS7 operated up till September, 2015, the Defendant ought to have, at least, paid the Claimant her gratuity benefit from 2006 up to 2015 in accordance with the provision in Exhibit NS3 which states that at the point of separation from the bank’s employment, the Claimant’s final gratuity entitlements shall be calculated based on the addition of her entitlements as at December 31, 2005 and additional sums calculated as Gratuity for the period of her employment in Sterling Bank with effect from January 1, 2006 based on Sterling Bank’s policies in respect of gratuity.

 

That the claimant’s entitlement and claim for interest is justified in this matter as it serves as compensation for the deprivation of the said benefit to her; that it is worthy of mention that CW is a former banker who by virtue of her career and experience as a banker ought to know what the prevailing rates of interest in the country is and that she was never cross-examined on the very important piece of evidence; that if judicial notice were to be taken by the honourable Court of the recent devaluation of the Naira since 2023 when the present administration came into office and the resultant loss of value of funds, the said sum of N10,452,785.04K claimed by the Claimant in this matter has lost more than three times its value as at the 1^st of December, 2020 and that the amount of interest payable to the Claimant in the circumstance would be grossly inadequate to compensate her for the losses she has suffered and continues to suffer as a result of the refusal of the Defendant to pay her the said gratuity benefit.

 

On the claim for costs, counsel submitted that the Claimant had to travel twice from Enugu to Lagos in the course of this trial in order to give her evidence and that cost follows event and in the event that this Honourable Court comes to a considered finding that the Claimant is entitled to the gratuity payment, it will be only just for the Honourable Court to also award cost in favour of the Claimant as prayed.

 

In response to the defendant’s arguments, the claimant’s counsel submitted that the purported repeal or cancellation of Exhibit NS7 (assuming without conceding that there was anything like that), did not apply retroactively or retrospectively to adversely affect the accrued gratuity benefits of the Claimant who had left the employment of the Defendant at the time the purported repeal or cancellation of Exhibit NS7 occurred; that by the provision of Section 6(1) (b) and (c) of the Interpretation Act, Laws of the Federation of Nigeria, 2004, the repeal of an enactment shall not affect the previous operation of the enactment or anything duly done or suffered under the enactment; or affect any right, privilege, obligation or liability accrued or incurred under the enactment; that the averment in a pleading and evidence that could substantiate a fact is not a matter of quantum or but that of quality, hence the Claimant does not have to make a lengthy or verbose pleading and depositions as to the prevailing rate of interest for her averment and evidence to that effect to be acceptable. He cited the case of Kano Textile Printers Plc. v. Tukur (1999) 2 NWLR 78 at 84 Para. D.

 

On the defendant’s Reply on point of law, counsel submitted that the arguments in the Claimant's Final Address, which only attempt to supplement/supplant her pleadings and evidence in this suit, fall outside the scope of adjudication as they do not form part of the issues for determination in this suit; that having satisfied the statutory conditions under Section 84 of the Evidence Act, Exhibits NS22 and NS24 are admissible as cogent proof of their contents; that the Claimant cannot make arguments outside the ambit of the case which she presented before the Honourable Court and cannot, at final address, introduce a case different from the case made out in her pleadings as her Counsel's submissions are no substitute for pleadings. He cited the case of Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364, 395-6, 403-4, 417.

  

That whether or not the Claimant was cross-examined on the issue is irrelevant, as cross-examination by the Defendant's counsel does not replace the duty placed upon the Claimant to prove her entitlement to interest.

 

I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final addresses in this matter. The issue for determination is:

 

Whether the claimant is entitled to the reliefs claimed.

 

A summary of the facts herein will reveal that the claimant was initially in the employment of the defunct Magnum Trust Bank Plc before transferring to the defendant as a banking officer by virtue of a merger to form the defendant bank. The claimant later rose to become Assistant manager in the defendant company and resigned her employment effective 1^st December 2020. That her employment was governed by the employee handbook given to her when she joined in 2006 but the defendant on her resignation paid her entitlement without her gratuity citing the new employee handbook that came into effect in 2015. The defendant disagrees with this postulation. In proof of his case the claimant tendered the following documents, Offer of employment (NS1), Transfer of employment (exhibit NS3), Resignation (exhibit NS6), Staff handbook (exhibit NS 7), Salary review (exhibit NS 8, NS9., NS 10, NS 12). NS14), Email (exhibit NS 16), Letter from claimant’s counsel (exhibit NS 17, NS 18), Response from the defendant (NS19, NS 20, NS 21), Letter from HR (exhibit NS22), employee handbook (NS24). The defendant tendered these documents transfer of employment (exhibit NS 23), Employee handbook (NS24), Resignation (NS25), Letters (exhibit NS 26, 27).

 

The claimant in this case was employed by the defendant via a letter dated 4^th April 2000 as an assistant Banking officer and the staff handbook of 2009 in place at the time of employment. Now the claimant tendered exhibit NS6 with the attached letter of resignation which is reproduced below

 

25/11/2020 

 

 Madam, 

              RESIGNATION LETTER 

 

I write to convey my resignation from Sterling Bank Plc. I consider it a privilege to have spent all my twenty years career in Banking with one bank, I appreciate the opportunity I was given to learn and to serve in Sterling Bank.  

 

I wish the bank and all the staff the best as you RUN 

 

 Yours faithfully 

 

 Nkechi stella Ogbonnaya

 

The main issue is claim for gratuity being her entitlement due to the claimant from the defendant. it is clear from the foregoing that the claim herein and which is for determination of the court is simply one for non-payment of gratuity when she tendered her letter of resignation as per exhibit NS6 with the attached letter. 

The sum claimed for gratuity is N10,452,785 04 (Ten million, Four Hundred and Fifty-two Thousand, Seven Hundred and Eighty-Five Naira, four kobo) being her accrued gratuity due to the Claimant after resignation. In putting their argument, each party has referred to decisions of this court, but it must be noted that each case is distinct from the other as no two cases are the same. 

 

Going forward with the claimant’s case, the claimant has referred to the date given by DW1 under cross examination to the date the new employee book came into effect and that the date given is wrong. So Dw contradicted herself. The response of the defendant on this is in its reply on point of law is that the defendant’s policies were usually communicated via email using the address and having contradicted herself the court ought to reject the evidence , The claimant equally made the same mistake in exhibit NS17 when the learned counsel in his letter to the defendant dated 30^th January 2023 referred to the gratuity outstanding as N8, 830, 000 but corrected same in exhibit NS18 and inserted N11, 069, 751. 30k. The fact is where there is correction and the other documents reflect the correct situation, the court will note same. The duty of the court is to do substantial justice to all parties before it.  See AUL-2-Kala global Resources Ltd & Ors v Surafad Petroleum Limited (2021) LPELR -56826 CA.  Presently the courts are moving away from the era of technical justice to one of doing substantial justice.  See Minjibir & Anor v Minjibar & Ors 2008 LPELR -4486(CA).

        

The claimant’s submission is that while in magnum bank her gratuity was calculated to be N396, 289 and same was paid as part of her total sum of N6, 300, 321, while her total gratuity entitlement was N10, 452, 785,04 and that she was never informed or issued with any other staff handbook by the defendant except its staff handbook exhibit NS7. The position of the law as stated by the claimant’s counsel is the elementary principle of law that whoever asserts any particular fact bears the burden of proving the assertion and relied on Famuroti v Abeke (supra). In labor relations, the burden is on the claimant who claims monetary sums to prove not only the monetary sums but how he came by the quantum and proof is by reference to document. See Ajayi & Ors v Faseemo & Ors (2022) LPELR-57798 (CA).  From the claimant’s case vis- a vis the defendant’s assertion that the defendant’s staff handbook had been changed, she denied same that it was ever changed during her period of employment with the defendant.  In paragraph 4.2.1 of the claimant’s final address, she submits that exhibit NS3 provided in item 2.0 as follows:

 

 

Based on Gratuity policy of magnum Trust Bank Plc, your gratuity entitlement as at 31^st December 2005 amounts to N396, 289. 00

 

This amount shall be transferred to sterling bank at the point of separation from the bank’s employment, your final gratuity entitlement shall be calculated based on the addition of 

 

Entitlements at as December 31 2005 as indicated above 

And additional sums calculated as Gratuity for the period of employment in sterling bank with effect from January1 2006 based on sterling banks policies in respect of gratuity. 

 

That exhibit NS7 also provided for the defendant’s separation benefit scheme to show the claimant is entitled to gratuity payment and that the reason for the defendant opposition to the claimant’s claims is because there are no provisions for gratuity. To the defendant, the claimant made heavy weather in her final address on the point that the 2006 handbook was never replaced but failed to prove same. The claimant’s counsel contends that having spent more than the 5years eligibility period for payment of gratuity she is entitled to enjoy the benefit of clause 13.2.1 (ii) of the defendant’s staff handbook which is 

 

In order to be eligible for gratuity payments, you would have spent a minimum of five years in the bank’s employment. Your Gratuity payment would be computed on the basis of your total monthly emolument for each completed year of service. 

 

She avers further in paragraphs 15, 16, 21 of statement of fact that: 

 

15.      Starting from the date of the transfer of the Claimant’s employment to the Defendant up till the date of her said resignation, the Claimant’s total emolument for each completed year and the eleven months she spent in the service of the Defendant is computed as follows:

 

            i. 1/1/2006 to 31/12/2006 

 

A.        Year’s emolument of N2,210,000.00 divided by 12 = N184,166.66K 

 

B.        Month’s emolument for the completed year is = N184,166.66K

 

Whereby the figure ‘12’ represents the number of months in a year and the number of months the Claimant was in a particular emolument in the year;

 

1/1/2007 to 31/12/2007

 

A.        (N2,210,000.00 ÷ 12)3 + (N3,668,232.00 ÷ 12)8 + (N4,119,343.93K ÷ 12)1

 

B.        N552,500.00 + N2,445,488.00 + N343,278.66K = N3,341,266.66K.

 

C.        Month’s emolument for the completed year is N3,341,266.66K ÷ 12            =         N278,438.88K.

 

Whereby the figure ‘12’ represents the number of months in a year and the figures ‘3’ ‘8’ and ‘1’ represent the number of months the Claimant was in a particular emolument in the year;

 

1/1/2008 to 31/12/2008

 

A.        Year’s emolument of N4,119,343.93K divided by 12 = N343,278.66K

 

B.        Month’s emolument for the completed year is the sum of N343,278.66K.

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was in a particular emolument in the year;

 

1/1/2009 to 31/12/2009

A.        Year’s emolument of N6,001,595.00 divided by 12 =    N500,132.92K

 

B.        The month’s emolument for the completed year is the sum N500,132.92K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of month(s) the Claimant was on a particular monthly emolument in the year; 

 

1/1/2010 to 31/12/2010

 

A.        Year’s emolument of N6,001,595.00 divided by 12 =    N500,132.92K

 

B.        The month’s emolument for the completed year is the sum N500,132.92K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of month(s) the Claimant was on a particular monthly emolument in the year; 

 

vi. 1/1/2011 to 31/12/2011

 

A.        Year’s emolument of N6,001,595.00 divided by 12 = N500,132.92K

 

B.        Month’s emolument for the completed year is the sum of N500,132.92K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

vii. 1/1/2012 to 31/12/2012

 

A.        (N6,001,595.00 ÷ 12)5 + (N11,206,748.26K ÷ 12)7

 

B.        N2,500,664.58 + N6,537,269.82K = N9,037,934.40K.

 

C.        Month’s emolument for the completed year is N9,037,934.40K ÷ 12            =         N753,161.20K.

 

Whereby the figure ‘12’ represents the number of months in a year and the figures ‘5’ and ‘7’ represent the number of months the Claimant was in a particular emolument in the year;

 

viii. 1/1/2013 to 31/12/2013

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

1/1/2014 to 31/12/2014

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

1/1/2015 to 31/12/2015

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

1/1/2016 to 31/12/2016

 

A.        N11,206,748.26K ÷ 12 =           N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

 

1/1/2017 to 31/12/2017

 

Year’s emolument of N11,206,748.26K ÷ 12 = N933,895.69K

 

Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

1/1/2018 to 31/12/2018

 

A.        Year’s emolument of N11,206,748.26K ÷ 12 = N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

1/1/2019 to 31/12/2019

 

A.        Year’s emolument of N11,206,748.26K ÷ 12 = N933,895.69K

 

B.        Month’s emolument for the completed year is N933,895.69K

 

Whereby the figure ‘12’ represents both the number of months in a year and the number of months the Claimant was on a particular emolument in the year;

 

1/1/2020 to 31/11/2020

 

A.        Year’s emolument of N11,206,748.26K ÷ 12 = N933,895.69K

 

B.        Month’s emolument for a completed year is N933,895.69K

 

Emolument for 11 months period is 11/12 × N933,895.69K

(i.e. 0.92 × N933,895.69K) = N856,071.05K

 

Whereby the figure ‘12’ represents the number of months in a year and the figure ‘11’ is the number of months the Claimant was on a particular emolument in the year;

 

16.      Based on a summation of the figures of monthly emoluments as computed in paragraphs 15(i) to (xv) above, the total gratuity entitlement due the Claimant for the duration of her employment with the Defendant in the circumstance amounted to the sum of N10,452,785.04K (Ten Million, Four Hundred and Fifty-Two Thousand, Seven Hundred and Eighty-Five Naira, Four Kobo).

 

21. The said breakdown of the total entitlement purportedly due the Claimant and her said indebtedness to the Defendant did not mention or contain any item of payment due the Claimant as her accrued Gratuity, and the Claimant has not been paid the Gratuity due her by the Defendant till date, notwithstanding the fact that the Claimant was in the employment of Magnum Trust Bank Plc. and the Defendant for 20 (twenty) years and 8 (eight) months without blemish before resigning from the employment.

 

The defendant’s response to this is that it did not fail nor neglect to compute the claimant’s gratuity period covering the period as the claimant was paid the sum of N396, 289. 00 being sums carried over as gratuity entitlement from Magnum Trust bank Plc alongside her other terminal benefits as determined by the defendant. Another area which has raised a similar discontent by the claimant is that the defendant stated that the claimant received the mail as all mails were received by the staff. Under cross examination:

 

Question: Do you know the email address of the defendant, is it safe to say that all employees are recipients of email sent. Were you a recipient for same 

 

Answer: Yes    

 

Question: When an email is sent and whether an employee reads it or not that policy must take effect 

 

Answer: Yes 

 

Having acknowledged that emails sent whether read or not, the policy takes effect. has the claimant proved entitlement of her gratuity by the reason that no email was sent to that effect?

The defendant disagrees and submits that exhibit NS7 employee handbook is no longer relevant as the new employee handbook of 2015 is what guides the parties’ relationship. On the issue of which of the employee handbooks guides the relationship of the parties as the claimant and the defendant tendered two employee handbooks, this has to be determined by the court for it is on that basis the issue of entitlement will be determined or otherwise. The claimant tendered exhibit NS7 while the defendant tendered exhibit NS24. While the claimant is relying on a repealed provision of 2006 staff handbook and as at the time the claimant resigned it was the 2015 staff handbook that was active and effective.  The defendant further submit that as at the time of the claimant’s resignation, the five (5) years gratuity entitlement as contained under clause 13.2.1 of the 2005 staff employee handbook was no longer applicable as the management had communicated by email of 21^st September 2015 to all employees and which has been expunged from the defendant’s handbook.

 

In the consideration of whether the employer is allowed to alter the conditions of service between the parties but the employee must be notified of the change in the employment contract, I hold that the employee was not duly notified. The principle of law governing contract of employment is akin to that of other contractual obligations is that parties have agreed to, be bound in their relationship by written agreements, such contract must be governed by the terms of the contract. see P.A.N.v Oje (1977) 11 NWLR (pt 530) 625 CA.

 

The thrust of the claimant’s claim is that the employee handbook of 2015 being the revised defendant’s handbook does not govern her relationship with the defendant and cannot remove the outstanding benefits and entitlements.  A close look at exhibit NS7 states under employee handbook and 

 

‘’ at will employee status acknowledgment ‘’ 

 

I understand and agree that ‘additional information and policies may be implemented from time to time by Sterling Bank Plc. This clause is inserted so that there is laid down provision that additional policies may be implemented. The clause does not remove the fact of notification to the employee. The claimant acknowledged payment of entitlement paid by the defendant but stated that based on the 2006 employee handbook (exhibit NS7 she was not paid her full gratuity having worked from 2000 - 2020.   The defendant’s response is that the claimant received the email sent as exhibit NS22 which removed the reliance on gratuity which had hitherto been part of the claimant’s entitlement and same replaced by the new reform in place. In determining where two conditions of service exist on which one governs employment the court in E.C.W.A v Dele (2004) 10 FWLR (pt 230) 297 held 

 

Where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination of appointment. 

 

To hold that it is the one applicable at the time of appointment will mean that if the amended one introduces benefits such as improved conditions of service, which ought to be the case, the employee who was employed before it comes into effect will not take benefit of the same.

 

From the above cited authorities, one point is made clear that where the employer has averred that the new employee handbook is the applicable one, it has a duty to show evidence in support of same. The defendant in paragraph 11 of the statement of defense stated that part of the introductions and policy changes made by the email of 21^st September 2015 included the decision of the defendant to replace gratuity payments with the 10% mandatory pension, scheme contribution of 7.5 % of every employees basic salary, housing and transport allowances to a special fund upon an employees retirement upon designment of an employee who has spent five years and above. The employer has a right to alter, change or review its employee handbook; however, the employee must be notified of its existence. In the consideration of whether the employer is allowed to alter the conditions of service between the parties the court has held in Baba v Nig civil Aviation & Anor (1991) LPELR -692 (SC) the Apex court held that 

 

Therefore, all documents cannot vary unilaterally the terms of employment especially A16& A17. it can only vary the rate of payment of commission but cannot vary the term of payment of commission because what makes the employee choose to stay put in his best. Once it is withdrawn, it knocks the bottom off the contract or deployment 

 

once a right is vested in one party in a contractual situation, it cannot be taken away by the other to the contract except with the consent of the beneficiary.

 

From the above cited authority, one point is made clear that where the employer has averred that the new employee handbook is the applicable one, it has a duty to show evidence in support of same. The defendant has averred that a copy of the 2015 handbook was sent by email to all employees including the claimant. The question is can two (2) employee’s handbooks exist side by side and both govern the employee’s employment; the defendant has urged the court to accept the new policy of additional retirement scheme. part of the mail reads 21^st day of September, 2015. The email stated as follows: 

 

From:            Human Resources 

Sent:  Monday, September 21, 2015 1:00PM 

To:      AIlStaffAllStaff@Sterlingbankng.com 

Subject: The Revised Staff Handbook! Please READ!! 

 

Dear Colleagues 

 

We refer to the Staff Handbook and various revisions in circulation. 

 

Kindly note that all versions of the Sterling Staff Handbook in circulation since January 1, 2006 are hereby declared null. void and of no effect. 

 

Please click the image below to access the revised Staff Handbook Policy as approved by the Board of Directors for your necessary information while we ensure the distribution of individual copies to all staff. 

 

…….

 

……..

            

Human Resource Management Sterling Bank Plc

 

The claimant is claiming for N10, 452, 785.04, as gratuity for the period she worked with the defendant.  she relied on clause 13.2.1(ii) of the defendant’s staff handbook of 2006. The 2015 employee handbook (NS24) under separation benefits and schemes provides thus ‘’ Sterling bank operates a separation benefits scheme (SBS) that includes the pension scheme with details outlined below 

 

13.2   PENSION 

The bank operates a contributory pension scheme for staff in line with the Pension Reform Act (2004) 

 

The claimant is relying on the old employee handbook and wants the court to reject the handbook of 2015; In this case, there is enough evidence pointing irresistibly to the fact that the claimant is not aware of the new employee handbook of 2015, and did not receive the email to all staff on stopping the payment of gratuity to staff who has not worked for 5 years before 2015. To my mind the defendant has a duty to pay the balance of the calculation of the claimant’s gratuity. In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side. It is also trite that the burden of proof of particular facts shift from side to side throughout the proceedings until the issues in contention have been dealt with. See Section 139 of the Evidence Act, See Fayan v UBA 2013 LPELR 20540, Darego v A, G Leventis Nig Ltd & Ors 2015 LPELR -25009. In the instant case, the burden of proving that the claimant was well aware of the new employee handbook at the cessation of her employment lay squarely on the defendant who made the assertion. The undisputed fact before the court is that the claimant’s entitlement which had been conferred by virtue of the employee handbook cannot be taken away.

 

Having considered the entire evidence before me, it is my view that the claimant has discharged the burden placed on her by law to prove entitlement to the sum claimed, the burden now shifts to the defendant to show that all staff were notified. 

 

 

 

 

 

Judgement is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE