IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE, I.S GALADIMA

 

DATE: Wednesday 5th February 2025     SUIT NO: NICN/JOS/17/2021

BETWEEN:

MRS. ELIZABETH OMOWUNMI DADA                                            CLAIMANT

 

AND

 

NIGERIAN ELECTRICITY SUPPLY

CORPORATION (NIGERIA) LIMITED                                              DEFENDANT

 

REPRESENTATION:

·                     

·                     

JUDGMENT:

1.                 The summary of this case is that the claimant began her employment with the defendant on October 5, 2005, as an Administrative and Personnel Manager. Initially hired for a 12-month term, her employment was subject to renewal based on satisfactory performance. Her contract included a clause for a "long service gratuity" after five years of continuous service. In 2007, the defendant's management decided to implement a uniform pension scheme according to the Pension Reform Act, transitioning all employees, including the claimant, to this scheme. Contributions to the claimant's Retirement Savings Account under the pension scheme ceased in 2010 when she reached the retirement age of 55. Her employment was renewed multiple times until it was terminated in 2020. Following the termination, the claimant requested her long service gratuity as outlined in her original and subsequent employment renewal letters. The defendant denied her request, stating that her entitlement to the gratuity was nullified due to her migration to the uniform pension scheme and the contributions she had received in her RSA. After unsuccessful attempts to resolve the matter, the claimant has brought the case to court seeking reliefs as detailed in her complaint.

CLAIMANT’S RELIEFS AGAINST THE DEFENDANT:

2.                 The claimant’s writ of complaint and accompanying processes were filed on 30/3/2021. Within, she seeks the following reliefs:

                                        i.      A declaration that the claimant is entitled to the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand, Nine Hundred and Seventy Naira) only from the Defendant, being amount due to the claimant as long service gratuity.

                                      ii.      An order directing the defendant to pay the claimant the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand, Nine Hundred and Seventy Naira) only, being the amount due to the claimant as long service gratuity

                                   iii.      The sum of N10,000,000 (Ten Million Naira) as general damages.

 

                                   iv.      10% post-judgment interest on the judgment sum until the judgment is liquidated.

                                      v.      Cost of this action.

3.                 The claimant began presenting her case on February 16, 2022, when she testified on her own behalf as C.W.1 and submitted 13 documents, which were accepted as exhibits C1 to C13. Following her testimony, the defendant's counsel conducted a cross-examination, and she concluded her case on June 15, 2022. Additionally, the claimant had on……… submitted exhibit CTC 1, which is a certified true copy of the court's proceedings recorded before Justice P.A. Bassi, who is now a Justice of the Court of Appeal.

4.                 The defendant originally submitted its statement of defense and related documents on November 2, 2021, but these were later withdrawn on February 16, 2022. A new statement of defense was prepared on January 17, 2022, and filed on January 24, 2022. Subsequently, the defendant amended this statement of defense on May 20, 2022, through a motion on notice dated May 12, 2022, and filed on May 18, 2022.

5.                 After receiving the defendant's statement of defense, the claimant submitted a Reply on February 9, 2022. This Reply was subsequently amended by the claimant, with the amended version dated May 26, 2022, and filed on May 27, 2022.

6.                 Subsequently, the defendant began presenting its case on November 3, 2022, with Abraham Adama testifying as DW1, after which the claimant's counsel cross-examined him. Additionally, David Nungi was called in on a subpoena on May 5, 2023, during which he presented exhibit DD1. The defendant concluded its case on that same day.

7.                 At the end of the trial, the defendant's lawyer submitted his final written submissions and arguments on May 31, 2022. Although these were submitted late, they were properly regularized through a motion on notice dated May 30, 2023, and filed on May 31, 2023. The claimant's lawyer submitted his submissions on October 31, 2024, and the defendant subsequently filed their reply on November 22, 2024.

8.                 It is important to note that the trial proceedings, from the start to the finish, were presided over by the previous judge until his elevation to the Court of Appeal. As a result, the parties' counsel agreed to compile a Certified True Copy (CTC) of the trial records to allow them to continue from where the previous judge left off, in accordance with the court's rules permitting such a procedure. Consequently, the final written submissions from the parties' counsel were presented and adopted before this court, on …………… after which this judgment was delivered today.

CLAIMANT’S EVIDENCE:

9.                 The witnesses’ statements on oath from the claimant, dated March 30, 2021, February 9, 2022, and May 27, 2022, disclose that the claimant is employed by the defendant, a limited liability company registered under the Companies and Allied Matters Act, with its registered office located at 10 Barkin Ladi Road, Bukuru, in the Jos South Local Government Area of Plateau State.

10.           The claimant was hired by the defendant as the Administrative and Personnel Manager, as outlined in her employment letter dated October 5, 2005. Her employment was for a renewable term of 12 months, with an initial salary of 150,000 Naira, along with various allowances. These allowances included long service gratuity (payable after five years of continuous service upon termination), housing and domestic staff allowance (10% of basic salary), end of 12 months service gratuity (30% of basic salary), among others.

11.           The claimant began working on November 2, 2005, after accepting the defendant's job offer. Her employment was consistently extended with contract renewals and salary increases. The most recent renewal occurred on November 5, 2018, set to end on October 31, 2020. As a result, the defendant adjusted her salary from N9,836,784.00 (Nine Million, Eight Hundred and Thirty-Six Thousand, Seven Hundred and Eighty-Four Naira) annually to N11,066,382.00 (Eleven Million, Sixty-Six Thousand, Three Hundred and Eighty-Two Naira) annually, as stated in a letter dated May 22, 2020, titled “Confirmation of Basic Salary Review”.

12.           In September 2020, the claimant received a notification via a letter dated September 22, 2020, informing her that her employment would be terminated effective October 31, 2020. Following this, she applied for her annual leave, which the defendant approved through a letter dated September 25, 2020.

13.           The claimant stated that she received a total of N4,527,474.00 (Four Million, Five Hundred and Twenty-Seven Thousand, Four Hundred and Seventy-Four Naira) as compensation for her 12-months of service and other allowances. However, she claimed that she was not given her long service gratuity, which was supposed to be paid upon the termination of her employment.

14.           The claimant sent a letter to the defendant on October 7, 2020, acknowledging receipt of the 12-month service gratuity and requesting the unpaid long service gratuity. In response, the defendant, in a letter dated December 22, 2020, informed the claimant that the internal long service gratuity scheme was discontinued following the government's introduction of the uniform pension scheme. The defendant further explained that its current staff gratuity scheme applies only to employees hired before 2007 who have worked for at least five years, which, according to the defendant, the claimant did not qualify for.

15.           The claimant states that her employment with the defendant was based on contract strictly and was not covered by the Uniform Pension Scheme of the Federal Government, rather it was governed by the terms of the contract, same which was not varied during the term of her service. On this note, the claimant wrote the defendant through her solicitor, to wit: Solomon E. Umoh, (SAN) & Co. vide letter dated 19/1/2021, demanding the payment of the sum of N18,443,970.00 (Eighteen Million Four Hundred and Forty-Three Thousand, and Seventy Naira) Only being the amount due to her as her long service gratuity.

16.           The defendant replied via a letter dated January 28, 2021, in which the defendant's solicitor claimed that the claimant had only worked for two years with the defendant. They further stated that all the claimant’s pension and gratuity for the period between 2005 and 2010 had been paid into her trust fund by the defendant. This payment was ceased once the claimant reached the retirement age of 55.

17.           The claimant stated that the defendant implemented the federal government's pension scheme, and management decided that the long service gratuity scheme would only apply to employees who had been with the company for five years as of June 30, 2007. The claimant, serving as a director, attended the meeting where the long service gratuity was discussed, after which management made its decision.

18.           Nevertheless, the claimant's employment was renewed on November 24, 2008. The renewed contract still included clause 13(e), which stipulates that long service gratuity is payable upon termination of employment after five years.

19.           The claimant stated that the contributions to the RSA account (Trust Fund) were made as an act of goodwill by the late chief accountant, Mr. Sunday Kuforiji, who initiated the offer to the claimant. She expressed interest in the scheme, which was discontinued five years afterwards.

20.           The claimant asserted that her employment was governed by a contract, and the retirement age did not apply to her situation.

21.           As stated earlier, the claimant tendered 13 documents in evidence in this suit. These are:

                                        i.      Defendant’s letter to the claimant, titled “letter in respect of long service gratuity” dated 22/12/2020 (Exhibit C1).

                                      ii.      Letter of termination of contract of service dated 22/9/2020 (Exhibit C2).

                                   iii.      Letter of confirmation of basic salary review dated 22/5/2020 (Exhibit C3).

                                   iv.      Letter of Reply from defendant’s solicitor dated 28/1/2021 (Exhibit C4).

                                      v.      Letter of renewal of contract dated 24/11/2008 (Exhibit C5).

                                   vi.      Letter of renewal of contract dated 2/11/2018 (Exhibit C6)

                                 vii.      Letter from the defendant’s parent company dated 14/1/2021 (Exhibit C7).

                              viii.      Claimant’s RSA Trust Fund account statement (Exhibit C8).

                                    ix.      Letter dated 19/11/2020 (Exhibit C9).

                                      x.      Application for Annual Leave dated 25/9/2020 (Exhibit C10).

                                    xi.      Offer of employment letter dated 19/1/2021 (Exhibit C11).

                                 xii.      Claimant’s solicitor’s letter of demand dated 19/1/2021 (Exhibit C12).

                               xiii.      Claimant’s letter of acknowledgement dated 7/10/2020 (Exhibit C13).

DEFENDANT’S EVIDENCE:

22.            From the defendant’s witness’ statements on oaths deposed to by one Abraham Adama (Defendant’s Human Resource and Administration manager) on 24/1/2022 and 18/5/2022, the defendant admitted that the claimant worked for the defendant until 31/10/2020 when her employment was terminated.

23.           The defendant stated that the long service gratuity scheme of the defendant, which is no longer in existence, was only applicable to employees who had been in employment of the defendant before June 2007. Accordingly, the claimant who joined the defendant sometime in October 2005 was about 2 years in service of the defendant as of June 2007 and not up to 5 years.

24.           According to the defendant, its letter dated 22/12/2020 and its solicitor’s letter dated 28/1/2021 both explained to the defendant the reason she is not entitled to the long service gratuity.

25.           The defendant asserts that the Pension Reform Act of 2004 (as amended) applies to all its employees, with no distinction between contract employment and other types of employment. In 2007, all employees eligible for long service gratuity moved to the Contributory Pension Scheme under this Act. Consequently, the defendant argues that its employees cannot receive both the long service gratuity and benefits from the contributory pension scheme for the same service period.

26.           In 2007, when the claimant was transitioned to the contributory pension scheme, she had not yet completed 5 years with the defendant, making her ineligible for the long service gratuity scheme. Furthermore, the long service gratuity scheme was entirely discontinued on June 30, 2007, as indicated in the minutes from the defendant's management meeting on June 29, 2007.

27.           The defendant asserts that the claimant, who served as a personnel manager and a former director within the company, is aware that the long service gratuity associated with her employment was altered following the adoption of the Pension Reform Act of 2004 (as amended) by the defendant. Additionally, the claimant attended the meeting between the defendant's management and the senior staff association on June 29, 2007, where the topic of the long service gratuity scheme was addressed.

28.           As a director, the claimant, along with other directors, approved the implementation of the defendant's long service gratuity scheme, as highlighted in the defendant's annual financial statement dated December 31, 2018. Additionally, the claimant co-signed a letter to the Manager of Zenith Bank Plc on May 25, 2007, which forwarded a First Bank Plc bank draft amounting to N10,722,194.02 (Ten Million, Seven Hundred and Twenty-Two Thousand, One Hundred and Ninety-Four Naira) only. This amount was the accrued contribution to the Trust Fund Account for the defendant’s employees, from which the claimant also benefited.

29.           The defendant asserts that all employee entitlements, such as pension and gratuity, due upon employment termination, are managed by a Pension Fund Administration under a Trust Fund. Employees, including the claimant, whose employment has ended, have their retirement savings accounts with this Pension Fund Administration. A certain percentage is contributed to these accounts, and disbursements are made from them upon the employee's retirement or reaching the age of 55.

30.           The defendant stated that the claimant's Trust Fund account number is PEN 200144292414, established on May 23, 2007. They also noted that the claimant reached retirement age in 2010 while still employed by the defendant. Despite being aware that the long service gratuity scheme no longer applied, the claimant did not address clause 13(e) in her employment contract with the defendant to align it with the new pension scheme.

31.           The defendant tendered 4 documents in evidence in this suit. These

are:

                                  i.      Minutes of Meeting dated 29/6/2007 (exhibit D1)

                               ii.      (Exhibit D2)

                             iii.      (EXHIBIT D3)

                             iv.      (exhibit D4).

32.           At the conclusion of trial, the parties’ counsel filed their respective final written addresses as ordered by the court whereupon they were adopted by them on……..

DEFENDANT’S COUNSEL’S SUBMISSIONS AND ARGUMENTS:

33.           As mentioned previously, the defendant's counsel submitted his final written submissions and arguments on May 31, 2022. In these submissions, he identified a single issue for the court's consideration and resolution, which is framed as follows: “is the claimant entitled to long service gratuity in the sum of N18,443,997.00 or any other relief she claims after she migrated to and benefited from contributory pension scheme introduced by the Federal Government”.

34.           Regarding this sole issue, counsel argues that the central matter of this case revolves around clause 13(e) of the claimant’s appointment letter (Exhibit C11), which outlines the provision for long service gratuity. The claimant's counsel further asserts that the status of the long service gratuity was altered with the introduction of the Pension Reform Act of 2004. This Act led the defendant's management to decide to transition employees to the contributory pension scheme, as evidenced in Exhibit D1 (Minutes of Meeting). Once incorporated into the employees' contracts, this decision became binding on them. Counsel references the cases of SALAMI V. UNION BANK (2010) LPELR-8975 (CA) and ABALOGU V. SPDC Ltd (2003) 13 NWLR (PT 837) 308 AT 337 for support.

35.           The defendant's counsel further argues that since the claimant participated in the meeting where the decision to transition to the Pension Reform Act was made, she effectively consented to this migration, thereby altering the terms of her contract. According to the counsel, this consent aligns with Section 39(1) and 39(1)(d) of the Pension Reform Act 2004, which allows employees the option to join the scheme under the Act. The case of EKWUNIFE V. WAYNE WEST AFRICA LTD (1989) LPELR-1104 (SC) was cited to support the argument on the principle of modifying a contract through mutual agreement.

36.           Concerning the principle of contract variation, the learned counsel argues that paragraph 13(e) of the claimant’s employment letter was modified with her agreement when she accepted the Trust Fund scheme and benefited from it by receiving payments from her Pension Fund Administrator after reaching the retirement age of 55. The counsel contends that the claimant should be prevented from asserting a claim regarding clause 13(e) of exhibit C11. This is supported by the authorities of MAI-ANGWA (2018) 15 NWLR (PT. 1643) 431 at pages 443-444, paragraphs H-A; and AFRIBANK NIG PLC V. ABUEBUNWA (2012) 4 NWLR (PT. 1291) p. 574, paragraphs F-H.

37.           Regarding the claim of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand, Nine Hundred and Seventy Naira) made by the claimant, the defense counsel argues that even if the claimant were entitled to the long service gratuity, she failed to provide evidence supporting her claim to this amount. The counsel also points out that the claimant did not demonstrate how she calculated the sum she is claiming. According to the defense counsel, the responsibility to prove both the entitlement and the calculation of the amount lies with the claimant, which she did not fulfill. Therefore, the court cannot grant the monetary relief requested. This position is supported by the cases of ADEBIYI V. CHIEF REGISTRAR, HIGH COURT OF JUSTICE, KWARA STATE (2017) LPELR-45672 (CA) PAGE 23-23 PARA. D-A; and NIGERIAN BREWERIES PLC V. ADETOUN OLADEJI (NIG) LTD (2002) 15 NWLR (PT. 791) 589 P. 632-633 PARA. G-A. He finally urges this court to dismiss the claims.

CLAIMANT’S COUNSEL’S SUBMISSIONS AND ARGUMENTS:

38.           The claimant’s counsel filed his written submission dated 29/10/2024 and filed on 31/10/2024. Within, he formulated 2 issues for determination by this court as follows:

“a. whether having regard to the nature of the employment of the claimant, which is an employment under contract renewable only upon satisfactory performance, the defendant can go outside the terms and conditions of the said contract?

 

b. whether from the facts and circumstances of this case and the evidence adduced, the claimant has proved that she is entitled to the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) only being the amount due to her as long service gratuity from the defendant.”

39.           Regarding the first issue, the claimant's counsel argued that the claimant's employment is not permanent; it is determined by a contract that is renewable every two years based on satisfactory performance, rather than ending upon reaching retirement age or due to misconduct. Further discussing the nature of the claimant's employment, the counsel referenced the case of DIAMOND BANK V. UNAKA & ORS (2019) LPELR-50350 (CA) to support the view that contract employment involves hiring an employee for a specific job at a set rate, who does not become a regular part of the staff and is not considered a permanent employee.

40.           The counsel referenced exhibit C11, arguing that the clauses in the claimant's employment letter indicate that her employment is contractual and not permanent or pensionable. The counsel further contends that the terms of the claimant's employment remained unchanged throughout her 15-year tenure with the defendant. Additionally, the counsel pointed out that the claimant was already 50 years old when employed, and exhibit C5 (a letter of employment renewal dated 24/11/2008) confirms that the entitlement to long service gratuity was still included in the employment terms even after transitioning to the Uniform Pension Scheme.

41.            The counsel cites the case AMINU ISHOLA INVESTMENT LTD V. AFRI BANK NIG PLC (2013) LPELR-20624 (SC) to argue that parties are obligated to adhere to the terms of a contract they have willingly entered into, and the court's role is to enforce that agreement. Additionally, the claimant's counsel argues that any changes to a written agreement must also be documented in writing, referring to the cases of CBN V. IGWILLO (2007) LPELR-835 (SC); BIJOU (NIG) LTD V. OSIDAROHWO (1992) 6 NWLR (PT. 249) 643 AT 649.

42.           The claimant's counsel argues that the minimal contributions made to the trust fund on the claimant's behalf do not automatically classify her as pensionable staff. This argument is further supported by the inclusion of clause 13(e) in subsequent contract renewals, which reaffirms the claimant's entitlement to long service gratuity. He therefore urges the court to grant the claimant’s reliefs as sought.

43.           Regarding the second issue, the learned counsel argues that the claimant has adequately demonstrated her entitlement to the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) as her long service gratuity. This is based on the fact that her contract had been renewed for 15 years before termination. As outlined in exhibit C11, she qualifies for long service gratuity after five years of continuous service, and this clause is also present in the subsequent contract renewals, as shown in exhibits C5 and C6.

44.           The claimant's counsel argues that the claimant's attendance at the meeting where the transition to the Uniform Pension Scheme was discussed does not alter the written contract terms. The contract between the claimant and the defendant is documented in writing, and neither party can deviate from these terms. Additionally, the terms of a written contract, as in this case, cannot be implicitly modified. The counsel referenced the authority of CBN V. IGWILO (SUPRA) to support this argument.

45.           The claimant's learned counsel points out that DW1’s employment is described as regular, indicating that DW1 is in a different employment category than the claimant. The counsel argues that while DW1’s employment falls under the Uniform Pension Scheme, the claimant’s employment is governed by the terms of her contract as contract employment. Additionally, the counsel highlights that DW1, during cross-examination, acknowledged that individuals over the retirement age of 55 are employed by the defendant on a contract basis.

46.           Regarding the application of section 39(1) of the Pension Reform Act, 2004, the claimant's counsel argues that the Act does not apply to the claimant because she was not a regular employee of the defendant with pensionable employment. The counsel also contends that the terms of the contract between the claimant and the defendant cannot be modified by external evidence, citing the authority of LAYADE V. PANALPINA WORLD TRANSPORT NIG. LTD (1996) LPELR-1768 (SC).

47.           Regarding the matter of estoppel, the learned counsel argues that the claimant cannot be subjected to the principle of estoppel simply because money was deposited into her account without further context. The counsel further contends that the contribution made to the claimant's account was done out of goodwill from the defendant's previous accountant.

48.           The learned counsel argues that the claimant is entitled to N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira), calculated as 20 months of her final salary, based on the long service gratuity provision in her employment contract.

49.           The counsel argues that the claimant did not retire after reaching the retirement age of 55, as specified in the defendant's handbook (clause K), because she was not a permanent employee and therefore not eligible for a pension. The counsel contends that the defendant's refusal to pay the claimant her contractual entitlements constitutes a breach of contract, warranting the award of general damages. The counsel cited the authority of S.B.N V. C.B.N (2009) 6 NWLR (PT. 1137) 237.

50.           The learned counsel directs the court's attention to the contents of exhibits C11, C5, C3, and C13, arguing that the claimant has fulfilled her burden of proof to qualify for the reliefs requested in this case, and encourages the court to grant the claimant's requested reliefs.

51.           Earlier in this case, the court noted that the defendant submitted a Reply to the claimant's final address, both dated and filed on November 22, 2024. I have reviewed the arguments presented in this submission and will refer to them if necessary.

COURT’S DECISION:

52.           I carefully reviewed the written submissions filed by both attorneys in accordance with the issues they raised for determination. The court believes that the two issues formulated by the claimant's counsel are more relevant and central to resolving the key matters in this case. These two issues are adopted but have been rephrased as follows:

                                  i.      Considering the evidence presented to this court, is the claimant entitled to receive a "long service gratuity" from the defendant?

                               ii.       whether, based on the facts, circumstances, and evidence presented in this case, the claimant has demonstrated that she is entitled to the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) as the long service gratuity owed to her by the defendant.

ISSUE ONE

53.           Before the court's decision, I would like to reiterate a well-established principle in our legal system, which I believe merits ongoing emphasis. This principle states that anyone seeking a court judgment regarding a claimed legal right or liability based on certain facts must provide proof that those facts exist, as outlined in Section 131 of the Evidence Act 2011.

54.           Furthermore, it is important to note that the responsibility to provide evidence in a legal case falls on the person who would lose if no evidence were presented by either party, as stated in Section 132 of the Evidence Act. It is also essential to highlight that this burden of proof must be met based on the balance of probabilities in all civil cases, according to Section 134 of the Evidence Act, as established in the cases of ONOBRUCHERE V. ESEGINE (1986) 1 NWLR (Pt.19) 799 and OJOMO V. DEN (1987) 4 NWLR (Pt. 64) 216.

55.           In this case, the claimant presented Exhibit C11 (her employment letter) and heavily relied on it as the primary contractual document governing her relationship with the defendant throughout the relevant period. Clearly, the accurate interpretation and application of the contents of Exhibit C11 are central issues in this case. Notably, the significance of the appointment letter is crucial in this type of employment, which is contractual in nature. The decision in UNION BANK OF NIGERIA LTD V. OGBOH (1995) 2 NWLR (PART 380) 467 AT 664 is particularly relevant in shedding light on this point and deserves to be clearly quoted as follows:

Except in employments governed by statutes wherein the procedure for employment and discipline (including dismissal) of an employee is clearly spelt out,(sic) any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant…” (underlined for emphasis).

56.           Based on the evidence presented to the court, paragraph 13(e) of Exhibit C11 is central to the legal dispute between the parties in this case. I find it appropriate to quote paragraph 13 from the claimant's Offer of Employment letter (Exhibit C11), which states:

“13. The starting salary offered is 150,000 per month basic. In addition, the following allowances will apply.

a. Housing and domestic staff allowance 10% of basic salary paid each month

b. End of 12-month service gratuity 30% of basic salary pro rata at the end of 12 months

c. year-end productivity bonus paid in December each year and based on 12 month service minimum 1-month’s basic salary, maximum based on company’s productivity 2-months salary.

d. Combined hazard and meal allowance of N3,000 per month paid monthly.

e. long service gratuity payable on termination of employment after 5 years continuous service based on current scale.

f. Leave travel allowance of N125,000 per annum.

g. a minimum cover of N100,000 Life Insurance will be taken out in your favour to cover death in service up to normal retirement age of 55 years. (underlined mine for emphasis).

57.           It is crucial to note that paragraph 2 of Exhibit C11 states, the contract of service initially lasts for 12 months and can be renewed, contingent upon satisfactory performance. Evidence indicates that the claimant's service was periodically renewed until it was ultimately terminated. Exhibit C5, dated 24/11/2008, is the claimant's contract renewal letter, clearly showing that the terms of service, particularly concerning Paragraph 13(e) on long service gratuity, remained unchanged. Similarly, Exhibit C6, dated 2/11/2018, is another contract renewal letter from the defendant, confirming that the terms of service for the claimant stayed consistent during the specified period. These documents clearly demonstrate that the terms of service for the claimant, particularly regarding long service gratuity, were preserved and maintained throughout her employment.

58.           I would like to acknowledge the interpretation principle which asserts that when the language in a document is clear and straightforward, the court should interpret it in its ordinary or literal sense. Only if the literal interpretation results in absurdity or does not reflect the intention of the lawmaker should a more interpretive approach be considered. This was highlighted in the case of KANO STATE PUBLIC COMPLAINT AND ANTI-CORRUPTION COMMISSION V. SALISU & ORS (2019) LPELR-47107 (CA) P. 22-24, PARAS. D-C.

59.           This court has previously noted that paragraph 13(e) of the claimant’s employment offer letter clearly stipulates that the claimant is entitled to a long service gratuity. It is also evident that the meeting documented in exhibit D1 (Minutes of the Senior Staff and management of the defendant) occurred on 29/7/2007, whereas exhibit C5 (letter of service renewal) was issued on 24/11/2008. Clearly, more than a year after the decision to transition employees to the Pension Reform scheme, the claimant’s renewal letter (exhibit C5) still indicates "no change" regarding the entitlement to long service gratuity. I disagree with the defendant's counsel that the shift to a uniform pension scheme was incorporated into the claimant’s employment contract. There is no evidence before this court suggesting even slightly that any subsequent service renewal letters indicated the removal of the long service gratuity from the claimant’s entitlements. Inferring such a change now would essentially mean altering the terms of the claimant’s employment offer with the defendant.

60.           Before moving forward, I would like to emphasize the importance of the principle "pacta sunt servanda" – which means agreements must be honored. Consequently, since no other contractual documents have been presented in this court and given their unchallenged admission as evidence, exhibits C11, C5, and C6 will be given full evidential weight and significance in resolving the matter of the long service gratuity claimed by the claimant.

61.           It is indeed true that a meeting took place between the defendant's management and the Senior Staff Association on June 29, 2007, where it was decided to freeze the long service gratuity for current staff. The claimant acknowledged her attendance at this meeting. Exhibit D1 contains the minutes from this meeting. Under the topic "Upward Review Gratuity," the minutes state:

“The Association requested upward review of gratuity. management stated that since the recent introduction of the New Pension Reform Act, the Long Service Gratuity was no longer necessary as the new act provides for both pension and generous long Service Gratuity. Because of this the company was going to freeze the present Long Service Gratuity Scheme and discontinue it with effect from 30th June, 2007. For any new employee joining after 30th June 2007 he would no longer be eligible but existing employee right and benefits would be frozen at present levels of benefits.”

62.           The defendant characterizes the aforementioned decision as a shift from the Long Service Gratuity Scheme to the Uniform Pension Scheme outlined in the Pension Reforms Act. The defendant explicitly stated that the claimant is not eligible for long service gratuity because contributions were made to her Retirement Savings Account. The claimant benefited from the Uniform Pension from 2007 until her retirement in 2010, when she turned 55.

63.           Exhibit C8 is the claimant's RSA statement, which provides a detailed account of the contributions and other transactions in the claimant's RSA. The claimant, however, prefers to describe these contributions as being made "out of goodwill." I must admit that the court does not fully understand what the claimant means by "out of goodwill." Nevertheless, it is clear to me that the claimant's RSA had contributions that the claimant accepted and benefited from.

64.           The defendant argued that the claimant did not inform them of the discrepancy between her contract renewal letters and the current uniform pension scheme. However, I find this defense unconvincing. The reality remains that while contributions were being made to the claimant's RSA, her entitlement to long service gratuity was consistently confirmed in her contract renewal letters until her employment was terminated. It is reasonable to consider that the claimant genuinely believed there was no cause for concern, as her entitlement to the gratuity was continually affirmed by the defendant in her employment renewal letters.

65.           The claimant asserted strongly that her employment with the defendant was distinct because it was a contract-based role rather than regular employment. Exhibit C11 clarifies this by stating: the contract of service initially lasts for 12 months and is renewable, contingent upon satisfactory performance. I have no doubts about the distinct nature of this employment type; it differs from regular employment in several ways. One key difference is that, in a contract of service like this case, employment is not typically influenced by retirement factors such as age or years of service. Instead, it concludes upon the contract's expiration or other conditions explicitly stated in the employment letter.

66.           In conclusion on the current issue for determination, I wish to stress that, based on the evidence presented to this court, stating that the claimant is entitled to a long service gratuity is simply acknowledging the obvious. It's important to note that at the end of each of the claimant's contract terms with the defendant, the defendant had the opportunity to review and modify the contract terms for the subsequent tenure extension. Since the defendant did not remove the provision for long service gratuity from the claimant's various contract renewal letters throughout her 15 years of service, but instead maintained it, this court will not alter that contract term, and I so hold.

67.           Furthermore, I would like to point out that the principles of estoppel and variation presented by the defendant's counsel do not hold up against the clear and explicit terms of the claimant's contract, which were upheld in the various letters of service renewal, particularly in Exhibits C5 and C6. Consequently, the claimant is entitled to a "long service gratuity," and I affirm this.

 

ISSUE TWO

68.           This issue aims to establish whether, based on the facts, circumstances, and evidence presented in this case, the claimant has demonstrated that she is entitled to the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) as her long service gratuity from the defendant.

69.           The defendant's counsel argued that the claimant failed to present credible evidence to support her claim of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) as unpaid long service gratuity. Citing the case of SMITHKLINE BEECHAM PLC V. FARMEX LTD (2010) 1 NWLR (PT. 1175) 306 PARA. A-D, he emphasized that a monetary award cannot be granted without the claimant providing material evidence for its assessment. On the other hand, the claimant's counsel argued that the document outlining the gratuity calculation scale was included in Exhibit C13 submitted by the claimant. The defendant's counsel countered by stating that the document in Exhibit C13 was merely presented to the court without being specifically addressed by the claimant's witness.

70.           In our legal system, it is well-established that monetary claims must be explicitly stated and supported by credible evidence. This principle is highlighted in ADEBIYI V. CHIEF REGISTRAR, HIGH COURT OF JUSTICE, KWARA STATE (SUPRA). It stems from the general rule that the responsibility of proof lies with the party who asserts a claim. This is often captured by the Latin phrase, "Ei qui affirmat, non ei negat, incumbit probatio," meaning the burden of proof rests with the one who affirms, not with the one who denies. In this context, it implies that the claimant is responsible for proving her entitlement to the amount claimed as her long service gratuity.

71.           Having reviewed the claimant's pleadings and evidence, I have yet to find any reference to the document detailing the current scale for calculating long service gratuity. It is important to note that the claimant needs to show how she arrived at the amount she claims as her long service gratuity. According to paragraphs 9 and 10 of the claimant’s statement of fact, her basic salary was increased from N9,836,784.00 (Nine Million, Eight Hundred and Thirty-Six Thousand, Seven Hundred and Eighty-Four Naira) annually to N11,066,382.00 (Eleven Million, Sixty-Six Thousand, Three Hundred and Eighty-Two Naira) with her latest contract renewal. Additionally, paragraph 5 of DW1’s statement on oath dated 9/2/2022 indicates that the claimant is entitled to long service gratuity based on the current scale.

72.           The document mentioned by the claimant's learned counsel is included with Exhibit C13 (the Claimant’s letter of acknowledgment dated 7/10/2020). Exhibit C13 and its attachments are duly presented before this court. The attachment highlighted by the claimant’s counsel as containing the current gratuity scale is a one-page document with two headings, “gratuity” and “retirement” (paragraphs (j) and (k), respectively). The claimant’s counsel asserts that this document originates from the defendant’s handbook.

73.           While I agree with the defendant's counsel that documents should not simply be presented without context and that a lawyer's address is not considered evidence, I am also committed to ensuring substantial justice is served. This court has the authority to examine documents in its file and use them to resolve issues in the case. In FUMUDOH V. ABORO (1991) 9 NWLR (PART 214) 2010 AT 229, it was established that this approach is permissible. In this particular case, the document in question was submitted alongside exhibit C13 without any objections, and the defendant has not rejected its validity. Furthermore, the document's content speaks for itself, as cited in A.G BENDEL STATE v. U.B.A ltd (1986)4 NWLR (PART 37) 547 and AKINBISADE v. THE STATE (2006) 17 NWLR (PART 1007)184 SC.

74.           The document, attached to exhibit C13, includes the following excerpt:

“(j) GRATUITY

A gratuity will be paid to each employee retiring from the corporation’s service, in accordance with the following rules.

An employee who retires for any reason, excepting termination due to his misconduct, and who has completed a continuous period of five years or more of satisfactory service with the corporation will receive a gratuity calculated in accordance with the under-mentioned table:

PERIOD OF SERVICE               RATE OF GRATUITY

5 __________________________ 6 MONTHS

6 ___________________________7

7 ___________________________8

8 ___________________________9

9 __________________________14

10 _________________________15

11 _________________________16

12 _________________________17

13 _________________________18

14 _________________________19

15 _________________________20…

The gratuity calculated will be based on the years of service up to the corporation’s normal retirement age.

(K) RETIREMENT

The corporation will retire employee from the service of the corporation upon attaining the age of 55 years”.

75.           It is a well-known fact to both the claimant and the defendant that the claimant served under the defendant continuously for a period of 15 years. Consequently, the claimant's legal counsel argues that the amount of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) claimed as long service gratuity is calculated by applying the latest monthly salary of the claimant to the 20 months gratuity scale. I am aware that the referenced document indicates that "The gratuity calculated will be based on the years of service up to the corporation’s normal retirement age," and it also specifies that the retirement age for the corporation’s employees is 55 years.

76.           The facts presented before this court indicate that there is no disagreement regarding the claimant reaching the age of 55 in 2010, at which point contributions to her RSA ceased. Refer to Paragraph 20(d) of CW1's statement on Oath dated 9/2/2022 and CW1’s cross-examination. By 2010, when the claimant turned 55, she had completed only 5 years of service. It seems that the document the claimant allegedly used to calculate the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) lacks clarity, as the computation based on this document does not justify the claimed amount. For instance, it is unclear how the claimant determined the monthly salary for the 20 months.

77.           It is also noticeable that if the claimant's calculation covers a period of 20 months, it indicates that she accounted for her 15 years of service with the defendant, rather than the retirement age explicitly mentioned in the referenced document (attachment to exhibit C13). In other words, the claimant based her calculations on the termination of her contract in 2020, rather than the retirement age of 55 years. It is important to reiterate that the document the claimant relied on (the attachment to exhibit C13) states, “The gratuity calculated will be based on the years of service up to the corporation’s normal retirement age.” Therefore, the court believes that the claimant did not successfully prove her entitlement to the sum of N18,443,970.00 (Eighteen Million, Four Hundred and Forty-Three Thousand Nine Hundred and Seventy Naira) claimed as her long service gratuity, and this is the court's position, and I so hold.

78.           In conclusion, it is important to highlight that while the claimant has proven her right to long service gratuity, her claim is only partially supported. Therefore, the defendant is hereby ordered to, within 30 days of this judgment, assess and pay the claimant her long service gratuity according to the current scale at the time of her last contract renewal, subtracting any amounts already received from her Retirement Savings Account. Should the defendant refuse, neglect, or fail to comply with this judgment, the total amount owed to the claimant will incur a 5% monthly interest until the judgment is fully executed.

79.           Judgment is accordingly entered. I make no orders as to cost.

 

DELIVERED IN JOS THIS 5TH DAY OF FEBRUARY 2025.

 

Mr. Justice I.S. Galadima,

Judge.

Public access to NICN decisions:

Judgments and reasons for the judgments are published, in full, online at https://nicnadr.gov.ng. NICN decisions are available to the general public shortly after a copy each has been sent to the applicant(s) and respondent(s) in a case.