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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: October 12, 2015 SUIT NO. NICN/OW/24/2014 Between: Mr. Ike Chinedu Opigwe - Claimant And United Bank for Africa Plc - Defendant Representation: U. Nwigwe for the Claimant D. O. Iruakpa for the Defendant JUDGMENT This suit was commenced vide a complaint filed on the 6th day of March 2014 by which the claimant sought against the defendant the following reliefs, to wit: (a) The total sum of N55,870,936.26 (Fifty Five Million, Eight Hundred and Seventy Thousand, Nine Hundred and Thirty Six Naira Twenty Six Kobo) being his: (i) Gratuity in the sum of N27,069,826.32 (ii) Salary in lieu of notice (3 months) N529,539.62 (iii) Leave encashment of 124 working days for 7 years N1,203,734.00 (iv) Redundancy/severance package as per Hand Book of the defendant, 2005 … N27,069,826.32 (b) An Order of court directing the defendant to release/issue to the claimant forthwith, a discharge certificate, acknowledging the termination/severance of the claimant’s appointment of 30th June, 2008. (c) The claimant also claims 35% interest in paragraphs (a) above until judgment is given and 21% interest from the day of judgment until the entire sum is liquidated. Or Alternatively 1. A declaration that the claimant is still in the employment of the defendant and that the claimant is entitled to arrears of salary and other benefits as per paragraph (a) above and from the said 30th June, 2008 The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendants entered appearance and defended this suit by the filing of his amended Statement of Defence and Counter Claim for the sum of N1,508,657.95 (One million, Five Hundred and Eight Thousand, Six Hundred and Fifty Seven Naira, Ninety Five Kobo), being the unpaid loan the claimant took from the defendant, when he was her staff on the1st July, 2014. The defendant also filed along, a list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The case proceeded to hearing on the 2nd day of July 2014. The Claimant testified for himself as CW1, while one Obi Stanley, a banker with the defendant testified for the defendant as DW1. Hearing was concluded by the 3rd day of March, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on the 25th day of March 2015, and the Claimant’s written address was filed on the 9th day of April 2015. Thereafter, the Defendant filed a Reply on points of Law on the 14th day of April 2015. Parties adopted their respective written addresses on the 23rd day of April 2015. Upon the case coming up on the 7th day of July 2015, the date initially slated for judgment, the court in an effort to resolve an issue, asked the Claimant to furnish it with some further documentary evidence to help the court in resolving the said issue. The case was adjourned to the 15th day of July for the required evidence to be taken. It was then adjourned to today for Judgment Pleadings reveal that the facts of this suit are that the claimant was employed by the defendant in 2000, in proof of which, the claimant tendered two employment letters dated 8th July, 2000 and 14th November, 2000. He resigned his appointment with the defendant on the 30th June, 2008. Upon which the claimant sought the relief of his entitlements in form of gratuity and severance package. In the defence counsel’s final written address filed on the 25th day of March 2015, four issues were proposed for determination thus: 1. Whether the proper date of employment of the claimant is 8th day of July 2000 by virtue of Exhibit C1 or 14th day of November, 2000 by virtue of Exhibit C5. 2. Whether the claimant is entitled to his claims if the correct date of his employment is 14th November, 2000 in line with Exhibit C5. 3. Whether the claimant discharged the burden of proof in this matter, to attract judgment in his favour. 4. Whether the defendant is entitled to her counter claim. Arguing the first issue, counsel referred the court to Exhibit C17, the Staff Manual Hand Book, precisely paragraph 8.9 on page 43 of the book. Exhibit C17 has provided two requirements for eligibility to payment of post-retirement benefits. They are the following: 1. That the new policy takes effect from 1st September, 2005 for staff of Old UBA and STB who had not spent up to five years in either bank, Eligibility, permanent staff, minimum of 10 years in service. Exit not through dismissal, then entitlements are stated. 2. For staff of either Band, UBA or STB that had spent up to five years in the bank, on 1st September, 2005. The Old UBA or Old STB policies apply. Counsel submitted that from the foregoing provisions for payment of entitlements, if Exhibit C1 the letter of employment of 8th July, 2000 is found by the court to be the correct letter of employment, the claimant is entitled to gratuity and other post retirement entitlements if he proves them. The reason for the above assertion is that from arithmetical calculation, when Exhibit C1, which is dated 8th July, 2000 is compared with Exhibit C17 paragraph 2.8, which took effect from 1st September, 2005 the claimant will fall within the Old UBA or STB that had spent five (5) years by the time the merger of UBA and STB and the policy took effect on 1st September 2005. On the other hand, if the 2nd letter of employment of the claimant Exhibit C5 dated 14th November 2000 is found by the court to be the correct letter or date of employment, it means that by 1st September, 2005 when the new policy of the defendant took effect, the claimant had not worked for five (5) years in the Old UBA or STB, invariably, meaning that the gratuity and other post retirement entitlements will elude him. It is the contention of counsel that only one letter of employment dated 14th November 2000 was given by the defendant to the claimant and a critical evaluation of the two letters of employment tendered by the claimant reveals the following: 1. That the character of the typing of Exhibit C5 letter of 14th November, 2000 is neater, accurately arranged than that of Exhibit C1, letter of 8th July, 2000. 2. The initials of two signatories on the front page of Exhibit C5 is neat, and accurate while those on the front page of Exhibit C1 are untidy, crooked and resemble initials that were curved or made by someone that looked at the main initial on Exhibit C5 while doing Exhibit C1. 3. On page 2 where the signatures of the Principal Manager, Recruitment and Manager Recruitment appear, the signatures of Idris Nyam and Richard Oshungboye on Exhibit C5 are neat and clear while the ones on Exhibit C1 are not the same with those on Exhibit C5. They even look like cloned or traces by persons that are not the original owners of the signatures. 4. Exhibit C5, shows clearly that, the claimant, in acceptance of the offer letter, wrote his full names, signed his signature and dated it 21st November, 2000. Counsel urged the court to consider the above 4 features based on the doctrine of res ipsa loquitur, and hold that Exhibit C5 is the correct letter and date of employment of the claimant, it is the law that documentary evidence is the best evidence, as was held by the Supreme Court in Egharevba vs. Osagie (2009) 12 SCNJ P. 188. It is the contention of counsel that the signatures in Exhibits C2, C3, C4 and C7, tendered by the claimant are not very clear and sharp as the signatures in Exhibit C5. Also that Exhibit C6 and C7 were made by the claimant for purpose of this case. The reason for the assertion is that Exhibit C6 is a Memorandum not a letter, as referred to in Exhibit C7 and the signature in Exhibit C7 is not very clear. A different anchor for the contention of counsel in this regard is, that it is inconceivable to believe the claimant’s averments that within six months of his employment, whilst he was a junior staff on probation could by way of memorandum, address an important issue to the Principal Manager, Recruitment/Placement, who then replied by a letter with reference number to the claimant, to purportedly confirm that the claimant’s date of employment by management decision is based on employment letter dated 8th July, 2000. More so, the management of the defendant does not deliberate on the employment of junior staff, which is not management staff. To further confirm that the date of employment of the claimant is 14th day of November, 2000 and he accepted the employment on the 21st day of November, 2000, counsel referred to the following documents: 1. Exhibit D1, Staff Training Bond dated 21st day of November. 2000; 2. Exhibit D2, Concession to Assume Duty dated 21st November, 2000 3. Exhibit D3, Declaration of Secrecy dated 21st day of November, 2000 4. Exhibit D4, Password Secrecy Undertaking 2000, Assumption of Duty 5. Form dated 21st November, which is Exhibit C23 and also Exhibit D8, 6. Exhibit D7 is Concession to Assume Duty dated 19th March, 2001. The above listed exhibits are documents signed by the claimant and the dates from these documents are a few days after the claimant’s date of employment on the 14th day of November, 2000. In Egharevba vs. Dr. Osagie (Supra) P. 166 at P. 188 the Supreme Court held that documentary evidence is the best proof of the contents thereof, and he urged to place reliance on the Exhibits cited above and hold that the correct date of employment of the claimant is 14th November, 2000. The claimant relied on his memorandum of December 6th 2000 Exhibit C6 and the purported reply letter of the defendant of April 10th 2001, Exhibit C7, but in Exhibit D5 which is Retirement Benefit Scheme (African Staff) completed personally by the claimant on 19th August 2002, the claimant put his date of employment as 11th November and on Exhibit C10, the Clearance Certificate for Ex-Staff, the date the claimant joined the Bank was written as 17th November, 2000. In Anyanwu & Ors. vs. Uzowuaka & Ors. (2009) 7 SCNJ P. 28 at pp. 40-41, the Supreme Court held that evaluation of evidence should entail an assessment of the evidence of both parties by placing same on imaginary scale of justice and determine the party in whose favour the balance tilts. Counsel submitted that if this is done, the court will be enjoined to hold that the claimant was employed on 14th November, 2000 and not on July 8th 2000 at all. Also in Anyanwu & Ors. vs. Uzowuaka (supra) at p. 44, the Supreme Court held that a document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. It is counsel’s argument that the essence of the claimant insisting he was employed on the 8th July, 2000 is to place him within the five years period of being entitled to payment of gratuity and other entitlements while documentary evidence abound to show that the claimant’s employment date is 14th November 2000. From the foregoing, it is the submission of counsel that Section 123 of Evidence Act, 2011 provides that facts admitted need not proved, Exhibits D5 and C10 show that the claimant himself after denying that he was not employed on 14th November, 2000 in Exhibit C6 written on December 6th 2000, later on 19th August, 2002 and on 30th June, 2008 respectively in writing admitted that he was employed on 11th November 2000 and 17th November, 2000 respectively. In Efuruibe vs.Ugbam (2010) 14 NWLR (Pt. 1213) P. 257 @ P. 287, the Court of Appeal held that admissions do not require to be proved for the simple reason, among others that “out of the abundance of the heart the mouth speaketh” and that no better proof is required than that, which an adversary wholly and voluntarily owns up. See also Ojukwu vs. Onwudiwe (1984) 1 SCNLR P. 247. With documents showing different conflicting dates of employment, the claimant has a duty to eliminate the authenticity of the factual situation in the document relied upon by the defendant. In the absence of such elimination, the onus still remains with the claimant to prove the allegation of the actual date of his employment. See the cases of Effiom vs. C.R.S.I.E.C (2010) 14 NWLR (Pt. 1213) p. 406 at p. 130. Also, in the case of Ignobis Hotels Ltd. vs. Bentee Elect. Ltd (2015) 1 NWLR (Pt. 1441) p. 504 at p. 523 it was held that party who makes an assertion has the burden to prove it. Counsel submitted that since the claimant has failed to prove that he was employed on the 8th day of July, 2000 and it is obvious from evidence that his actual date of employment is the 14th day of November. 2000 the court was urged to hold that the claimant was employed by the defendant on the 14th day of November, 2000 and not on the 8th day of July, 2000. On the second issue as to whether the claimant is entitled to his claims in view of the fact that he did not work up to the period that entitled him to gratuity and other benefits by virtue of his employment on 14th November 2000? Counsel referred to Exhibit C17 namely the Staff Manual Hand Book of September 2005 paragraph 8.9, page 43 of which provides as follows: “Payment of terminal benefits/gratuity scheme. This new policy takes effect from 1st September, 2005 for staff of Old UBA and Old STB who had not spent up to five years in either bank. Eligibility: Permanent Staff, Minimum of 10 years in service exit not through dismissal. Entitlement: Computed as a% of terminal basic only. 10 years – 100% Annual Basic Salary. 11 – 15 years – add 10% per annum. 16-25 years add 15% per annum. 25 – 35 years add 20% per annum. For staff of either Bank that had spent up to five years in bank on 1st September 2005, the old UBA or old STB policies apply OLD STB POLICY Upon resignation from the Bank’s employment for reasons other than misconduct, employees shall be entitled to amounts calculated as follows. Eligibility: Permanent Staff, Minimum of 5 years in service, exit not through dismissal. Entitlement: 100% of terminal annual basic salary. Plus 10% increment for each additional year in service. OLD UBA POLICY 28 years – 280%, 29 years – 290%, 30 years – 300%. From the foregoing, counsel submitted that by virtue of Exhibit C17 the two conditions that will entitle the claimant to gratuity and other benefits are firstly, if he worked for five years in the old UBA Plc. or STB Plc. or Secondly, it he worked for 10 years after the merger of old UBA Plc. with STB Plc. and since it is clear that he was employed by the Defendant on the 14th day of November, 2000 and the effective date of Exhibit C17 and the above condition of service is 1st September 2000, along the line of the above, by mathematical calculation, the claimant worked in the old UBA Plc. for four years and 9½ (nine and half ) while in the New UBA Plc. for 8 years and 6 months, which invariably means that he is not entitled to gratuity and other post-retirement benefits. In the case of Eyo vs. Onuoha (2011) 3 SCNJ P. 302 at P. 316, the Supreme Court held that for an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opponent who may in the process of cross-examination attack and debunk it. It was submitted by counsel that the defendant has proven by virtue of Exhibit C5 and C17 that the claimant is not entitled to any gratuity and other post-retirement benefits, because he did not work up to the period that will make him to be eligible to those entitlements. In Okoye vs. Nwankwo (2014) All FWLR (Pt. 756) P. 471 at P. 498, the Supreme Court held that the burden of proof is merely an onus to prove or establish an issue. In the instant case, counsel argued that the defendant has established that the claimant is not entitled to his claims because he did not work for the defendant up to the period he will be entitled to gratuity and other post-retirement claims, his claim is essentially baseless, as the parties are bound by the terms of Exhibit C17, which serves as their contract agreement. It is trite law that parties are bound by the clear provisions of their agreement and the court is bound to give effect same as was held by Supreme Court in Ferrero vs. Henkel (2011) 6 SCNJ P. 1 at P. 14.Similarly, in the case of Onyekwelu vs. Elf Petroleum (2009) 2 SCNJ P. 58 at P. 70 the Supreme Court held that parties are bound by the terms of their agreement and if any dispute ensues, the terms of the contract will be the guide to resolve the dispute. Counsel urged the court to hold that Exhibit C5 and C17 is the guide to resolve the assertion of the defendant that the claimant is not entitled to the gratuity and other post-retirement benefits he claims in this matter. Regarding issue three; whether the claimant discharged the burden of proof in this matter to attract Judgment in his favour? Counsel submitted that it is the general principle of law that he that alleges must prove. In the present suit, the claimant has made a claim of the sum of N55,870,926.26 (Fifty Five Million, Eight Hundred and Seventy Thousand, Nine Hundred and Twenty Six Naira, Twenty Six Kobo) being his purported unpaid entitlements by the defendant. Having made the claims, the law is that he has the onus to prove how he is entitled to the claims. In Okoye vs. Nwankwo (supra) PP. 499 – 500 the Supreme Court held that in civil cases, proof is based on balance of probabilities and it rests on the party who asserts the affirmative. From the foregoing decision of the apex court, counsel beckoned on the court to infer from the preceding argument in issues one and two above, that the claimant proved nothing in this matter. See also the cases of: 1. Veepee Ind. Ltd. vs. Coca Ind. Ltd. (2008) All FWLR (Pt. 425) P. 1667 at P. 1683 2. Jolasin vs. Bamgboye (2010) 12 SCNJ P. 315 at 331 – 332 3. Okukwe vs. Ogubiyi (1998) 8 NWLR (Pt. 561) P. 339 at P. 352 4. Osawaru vs. Ezeiruka (1978) 6 – 7 Sec. 135 at 145. See also Section 131(1) of the Evidence Act, 2011. Counsel submitted that the cross-examination by the Defence Counsel of the claimant on 5th November 2014, wherein the claimant answered that his claims are calculated from page 41 paragraph 2 successfully challenged the evidence of the claimant on the alleged sum of money he claims the defendant owes him because it is the law that the best way to challenge the evidence of a witness is cross-examination. Reliance for this position was placed on the case of Borishade vs. FRN (2012) 18 NWLR (Pt. 1332) P. 347; in Ezemba vs. Kelani (1985) 3 NWLR (Pt. 12) P. 248, where it was held that No witness who has given on oath materially inconsistent evidence is entitled to the honour of credibility. Since the claimant had failed to place the actual basis of his purported entitlements to the court, counsel urged the court to refuse to grant his claims in line with the decision in INEC vs. Afuma (2013) All FWLR (Pt. 697) P. 622 at PP. 640 – 641 where it was held by the Supreme Court that the court is not a charitable organization. They are bound to decide the case of parties, based on their presentation. On the fourth issue as to whether the defendant is entitled to her counter claim? Paragraph 26(a) of the Amended Statement of Defence, contained the counter claim as follows: (a) The sum of N1,508,657.95 (One million, Five Hundred and Eight Thousand, Six Hundred and Fifty Seven Naira Ninety Five Kobo) being the balance of the loan the claimant took from the defendant while in her employment plus the accrued interest. (b) Interest on the said sum of N1,508,657.95 (One Million, Five Hundred and Eight Thousand, Six Hundred and Fifty Seven Naira Ninety Five Kobo) at the interest rate of 22% per annum from 24th day of March 2011 until judgment is delivered. (c) 10% interest on the judgment debt from the day of judgment until judgment debt and interest are fully paid. The defendant’s case is that the sum of money claimed is the balance of the loan the claimant took from her. Incidentally, the claimant lent weight to the evidence of the defendant by tendering Exhibit C19 which is the demand letter for the debt on him and Exhibit C21 which is his Statement of Account, which shows that on 12th August, 2008 he was owing the defendant the sum of N118,992.00 (One Hundred and Eighteen Thousand, Nine Hundred and Ninety Two Naira) as can be seen from the Dr. meaning Debit after the figure on the Statement of Account, in banking, Cr. Means Credit while Dr. means debt. In Okoye vs. Nwankwo (supra) at PP. 499 – 500, the Supreme Court held that civil cases are proved on the balance of probability. That being the case, since the evidence of the indebtedness of the claimant to the defendant is before the court, the court was urged to give judgment to the defendant in favour of her counter claim. Having made the above submissions counsel urged the Court to resolve all the issues argued above in the defendant’s favour. He submitted that the claimant’s case lacks merit, and he urged the court to dismiss same with cost and deliver judgment in favour of the defendant’s counter claim. In the written address of the claimant filed on the 9th day of April 2015, counsel raised four issues for determination, to wit: i. Has the claimant proved his case upon which the court can find for him? ii. Is the claimant entitled to be issued with a discharge certificate as Ex-Staff of the defendant? iii. Was the claimant harassed to resign or did he resign voluntarily? iv. Is the defendant entitled to his counter claim? Prior to counsel’s arguments on the issues raised, objections were raised to the admissibility of the defendant’s Exhibits: D1, D2, D3, D4, D5, D6, D7 and D8 as tendered by the defendant on the following grounds: a. All the signatures purported to have been signed by the claimant were forgeries. b. The signature of the claimant has been constant in all his documents and had before the court denied the documents sought to be admitted by the defendant. See the processes in this suit, including affidavits and statement of claim forming part of the court records in the determination of interlocutory application. Also the case of Alhaji Awawu Iyawo Ishola Olokun & Anor. Vs. Alhaji Isiaka Yahaya Aiyelabegan (2004) 2 NWLR (Pt. 855) 405 @ 516 para. C-D c. Assumption of duty form Exhibit D8 was never acted upon or the content confirmed by the Head Office of the defendant as required. d. The purported signature of IDRIS NYAM in the Concession to assume duty Exhibit D2 is in doubt, while Mr. Richard did not sign at all as required. e. The purported residential address of the claimant was false. The claimant had operated on two addresses: (a) First Avenue, No 11, Ebema Street, Ogbor Hill, Aba and (b) No. 4, Garden City Avenue, Off 32 Omenazu Street, Aba, Abia State. f. The admissibility of any document has to do with its relevance to the case. Exhibit D1 has no relevance to this suit and there is nothing in it connecting the claimant to it. The document has no reference number and does not come on any letter head or stamp of the defendant. g. Exhibit D7, concession to assume duty of 21/11/2000 did not emanate from the claimant. Exhibit D7 was not directed to any Juristic person and was not directed to a particular address. The claimant never lived at No. 22 Mini Eziukwu Street, Port-Harcourt, Rivers State. h. Apart from the signature on the face of Exhibit D4, PASSWORD SECRECY UNDERTAKING, there is nothing linking the claimant to it. The document did not bear any letter head and address of the defendant and is not relevant to the suit. It has no relevance to the issue before the court. i. Exhibit D6 STAFF RE-DEPLOYMENT OF 2nd October, 2000 a document made in favour of one Chimezie O. Ike with employment No. 19709 is not that of the claimant and is therefore not relevant to this suit. Also, the claimant had been in the employment of the defendant, well over two years before this exhibit was made. Counsel therefore urged the court to reject the exhibits and mark them accordingly. Objections were raised to Paragraphs 3, 4, 5, 8, 9, 11, 16, 19 and 22 of the Amended Statement of Defence of 1st July, 2014 on the basis that these paragraphs have not complied with Order 3 Rule 4 (i) and (ii) of the National Industrial Court Rules, 2007 by pleading arguments and evidence rather that facts. Such argumentative pleading done by the defendant fixes the court in an expedition for facts in support of the case. See page 1191 of Black’s Law Dictionary, Eight Edition by Bryan. A. Garner, where argumentative pleading was defined as “pleading that states allegation rather than facts and thus forces the court to inter or hunt supporting facts. Conclusive statements in court papers are a form of argumentative pleadings”. Also in the case of Chief Suleiman Makonjuola Ajadi vs. Chief Simeon Sule Ajibola & 10 Ors. (2004) 16 NWLR (Pt. 898) 91 at 203, paras. E-D, the court held: “Pleading is like a Table which stands on its legs. The facts form the top of the table and legs on which it stands are; the evidence that support that facts. A pleader pleads facts and not the evidence or the law resulting from the facts. He does not plead legal results but facts”. Counsel submitted that the court had a duty in the instant case to apply the principles in the case of Kalu vs. Uzor (2004) 12 NWLR (Pt. 886) 1 @ 31, para. A-B, where the court held: “Where a substantial part of a plaintiff’s (now defendant) pleadings has been struck out, a court or Tribunal has the authority to consider whether the pleadings (statement of defence) can sustain the cause of action and dismiss if it finds that the remainder of the pleadings is insufficient to sustain the cause of action”. It is evident that in the event paragraphs 3, 4, 5, 8, 9, 11, 16, 19 and 22 of the statement of defence are struck out, there is nothing left for the sustenance of this suit. See the case of People Redemption Party vs. INEC (2004) NWLR (Pt. 877) 24 @ 52 para. F-G. In arguing the first issue whether the claimant has proved his case upon which the court can find for him, Counsel contended that the crux of the matter lies in determining when the claimant was employed, and submitted that the claimant was employed before 14/11/2000 because by 18/10/2000 the performance of the claimant had been rated “CORE”. See Exhibit C8 (a) (Staff performance appraisal) by the defendant. This evidence has been uncontroverted by the defendant and the court was urged to so hold. Thus the evidential burden had shifted to the defendant to rebut this. See the case of Abdulahi Hassani & Ano. vs. Eberechukwu Ogbuokiri (2004) All FLWR (Pt. 203) 2132 @ 2149, paras. A-D, where the court held: “In civil cases while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues which arises in the course of proceedings may shift from the plaintiff to the defendant See also the case of SUMMIT FINANCE CO. LTD vs. IRON BABA & SONS LTD. (2004) FWLR (Pt. 188) 996, @ 1013 para. A. where the Court of Appeal held that: “In the arena of proof, it is after the claimant has adduced credible evidence establishing prima facie case that the onus of proof will shift”. Counsel submitted that the evidential burden is now on the defendant to prove otherwise. The combined effect of Exhibits C1, C2, C3, C4, C5, C6, C7 and C8(a) lays credence to the claimant’s claim . Counsel urged the court to hold and declare that the employment date of the claimant is 8/7/2000, that is vide Exhibit C1. Counsel’s argument on issues two and three is premised on the fact that the claimant’s evidence stated is that upon being promoted to a Branch Manager of the defendant through Exhibit C9, that he was suddenly through Exhibit C20 advised to resign his appointment by the defendant through his immediate supervisor as required by paragraph 8. 5. 1 at page 38 of Staff Manual Hand Book of the defendant of September, 2005, that is Exhibit C17, and that on 30/6/2008, the claimant was signed off vide Exhibits C10, C11 and C12. Counsel submitted that the claimant is entitled to a discharge certificate or letter at the moment Exhibits C10, C11 and C12 were extracted from him. See page 38, para. 8.4.1 of exhibit C17, (Staff Manual Hand Book, September 2005) which states: “Exit interview shall be conducted for all resigning employees in any of the forms above except death and Exit Certificate issued to cleared employee, CONSEQUENTLY, A letter of Disengagement must be issued to same staff to ensure that he/she has been disengaged from the service of UBA Group”. Counsel’ submission that Exhibit C17 is a guide and working document of the parties is in tandem with concluding paragraph 2.01 of the defendant’s written address. See the case of Summit Finance (supra) at page 1024, paras. B – C: “Where the parties have embodied the terms of their contract agreement in a written document as in the instant case, extrinsic or oral evidence is not admissible to vary, subtract from or contradict the terms of the written instruction.” Counsel urged the Court to so hold. He went further that the claimant was harassed to resign his appointment rather than being voluntary as the defendant wants the court to believe and this can be deduced from what the claimant said in his exit interview form, that is Exhibit C11, where he was asked, “what did you like the least about your job and or “UBA” and he answered “Harassment”. Counsel urged the court to hold that the claimant was harassed into resigning his appointment with the defendant over what the defendant called in Exhibit C20, “Re-Organisation in the UBA Plc.,” and that the claimant was not in a position to refuse the advice of the defendant through his immediate supervisor, otherwise, the claimant be drastically sanctioned as provided by Exhibit C17 at page 40 and Exhibit C16 at page 18, para. 8.2.8. It is counsel’s submission, that the claimant is entitled to his claims as supported by what the parties call at pages 37 and 38 of Exhibit C17, particularly at 8.31 voluntary Resignation which include Retirement, termination, advise to resign & redundancy. And it states that upon resignation employee shall be entitled to certain benefits under UBA Groups compensation Policy less any unpaid liabilities owed to the group as must have been indicated in her certificate of clearance. See page 39, para 8.5.3.4., also pages 43 and 44 of Exhibit C17, which says that an employee that has worked for five years and above in the old UBA, like the claimant in this case shall be entitled to 70% and above as the case may be of his/her annual basic salary plus transport, housing, lunch. The exit of the claimant was not through dismissal and not due to the fault of the claimant, rather it was due to what the defendant called “Re-Organization” and the defendant fully aware of such a circumstance stated at page 15 particularly paragraph 6.3 that “Employees whose contract of employment is determined by resignation of the staff or termination by the employer shall be entitled to receive terminal benefits, as provided in the Bank’s personnel policy”. Thus, the involuntary loss of employment of the claimant was at no fault of his. The forced resignation was done through the claimant’s immediate supervisor, as required by the Hand Book of the Defendant, Exhibit C17. See also Exhibits C20, C10, C11 and C12 and page 40, para. 8.6.6 of Exhibit C17. On the fourth issue whether the defendant is entitled to his counter-claim, Counsel submitted that the defendant has not discharged the onus placed on him. The defendant has not established any prima facie evidence as to how and when the purported loan was given. Under cross-examination on 3/3/2015, the witness was asked of what the principal sum was and he said he does not know. The witness does not know when the purported loan was given and its disbursement plan. The onus on the defendant in this counter claim to establish his counter claim can only be discharged to the satisfaction of the court and on the evidence brought by him. See the case of Moses Okhvarobo & 2 Ors vs. Chief Echareuba Aigbe (2002) FWLR (Pt. 116) 869 @ 891 paras A-C. Counsel’s submission is that the defendant has failed woefully in establishing her counter claim, when she contradicted herself that the claimant is owing her the sum of N2,263,497.76 and N1,508,687.95 in paragraph 20 and 26(a) and (b) of her Amended Statement of Defence and Counter Claim. See Exhibits C18 and C19. These are material contradictions which cannot be ignored by the court. Counsel urged the court to so hold and dismiss the Counter Claim with costs. On the issue of examination of character of letters of exhibits, counsel submitted that this was never pleaded and no evidence was led to that effect and as such ought to be ignored by the court as parties are bound by their pleadings. See the case of Alhaji Ibrahim Mohamed vs. Klargester Nig. Ltd (2002) FWLR (Pt. 127) 1078 @ 1096-1097, paras H-A. Also, the comparison of the signature of Idris Nyam and Richard Oshungboye made by counsel is not within his powers to do so, for the following reasons: i. he is not a signature expert and did not call any evidence to that effect. ii. the owners of the signatures were not called to testify of the infractions on their signatures. iii. The counsel and the defendant did not anywhere in their pleadings furnish any form of particulars of forgery. Counsel urged the court to discountenance this argument and dismiss it. Address of counsel cannot take the place of evidence. See Ishola vs. Ajiboye (1998) NWLR (Pt.532) 71. In reaction to the defendant’s issue two, Counsel for the claimant submitted that the defendant should stop pulling wool in the eyes of the court as the law is in the bosom of the court. He submitted that the court should critically look at and determine the combined effects of Exhibits C1 – C7 and particularly Exhibit C8(a) as to the employment date of the Claimant. Counsel drew the court’s attention to the Old UBA policy at page 43 and 44 of Exhibit C17 on ELIGIBILITY: Permanent Staff: Minimum of five years in service exit not through dismissal. Counsel then urged the court to hold that the claimant is qualified for this benefit. Mathematically, from July 8, 2000 to 30th August, 2005 under the old UBA is well over five years, while after merger, the claimant worked for over 4 years making approximately nine years in employment of the defendant. Counsel went on, referring to paragraphs 4, 5 and 8 of the statement of defence, that the defendant has brandished and speculated different dates both in its statement of defence and written address variously as 14-11-2000 and 17-11-2000. The court cannot speculate. Counsel urged the court to dismiss the counter-claim with costs as no loan was given to the claimant and there was no supporting document to that effect. The defendant did not give out any loan and as such did not follow the procedure for loan under UBA Group. See also Exhibit C17, particularly at pages 14 and 15 regarding loans application and disbursement. In the Alternative, to declare that the claimant is still in the employment of the defendant and that the claimant is entitled to arrears of salary and other benefits as paragraph (a) of the claims and from the 30th June, 2008, grant the claimant’s reliefs, and dismiss the counter claim with costs. In the defendant’s reply to objection of claimant’s counsel and reply on point of law filed on the 14th day of April 2015, Counsel submitted that the case of Alhaji Awawu Iyawo Ishola Olokun and Anor vs. Alhaji Isiaka Yahaya Aiyelabehan (2004) 2 NWLR (Pt. 855) 504 at 516 para. C-D, cited by the Learned claimant’s Counsel is not in that said Law report. In Yakubu vs. Y.E.D.C. Ltd (2015) All FWLR (Pt. 764) p. 179 at pp. 193 – 194, The Court of Appeal emphasized on the need for counsel to apply due care, diligence and industry in practice so as to avoid such avoidable and needless pitfalls that has an ill-fated backlash and ramifications on litigants who, having fought their case to this height, are sent away from the temple of justice empty handed for such a common place issue, which though fundamental, could have been adequately taken care of much earlier with more industry and attention to detail. On claimant’s Counsel’s objection to admission of Exhibits D1, D2, D3, D4, D5, D6, D7 and D8, he based his objection on 2 (two) reasons as follows: (a) That all the signatures purported to have been signed by the claimant were forgeries (b) that the signature of the claimant has been constant in all his documents and relied on. Counsel relying on the case of G. E. Int’l Operations Ltd. vs. Q Oil and Gas Services (2014) All FWLR (Pt. 761) P. 1509 at P. 1521 where it was enunciated that frontloading ensures that there is no trial by ambush and to expedite the hearing and enable the parties know not only the case they are to meet at the trial, also the oral and documentary evidence by, which the case is to be proved., submitted that Exhibits D1 to D8 were listed as documents the defendant seeks to rely on and tender as Exhibit in the amended Statement of defence the claimant who had the right of consequential amendment to attack any exhibits in pleading and evidence, did not do so. In Khaled Barakat Chami vs. United Bank for Africa Plc. (2010) 2 SCNJ P. 23 at PP. 39 – 40, the Supreme Court held that where a party fails to defend the adverse party’s case, burden of proof is minimal and the other party can rely on the fact of the unchanged evidence, in effect, since the claimant did not in his pleading and evidence challenge the documents tendered, which he had foreknowledge of, the defendant is bound to rely on them as exhibits. Counsel submitted that documentary evidence is the best evidence and the best proof of the contents of documents as was held in Vincent U. Egharevba vs. Dr. Orobor Osagie (2009) 12 SCNJ P. 166 at P. 188 along the line of the above decision, counsel referred the court to the claimant’s signature in Exhibits C3, C6 and C23 which are similar to the signature in Exhibits D2, D3, D4, D5, D7 and D8 and on the doctrine of res ipsa loquitur, hold that the signature of the claimant is not the same. See Statement on Oath; Exhibits C23, C13, C6 and C12 to mention a few. According to counsel, it is the law as was held by the Supreme Court in Omodele Ahshabi Eya and Ors vs. Alhaja Risikatu Olopade & Anor (2011) 5 SCNJ P.98 at P. 119 that allegation of forgery in Civil actions, imputes criminality and the proof must be beyond reasonable doubt. It is counsel’s contention that the claimant has not in any way or manner proved beyond reasonable doubt that his signature was forged and it is the law that he who asserts must prove. See Section 131 of Evidence Act, 2011 and the case of Omodele Ahshabi Eya and Ors vs. Alhaja Risikatu Olopade & Anor (supra) at P. 119 also in the above case, at page 118, the apex court held that before a party can legally rely on forgery, the fact must be pleaded. On the position of Law to buttress that Exhibits D1 – D8 were properly admitted in evidence as Exhibits, counsel submitted that the documents were pleaded and also front loaded, they are also relevant to this case in line with Section 7 of the Evidence Act, 2011 and when documents are pleaded and relevant, they are admissible in civil proceeding. See the case of Adefeye vs. Bamgboye (2013) 19 WNR (Pt. 14 lines 15 – 25 per Fabiyi JSC. Again in Akinboyede vs. Adebiyi (2015) 3 NWLR (Pt. 615) at pp. 627 – 629 the Court of Appeal held that a trial court that admitted Exhibits should concentrate on their cogency and not to review its decision of admitting the Exhibits because once documentary exhibits have been properly tendered and admitted, the trial court ought not to expunge them because doing so would exclude them from the records of court and same would not be considered in evaluation of evidence. In Chiagorom vs. Diamond Bank (2014) NLLR P. 401 at pp. 462 – 463. It was held that the practice in the National Industrial Court is that all front loaded documents are deemed admitted unless specifically objected to, in which event the court will make a ruling on the admissibility or otherwise of the documents. Once deemed admitted, all that is left is the weight or probative value that will be placed on them by the court. Counsel urged the court to discountenance paragraphs C to K of paragraph 4.00 of claimant’s counsel address because these issues were not pleaded by the claimant neither were they in evidence of the claimant, in effect they go to no issue at this address stage. See the case of Oloruntoba-Oju & Ors vs. Abdul-Raheem and Ors (2009) 6 SCNJ 1 where the Supreme Court held that a party cannot make out a case solely on the address of counsel but on facts pleaded and evidence adduced in support of such facts. Accordingly, Counsel submitted that the Claimant’s objection on the admissibility of Exhibits D1-D8 lacks merit and should be discountenanced. He urged the court to so hold. On claimant counsel’s objection to paragraphs 3, 4, 5, 8, 9, 11, 16, 19 and 22 of the Amended Statement of Defence, counsel submitted that Order 3 Rule 4(i) and (ii) of the National Industrial Rules did not make the provision for what the claimant’s counsel hinged his objection on, instead, Order 3 in the main provides for “Form an commencement of Action” while Sub Rule (1) of Rule 4 provides for the complaint being accompanied with a Statement of Facts establishing the cause of action; and Sub Rule (ii) provides for copies of every document to be relied on at the trial. Order 3 Rule 4 (i) and (ii) have no relationship at all with the pleadings in a Statement of Defence; more so, Order 5 Rule 1 of the Rules of this court, which provides that failure to comply with any of these Rules may be treated as an irregularity and the court may give any direction as it thinks fit. Order 5 Rule 2(1) provides that the procedure to set aside a process of court for irregularity, shall be by way of an application, and the applicant to set aside for irregularity may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the of the irregularity, along this line, the claimant and his counsel, were served the Amended Statement of Defence on 1st July 2014 and by Order of court on 2nd July, 2014 the Amended Statement of Defence was deemed properly filed, and since that time, the claimant has taken fresh steps by going into hearing and his counsel had cross examined the Defence witness on his Statement of Oath and the pleading and it is only in the written address of the claimant filed and served on the Defendant that objection to the Amended Statement of Defence is being raised. From the foregoing, counsel submitted that counsel’s objection was not made within a reasonable time and was not done before the party applying had taken any fresh step after becoming aware of the irregularity. In Ajayi vs. Jolayemi (2005) 5 SC (Pt. 11) P. 31 at p. 44. The Supreme Court held that A defendant ought to have raised an objection before pleading to the Statement of Claim. Having pleading to the Statement of Claim and having allowed a full blown trial to be held that it is too late for the 1st defendant to raise the issue of irregularity of pleadings at address stage. In that case, the apex court went further to hold that if the pleadings offends the rules of court being defective, this is a mere irregularity, which could have been cured by amendment, on terms, if objection had been raised at the appropriate time, more so, where there is no miscarriage of justice occasioned to the party raising the objection. In Agbokoba vs. INEC (2008) 12 SCNJ (Pt. 11) P. 619 at P. 652, the Supreme Court held that where an action, has been started by a procedure, which is irregular, a party who took active part in the proceeding without raising a formal objection to the irregularity cannot be heard later to set aside the action on ground of irregularity he acquiesced to. In Abolase & Ors. vs. Messrs Chevron Nigeria Ltd & Anor (2014) 26 NLLR (Pt. 150) P. 624 at P. 644 Hon. Justice O. A. Obaseki-Osaghae held that In line with Order 5 Rule 2(10) of the NIC Rules, 2007 where a party takes steps in an irregular procedure, he cannot be heard to complain of any irregularity because he has waived the right to complain. Thus the claimant’s objection raised in the Written Address, is misconceived, lacks merit and should be struck out. Counsel’s submission regarding the first ISSUE of the claimant which was formulated in the defendant’s address as the third issue is that the principle of law enunciated in the Court of Appeal cases of Abdulahi Hassani and anor vs. Eberechukwu Ogbokiri (supra) and Summit Fianco. Co Ltd vs. Iron Baba & Sons Ltd (supra) cited by claimant’s counsel is that the burden of proof initially lies on the plaintiff and may shift from the plaintiff to the defendant if the claimant has adduced credible evidence establishing a prima facie case. in the instant case the alleged first employment letter of the claimant, provides the requirements the claimant will submit to the defendant within 3 month before he can assume duty and it is also provided on page two that the claimant should signify his acceptance of the employment by signing on the foot of the attached duplicate and returning same to the defendant on or before 9th November, 2000 and Exhibit C8(a) tendered by the claimant as his Staff appraisal for 1999/2000 is dated 18th October, 2000 and he was allegedly rated Core, when in fact the period he was allegedly rated core is for the years 1999/2000, which years he has not worked for, we submit that this evidence is very doubtful, to buttress the doubt counsel referred the court to Exhibit C17 paragraph 1. 121 on page 9 on probation, which stipulates that probation shall be for a period of six (6) months effective from date of resumption of duty. All new hired shall within 30 days of resumption be notified of his or job description. Moreover, Exhibit C23, which is also Exhibit D8, makes it obvious that the claimant assumed duty on 1st December, 2000. It is the law that where a party contradicts itself in evidence, the court will not choose which evidence to believe, rather the court should treat the evidence in a whole as incredible. See the case of Alhaji B. Jawando & Anor vs. Madam Falilat Bakare (2006) All FWLR (Pt. 332) P. 1590 at P. 1609. The burden of proof in this matter lies on the claimant and it does not shift on the opposing party to rebut the assertion unless the claimant discharges the burden of proof. In the case of Goodwill & Trust Investment Ltd & Anor vs. Witt & Bush Ltd. (2011) 3 SCNJ P. 241 at P. 266 the apex court held that burden of proof changes like chameleon. Thus, where a plaintiff alleges and pleads a fact, and produces evidence in proof of it, the one will shift to the defendant to adduce evidence in rebuttal. See the cases of Olowu vs. Olowu (1985) 3 NWLR (Pt. 13) P. 372 at P. 386; Oguagudu vs. Armets Transport Ltd. (1974) NSCC P. 169. Also, on the strength of Section 131(1) of the Evidence Act, 2011 and the case of Jolashin vs. Bamgboye (2010) 12 SCNJ P. 315 at PP. 331 to 332 counsel submitted that the burden of proving a particular fact lies on the party who asserts the affirmative and in Eghareba vs. Dir. Orobor Osagie (supra) at P. 166 it was held that documentary evidence is the best evidence. The application of the above cited cases in the extant case is that the claimant averred that his date of employment is 8th July, 2000 and tendered Exhibit C1 and other documents to prove this fact. Counsel submitted that the defendant has rebutted the claimant’s assertion that he was employed on 8th July, 2000 by tendering Exhibits D1-D8 to show that the claimant’s date of employment was 14th November, 2000. Thus, the onus of proof has reverted to the claimant accordingly and he has failed to discharge the onus of proof that has reverted to him but only hinged his defence or rebuttal on allegation that Exhibits D1-D8 are forged documents, which is a criminal allegation that must be proved beyond reasonable doubt as was held by Supreme Court in Eyo vs. Olopade (supra) at P. 119. Counsel submitted that the defendant tendering Exhibits D1 to D8 has proved beyond reasonable doubt that Exhibits C1, C2, C3, C4, C6 and other documents tendered as Exhibits by the claimant to establish that he was employed on 8th July, 2000 were forged. Thus the claimant has failed to discharge this shifted burden of proof he will therefore not succeed in his suit and obtain judgment in his favour. See the case of Eyo vs. Onuoha (2011) 3 SCNJ P. 302 at P. 321. In Counsel’s submission on the second and third issues of the claimant, counsel referred the court to Exhibit C10, which is the clearance certificate for Ex-staff and Exhibit C21 shows that the claimant is indebted to the defendant to the tune of N118,992. In effect, based on his indebtedness to the defendant, the claimant is not entitled to a discharge certificate from the defendant until he clears his indebtedness in line with the counter claim. Exhibit C12, the letter of Resignation of the claimant dated 30/6/2008 does not make mention of harassment anywhere and it is the best evidence to resolve that the claimant in the instant case was not harassed to resign. In the case of Anyanwu vs. Uzowuaka (supra) at page 44, the apex court held that a document tendered in court is the best proof of the content of such document. In Liman vs. Access Bank (2014) 45 NLLR (Pt. 626) at P. 659 it was held that where an employee alleges that he/she was coerced into resigning appointment or there was an act of undue influence on him/her, evidence must be led to establish such assertions. Accordingly counsel submitted that there was no such cogent evidence led by the claimant to establish his allegation. In addition counsel submitted that Civil matters are proved on the balance of probability as held by the Supreme Court in Okoye vs. Nwankwo (2014) All FWLR (Pt. 756) P. 471 at P. 489. Based on the foregoing, Exhibit C21 has gone a long way to show that the claimant is indebted to the defendant by his emphasis and reliance on Exhibit C19. In Union Bank Plc vs. Alhaji Adams Ajabule & Anor (2011) 12 SCNJ (Pt. 1) p. 331 at p. 343 the Supreme Court held that evidence of opposing party, which is in line with other party’s case, the latter party can rely on same to strengthen its case. In effect, it is the submission of counsel that Exhibit C21 has strengthened the case of the defendant; that the claimant is indebted to her. Thus, counsel urged the Court to uphold all submissions and issues and hold that the claim of the claimant is misconceived and lacks merit and strike this suit out accordingly with cost. Upon hearing learned counsels to the parties in their final written addresses and having considered all the facts pleaded by the parties together with the evidence adduced by the witnesses who testified in this suit, two issues arise for determination in this suit. The issues are- 1. Whether the claimant is entitled to the reliefs he seeks in this case? 2. Whether the defendant has proved the counter claim? Before I proceed to determine the issues, there is need to first determine two objections raised by the claimant’s counsel in his written address. On 3rd March 2015 when Exhibits D1 to D8 were sought to be tendered through DW1, the claimant’s counsel wanted to raise objection to the admissibility of the documents but he was directed by the court to do so in his final address. In his final written address, the claimant’s counsel submitted that Exhibits D1, D2, D3, D4, D5, D6, D7 and D8 are not admissible in evidence. The ground of his objection is that all the signatures on the exhibits purportedly that of the claimant were forged. It must be pointed out here that the fact that a document is suspected to have been forged does not affect its admissibility. The document may nonetheless be admitted in evidence but once it is proved to have been forged, it will go to affect the weight or reliance the court will place on it. In any case, whether a document is forged cannot be determined until evidence is taken on it. That is to say, the document must first be in evidence before the issue of its being a forgery is taken. The rule governing admissibility of document has remained that the document is relevant, it is pleaded and it is the form prescribed by law for its admissibility. The claimant’s counsel has not attacked the exhibits on any of these grounds. It is my view that Exhibits D1 to D8 are properly in evidence. The claimant’s objection to the admissibility of Exhibits D1 to D8 is overruled. The claimant’s counsel further argued that paragraphs 3, 4, 5, 8, 9, 11, 16, 19 and 22 of the defendant’s amended Statement of Defence filed on 1st July, 2014 are liable to be struck out because the defendant pleaded arguments instead of facts in these paragraphs in contravention of Order 3 Rule 4 (i) and (ii) of the National Industrial Court Rules, 2007. I have examined these paragraphs of the defendant’s amended statement of defence and I find that they contain facts and not arguments as alleged by the claimant’s counsel. This line of objection by the claimant’s counsel is also overruled. The issues for determination in this judgment can now be considered. ISSUE 1: WHETHER THE CLAIMANT IS ENTITLED TO THE RELIEFS HE SEEKS IN THIS CASE The claimant claims- (a) The total sum of N55,870,926.26 (Fifty Five Million, Eight Hundred and Seventy Thousand Nine Hundred and Twenty Six Naira Twenty Six Kobo) being his: i. Gratuity in the sum of - N27,069,826.32 ii. Salary in lieu of Notice (3 months) - N529,539.62 iii. Leave encashment for 124 working days for 7 years - N1,203,734.00 iv. Redundancy/severance package as per the hand book of the defendant, 2005 - N27,069,826.32. (b). An Order of the court directing the defendant to release/issue to the claimant forthwith, a discharge certificate, acknowledging the termination/severance of the claimant’s appointment of 30th June, 2008. (c). The claimant also claims 35% interest in paragraph (a) above until judgment is given and 21% interest from the day of judgment until the entire sum is liquidated. or Alternatively: A declaration that the claimant is still in the employment of the defendant and that the claimant is entitled to arrears of salary and other benefits as per paragraph (a) above and from the said 30th June, 2008. In proof of the reliefs, the claimant testified as the only witness in his case. He said he was employed by the defendant by a letter dated 8th July 2000. After the employment, he applied for a concession to start work pending completion of all other formalities and the defendant granted the concession on 18th July 2000. The claimant signed assumption of duty form on 25th July 2000 and by a letter dated 15th August 2000, he was redeployed to Aba Main Branch. After he had assumed duty at the branch, he received another employment letter dated 14th November 2000 from the defendant but he wrote a letter dated 6th December 2000 to the defendant pointing out the discrepancy to the defendant and the defendant responded by a letter of 10th April 2001 withdrawing the 2nd employment letter. The claimant testified further that he was industrious and dedicated in his duties to the defendant for which he was commended and promoted by the defendant. But in June 2008, he was told by the defendant’s Regional Director, one Nnorom Okechukwu, to resign from the employment of the defendant. This was also contained in a letter dated 27th June 2008 to the claimant in which the defendant also promised to pay the claimant’s entitlement, gratuity and severance packages. The claimant said that on 30th June 2008, he resigned his employment by a letter dated same day and submitted to the defendant all its properties in his possession. The defendant issued him with a clearance certificate for ex-staff and exit interview form. A year after his resignation, the defendant refused to pay the severance package, gratuity and entitlements promised to the claimant. This made the claimant write the letter dated 22nd June 2009 to the defendant requesting the defendant to formally accept his resignation and pay his severance packages, gratuity and entitlements. When the defendant still did not respond, the claimant caused his solicitor, Udeagha Nwigwe Esq., to write a demand letter dated 11th August 2009 to the defendant. The defendant replied by a letter dated 20th August 2009. It is also the evidence of the claimant that it is the policy of the defendant to pay gratuity to ex-staff who has put in 5 years and above in the employment of the defendant. Also, severance packages are paid to staff whose employment is severed by the defendant as a result of no fault of the staff. It is further contained in the staff manual of the defendant for the defendant to pay the following sums to discharged staff who has worked for 5 years and above before the defendant’s merger- i. Gratuity: 90 % of basis salary, housing allowances, lunch and transport ii. Three months’ salary in lieu of notice iii. Leave allowance, and iv. Redundancy/severance package: 100% of basic salary, Housing, lunch and transport allowance. The claimant said he worked with the old UBA for 5 years before it was merged with the then Standard Trust Bank. He has worked with the defendant after the merger 4 years before his resignation. For all the nine years, he only went on leave of 22 days. The claimant said while he was in the defendant’s employment, he was being paid salary, housing, lunch and transport allowances. The defendant not only denied the claims of the claimant but counter-claimed against the claimant. In defending the claimant’s claims and in proof of the defendants’ counter claim, DW1 testified for the defendant. He said he is a banking officer of the defendant at its Aba Branch. He said the claimant was actually employed by the defendant but that the claimant’s employment letter is dated 14th November 2000 and the employment started on 21st November 2000 when the claimant received his employment letter and not from 8th July 2000 as alleged by the claimant. DW1 said further that the claimant wrote the date of his employment in the clearance certificate for ex-staff to be 17/11/2000. To further support the defendants case that the claimant’s employment was in November 2000, DW1 stated that the claimant was interviewed for the employment on 19th October 2000 and his offer letter dated 14/11/2000 was accepted by the claimant on 21/11/2000. DW1 contended that the letter of employment dated 8/7/2000 relied on by the claimant was forged by him. When the claimant picked up his employment letter, he also applied for concession to assume duty by a letter dated 21/11/2000. The defendant granted the concession by its letter of 1/3/2001 which letter the claimant acknowledged on 19/3/2001. After the claimant had documented upon his employment, he was posted to Corporate Banking, Trans Amadi, Port Harcourt and later redeployed to corporate banking, Aba on 30/11/2000. The claimant was confirmed after one year of his employment which was on 1/11/2001 and he was promoted on 29/7/2001. DW1 said that the defendant usually confirm its staff within one year and the date of the claimants confirmation indicates that he was employed in November 2000. In line with the defendant’s pleading in paragraph 9 of the amended statement of defence, DW1 stated that the defendant did not issue the letters referred to by the claimant in paragraph 7 of the statement of facts. According to DW1, it was the claimant who supplied the letters to the defendant after the claimant had left the defendant’s employment. When the defendant received the letters in question from the claimant, it investigated the source of the letters and the claimant was informed the outcome of the investigation. DW1 said the claimant resigned his appointment voluntarily on 30th June 2008 by his resignation letter of same date. The claimant was not told by any staff of the defendant to resign. Upon submitting the resignation letter, the claimant completed the exit clearance form and handed over the defendant’s properties in his possession. It was the claimant who exercised his right to terminate the contract. DW1 stated further that the claimant’s letter of resignation suffices as his disengagement letter and the defendant is not under obligation to give him disengagement letter. The defendant did not also prevent the claimant from securing another job. DW1 confirmed that during the period in employment, the claimant had no disciplinary issues neither was he sanctioned for any misconduct. DW1 testified further that the claimant was not entitled to the defendant’s retirement benefits because he did not work for up to 5 years in the old UBA and not also up to 10 years in the new UBA employment at the time of resignation. According to DW1, the claimant only worked between 21/11/2000 and 25/9/2005 when UBA merged with STB, which period is less than 5 years and from the time of his employment to time of resignation is not up to 10 years to qualify him for the gratuity. The claimant is not also entitled to 3 months’ salary in lieu of notice because he personally resigned from his employment and not that his employment was terminated by the defendant. The defendant only pays salary in lieu to those who were laid off. DW1 concluded his testimony by saying that the claimant is not also entitled to severance allowance because he resigned and not that his employment was severed and not also entitled to leave allowances because he did not go on leave in 2008. The sum of N55,870,926.26 claimed by the claimant include gratuity, salary in lieu of notice, leave allowances and redundancy/severance packages. The claimant also wants the defendant to give him a discharge certificate. His case is that he is entitled to these sums by virtue of the Staff Manual Handbook, Exhibit C17. I shall examine these items of the claimant’s claims in light of Exhibit C17 and the evidence adduced in this case to see whether the claimant is entitled to his claims. In respect of his claim for gratuity, the claimant testified that Exhibit C17 requires the defendant to pay gratuity to discharged staff who have worked for 5 years and above which sum is 90% of basis salary, housing allowances, lunch and transport. The claimant said he worked with the old UBA for 5 years before it was merged with then Standard Trust Bank. The claimant said while he was in the defendant’s employment, he was being paid the following sums- i. His last basic salary was N175, 846.54 per month ii. His housing allowance was N390,000.00 per annum. iii. is lunch allowance was N123,600.00 per annum, and iv. Transport allowance was N384,000.00 per annum It appears it is the 90% of the above sums that translate to the sum of N27,069,826.32 claimed by the claimant as gratuity. In Exhibit C17 is the Staff Handbook. It was tendered without objection from the defendant. Both parties relied on it in this case as constituting the defendant’s condition of service. In the exhibit, there are two situations where staff of the defendant will be entitled to be paid gratuity. This is as contained in paragraph 8.9 of page 43. The provision of the paragraph reads: “PAYMENT OF TERMINAL BENEFITS/GRATUITY SCHEME. This new policy takes effect from 1st September 2005 for staff of old UBA and old STB who had not spent up to five years in either bank. Eligibility Permanent staff Minimum of 10 years Exit not through Dismissal Entitlement Computed as a % of terminal basic only 10years- 100% of annual basic salary 11-15years- add 10% per annum 16-25years- add 15% per annum 25-30years- add 20% per annum For staff of either bank that had spent up to 5 years in bank on 1st September 2005, the old UBA or old STB policies apply OLD STB POLICY Upon resignation from the bank’s employment for reason other than misconduct, employees shall be entitled to amounts calculated as follows: Eligibility Permanent staff Minimum of 5 years in service Exit not through dismissal Entitlement 100% of terminal annual basic salary Plus 10% increment for each additional year in service. OLD UBA POLICY Eligibility Permanent staff Minimum of 5 years in service Exit not through dismissal Entitlements Computed as a % of basic + housing + transport + lunch: 5years – 70% 6years- 75% 7years-80% 8years-85% 9years-90% 10years-125% 11years-135% 12years-145% 13years-155% 14years-165% 15years-175% 16years-185% 17years-195% 18years-205% 19years-215% 20years-225% 21years-235% 22years-240% 23years-245% 24years-255% 25years-260% 26years-270% 27years-275% 28years-280% 29years-290% 30years-300%” By the above contents of Exhibit C17, two requirements are stipulated for qualification for the defendant’s gratuity scheme upon leaving its employment. They are: 1. Staff of old UBA or STB who had not spent up to 5 years in service as at 1st September 2005 will be entitled to gratuity when they eventually attain 10 years in service provided the staff was a permanent staff and was not dismissed from employment. 2. Staff of either bank who had spent 5 years in service as at 1st September 2005 is entitled to gratuity at the stipulated percentages provided the staff was a permanent staff and was not dismissed from employment. From the claimant’s case, he was employed in 2000 and he resigned in 2008. He has not put in 10 years in service as at the date of his resignation. That is to say his case does not come under the first category. When his entire case and his claims are considered, it is apparent that the claimant brought his case under the 2nd category. Under the 2nd category, for the claimant to be entitled to his claim for gratuity, it has to be determined whether as at 1st September 2005, the claimant was 5 years in service. This will require that the claimant’s date of employment be ascertained. To the claimant, he was employed on 8th July 2000 while the defendant contended that the claimant was employed on 14th November 2000. The date of the claimant’s employment has generated a lot of controversy in this case. In fact, it appears to be the crux of this case. This is because, if the claimant’s employment is taken from the date he says he was employed, he will likely be entitled to his claim for gratuity but if taken from the date alleged by the defendant, the claimant will not qualify for gratuity. That is why both parties have held tenaciously to their positions. The two documents now in issue are Exhibits C1 and C5. C1 is dated 8th July 2000 and signed by Idris Nyam and Richard Oshungboye while Exhibit C5 is dated 14th November 2000 and signed by same persons who signed Exhibit C1. In order to assist this court to resolve the issue of the claimant’s actual date of employment, on 7th July 2015, the date earlier scheduled for judgment, I directed the claimant to furnish the court with his statement of account or pay slip or any evidence of payment of salary to him by the defendant between July 2000 and November 2000. In the resumed sitting of this court on 15th July 2015, the claimant brought with him a photocopy of a pay slip which he said was his pay slip for August 2000. He explained that the document was the only one he could lay his hands on. This court admitted the documents in evidence and marked it Exhibit C24. Under cross examination by defendant’s counsel, the claimant said he made the photocopy he brought to court from another photocopy. Although it was this court that requested the claimant to show evidence of payment of salary to him between July 2000 and November 2000, what the claimant presented cannot be used to resolve the instant issue. The document is a mere photocopy and he has not told this court the whereabouts of the original. Furthermore, what he presented is a photocopy of another photocopy. This makes the exhibit very doubtful, besides that, being a photocopy; no foundation was laid for its admissibility. In the result, the exhibit serves no useful purpose in these proceedings, and it is accordingly expunged from the records. This court still has to revert to the evidence on record to resolve this issue. Since it is the claimant who alleges he is entitled to be paid gratuity, the burden of proof of his claim is on him. By Section131(1) of the Evidence Act, 2011 (as amended), the claimant, who desires this court to give judgment as to the legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. See the cases of VEEPEE IND. LTD. vs. COCA IND. LTD. (2008) All FWLR (Pt. 425) 1667; JOLASIN vs. BAMGBOYE (2010) 12 SCNJ, 315 where it was held that the burden of proof in all cases rests on the person who asserts. Therefore, the claimant has the onus to prove that he was an employee of the defendant and when he was so employed. The claimant maintains that he was employed by the defendant on 8th July 2000 vide exhibit C1. After the employment, he applied for a concession to start work pending completion of all other formalities and the defendant granted the concession on 18th July 2000 by Exhibit C2. He also tendered his assumption of duty form as Exhibit C3 dated 25th July 2000. The claimant said he received the employment letter dated 14th November 2000 (Exhibit C5) but that it was after he had been employed. It is his evidence that after he was posted to the defendant’s Aba Branch in August 2000, he received another employment letter, that is Exhibit C5 from the defendant but he wrote Exhibit C6 to the defendant pointing out the discrepancy and the defendant responded by Exhibit C7 withdrawing the 2nd employment letter. The defendant did not dispute the fact that the claimant was an employee of the defendant. To the defendant however, the claimant was employed on 14th November 2000 by Exhibit C5 which employment was accepted by the claimant on 21/11/2000 the same day the claimant applied for concession to assume duty. The defendant’s witness tendered the Concession to assume duty dated 19/3/2001, claimants assumption of duty form dated 21st November 2000, staff training bond dated 21st November 2000, the claimant’s application for concession to assume duty dated 21st November 2000, declaration of secrecy dated 21st November 2000, password secrecy undertaking dated 21st November 2000. These documents are Exhibits D7, D8, D1, D2, D3 and D4 respectively all to show that the claimant’s employment was in November 2000 and not July 2000 as claimed by the claimant. Now, the defendant has alleged that the documents relied on by the claimant were forgeries. See particularly paragraph 5 of the statement of defence where the defendant pleaded that Exhibit C1 was not issued to the claimant by the defendant and in his evidence DW1 stated that Exhibit C1 was forged by the claimant. The defendant has however failed to prove that allegation. Merely alleging that a document is a forgery without more is not sufficient to establish the allegation. The defendant was expected to go further to substantiate the allegation. In his written address, the defendant’s counsel urged me to compare the character typing and signatures on Exhibits C1 and C5 and he said if I do that, I will find that that they are not the same. To the defendant’s counsel, Exhibit C5, which appears more authentic than Exhibit C1, is the claimant’s actual employment letter. The defendant’s counsel submission is still on the point that Exhibit C1 is likely to be a forgery. But I find no evidence to support the allegation that Exhibit C1 is a forgery. This court is not an expert in handwriting and signatures. Although courts are permitted to make comparisons between two writings in deserving situations, the signatures in question in this case are very similar. The question of merely comparing the signatures is beyond this court. It will require expert evidence to unravel the differences between them. None of the parties deemed it necessary to employ expert opinion on this very critical issue. Even at that, expert opinion will not determine which one is the correct employment letter and which is not because the persons whose signatures are in dispute were not produced to look at the signatures. Idris Nyam and Richard Oshungboye, whose names appear on Exhibits C1 and C5 as the persons who signed them are the defendant’s employees. But the defendant, in all its very serious contention that Exhibit C1 is fake, did not call the said employees to tell this court which of Exhibit C1 and C5 they actually signed. More also, Exhibit C1 and C5 are both photocopies and the defendant never objected to their admissibility. In the absence of the original documents, from which the court can see the original signatures, it will be difficult for this court to compare signatures which have been reprinted by the photocopy process. The claimant has shown that he was employed by the defendant and he said his employment letter is Exhibit C1. As I have said above, in the absence of evidence from the people who were indicated on the exhibits to have signed them or in the absence of expert evidence, this court is unable to come to a finding that Exhibit C1 and other documents produced by the claimant were not issued by the defendant or that they are forgeries. Going by the standard of proof placed on him, the claimant has sufficiently shown that he was employed vide Exhibit C1 on 8th July 2000. This court is therefore going to take the date of claimant’s employment from 8th July 2000. In the 2nd category of staff eligible for the defendant’s gratuity, the staff must have spent 5 years in service as at 1st September 2005. The claimant was employed on 8th July 2000. That is to say as at 1st September 2005, he was 5 years and a month in the employment. The parties’ evidence has shown that the claimant was a permanent staff and he was not dismissed from employment. The claimant is thus qualified to be paid gratuity under the 2nd category. The claimant claims the sum of N27,069,826.32 as gratuity. His case is that he worked in the old UBA for 5 years before the merger and after the merger he worked for 4 years before his resignation. The total number of years he spent with the defendant was 9 years. The claimant further said that by Exhibit C17, he is entitled to 90% of his basic salary, housing, lunch and transport allowances. The claimant stated how much he earned as monthly basic salary and the housing, lunch and transport allowances per annum. It appears it is the calculation of the 90% of these sums based on 9 years of service that amounted to the sum claimed by the claimant as gratuity. By his pleading in paragraphs 23, 24 and 25 of his statement of facts, the claimant has clearly misconstrued his entitlement under Exhibit C17. As at the time of the merger in September 2005, the claimant was only 5 years in the defendant’s employment. By the old UBA policy in Exhibit C17, the claimant’s entitlement can only be calculated based on the percentage assigned to staff that had spent 5 years by 1st September 2005. The percentage for 5 years staff is 70% of annual earning. The claimant’s calculation of 90% based on 9 years’ service is erroneous because he has not put in 9 years in service as at 1st September 2005. Using 9 years as basis for his calculation is an attempt to bring his claim within the 1st category of which he is still not qualified not having spent 10 years in employment as at the date of his resignation. In any case, from July 2000 to June 2008 is 8 years not 9 years. From the foregoing analysis, is not in doubt that the sum claimed by the claimant as gratuity is incorrect having been arrived at based on a wrong computation. Since I have held in this judgment that the claimant is entitled to gratuity by virtue of the condition of service, this court is of the view that recalculating the sum due to the claimant will serve the course of justice better than to dismiss the claimant’s claim for gratuity for being a wrong calculation. The claimant’s gratuity should be calculated based on 70% of annul basic salary and annual housing, lunch and transport allowances. The claimant pleaded in paragraph 24 of his statement of fact and he also gave evidence to the fact that his last basic salary per month was N175,846.54; his housing allowance was N390,000.00 per annum; his lunch allowance was N123,600.00 per annum, and his transport allowance was N384,000.00 per annum. In paragraph 2 of the statement of defence, the defendant admitted the claimant was being paid these sums. The sum due to the claimant as gratuity is computed thus- i. The claimant’s salary per annum at N175,846.54 monthly basic salary is the total of N2,110,158.48. 70% of this sum is N1,477,110.93 ii. 70% of the housing allowance of N390,000.00 per annum is N273,000.00 iii. 70% of lunch allowance of N123,600.00 per annum is N86,520.00 iv. 70% of transport allowance of N384,000.00 per annum is N268,000.00 The total sum due to the claimant as gratuity under the old UBA policy in Exhibit C17 is the sum of N2,104,630.93. (Two Million, One Hundred and Four Thousand, Six Hundred and Thirty Naira, Ninety Three Kobo). This is the sum the court finds to award to the claimant in respect of his claim for gratuity. Other items which constitute the claimant’s monetary claim in this suit are 3 months’ salary in lieu of notice the defendant was expected to give to him and his Redundancy/severance package in the sum of N529,539.62 and N27,069,826.32 respectively. In his evidence, the claimant said he is entitled to the sum by virtue of Exhibit C17. The claimant said in his testimony that severance packages are paid to staff whose employment is severed by the defendant as a result of no fault of the staff. The defendant averred that the claimant is not entitled to 3 months’ salary in lieu of notice because he personally resigned from his employment and not that his employment was terminated by the defendant. The defendant only pays salary in lieu to those who were laid off. The defendant also contended that the claimant is not entitled to severance allowance because he resigned and not that his employment was severed. The claimant’s case is that he was made to resign on ground of redundancy. The part of Exhibit C17 touching on this head of the claimant’s claims is paragraph 8.6.6 at page 40 to 41. The provision reads: “REDUNDANCY Redundancy is defined as an involuntary loss of employment through no fault of the employee caused by excess of manpower or contraction of available work through causes beyond the control of the employee. Where UBA group is constrained to apply this provision • There must be evidence that UBA has conducted consultative talks with the employee through his immediate supervisor. • The last-in-first-out principle among others merit oriented principle must be applied except where the merit and ability of a less senior member of employee is in the opinion of management, greater than that of an employee longer in service. • The employee first line supervisor should inform affected staff. • employee letter of resignation should be addressed to the HCM through the supervisor • Failure to resign within the advised period becomes a sanctionable offence. Benefits of redundancy/severance of employee: UBA group shall give an employee who is affected by provision of redundancy policy notice or make payment to the employee in lieu of notice as follows- ST-MGR- Three months duration or payment of 3 months basic salary in lieu of notice SM & Above- One month duration or 1 month basic salary in lieu of notice Upon resignation as a result of redundancy policy of UBA group, employee shall be entitled to certain benefits UBA group compensation policy. The compensation benefit shall be computed as- 100%of basic salary + housing + transport + lunch for each year the affected employee have spent in the employment of UBA group” From the foregoing provision, whether the claimant is entitled to salary in lieu of notice and the redundancy/severance package will depend on whether he resigned on the prompting of the defendant on ground of redundancy. It is the claimant’s case that in June 2008, he was told by the defendant’s Regional Director, one Nnorom Okechukwu, to resign from the employment of the defendant. The claimant said the said Mr. Nnorom Okechukwu also followed the oral information up with a letter dated 27th June 2008, that is Exhibit C20, where the claimant was advised to resign on ground of redundancy. The claimant said that on 30th June 2008, he was compelled to resign his employment and he resigned by Exhibit C12. In his further evidence, the claimant said his resignation was not voluntary. On his part, DW1 told this court that the claimant resigned his appointment voluntarily on 30th June 2008 by his resignation letter of same date. DW1 said the claimant was not told by any staff of the defendant to resign. To show that he resigned on the prompting of the defendant, the claimant put Exhibit C20 in evidence as the letter in which he was advised to resign. The claimant said in his evidence that the letter was written to him by Nnorom Okechukwu. I see that the said name appears on the letter but the letter was not signed by the writer. I cannot place any reliance on a letter that is not signed by the purported maker. Also, I have read the claimant’s resignation letter, Exhibit C12, and I do not find anything in it to show that the claimant’s resignation was based on redundancy or that he was harassed to resign. The content of Exhibit C12 indicates a voluntary resignation of employment by the claimant. In his written address, the claimant’s counsel wanted this court to rely on Exhibit C11, the exit interview form, to infer that the claimant was harassed to resign his employment. In that exhibit, the claimant, in answer to the question as to what he liked the least about his job and/or UBA, wrote “Harassment”. He did not explain in the exhibit in what way he was harassed neither is it shown in his answer that the harassment was in relation to his resignation. The claimant also said he resigned because he will be sanctioned if he didn’t resign. Under the condition of service, the claimant is liable to be sanctioned for disobeying instructions to resign if it came from his first line or immediate supervisor. Therefore, for him to be afraid of sanction if he did not resign as allegedly directed, he must have ensured that the advice or information to resign came from his “immediate supervisor” or “first line supervisor”. In paragraph 11 and 12 of his statement of facts, the claimant said he received the information to resign from one Mr. Okechukwu Nnorom, the Regional Director of the defendant. The claimant has not shown that the said person was his immediate or first line supervisor as to take the information seriously or be afraid of sanction for refusal. I am not convinced the claimant’s resignation was informed by the defendant. I find that the claimant resigned voluntarily. In that case, the claimant is not qualified for payment of either the 3 months’ Salary in lieu of notice or the severance/redundancy package in the condition of service. These items of claim in relief (a) fail and they are accordingly dismissed. When the claimant sought in relief (e) an order directing the defendant to issue him with a discharge certificate, it will appear the claimant is aware that his case is a voluntary resignation. In his written address, the claimant’s counsel cited paragraph 8.4.1 of Exhibit C17 as the provision of the condition of service under which the claim is entitled to be given letter of disengagement by the defendant. In Exhibit C17, a reading of the entire provisions under paragraph 8.3, 8.4 and 8.5 will show that issuance of letter of disengagement or discharge certificate is only available to staff who resigned voluntarily. Since it is found in this judgment that the claimant’s resignation was voluntary, he is entitled to be issued a letter of disengagement by the defendant as required in paragraph 8.4.1 of Exhibit C17. The claimant has also claimed the sum of N1,203,734.00 being his leave allowances for 124 working days for 7 years. In his evidence, the claimant said for all the nine years he has worked for the defendant, he only went on leave of 22 days. But the defendant’s position is that the claimant is not entitled to leave allowances because he did not go for leave in 2008. Besides merely saying he went on leave for 22 days only in 9 years, the claimant offered no basis for the sum claimed under this head of his claim. The claimant did not prove how he arrived at the sum or how he became entitled to it. The defendant’s denial of the claim put a duty on the claimant to establish the claim. He has failed to do that. I find that the claimant has not proved his claim for leave encashment. This item of claim in relief (a) fails and it is dismissed. Perhaps in anticipation that reliefs (a) to (c) might fail, the claimant sought an alternative relief seeking a declaration that he is still in the employment of the defendant and is entitled to arrears of salary and other benefits. In Exhibit C17, one of the ways to disengage from the defendant’s employment is resignation. See paragraph 8.3. In paragraph 13 of the statement of fact, the claimant pleaded that he resigned from his employment on 30th June 2008. He also gave evidence to that effect and tendered his resignation letter. By the act of resignation, the claimant is no longer in the defendant’s employment. There is no way this court can declare that the claimant’s employment still subsists. The alternative relief sought by the claimant has no merit and it is dismissed. ISSUE 2: WHETHER THE DEFENDANT IS ENTITLED TO THE COUNTER CLAIM The defendant has counter claimed against the claimant. The reliefs sought by it are: 1. The sum of N1,508,657.95 (One Million, Five Hundred and Eight Thousand, Six Hundred and Fifty Seven Naira Ninety Five Kobo) being the balance of the loan the claimant took from the defendant while in her employment plus the accrued interest. 2. Interest on the said sum of N1,508,657.95 (One Million, Five Hundred and Eight Thousand, Six Hundred and Fifty Seven Naira Ninety Five Kobo) at the interest rate of 22% per annum from 24th day of March 2011 until judgment is delivered. 3. 10% interest on the judgment debt from the day of judgment until judgment debt and interest are fully paid. In the evidence of DW1, he testified that as at August 2008, the claimant’s account position showed that the claimant was indebted to the defendant to the sum of N2,263,497.76. DW1 went on to say that the claimant should pay the sum of N1, 508,657.95 to the defendant being the balance of the loan the claimant took from the defendant while in the defendant’s employment. The claimant denied any liability to the defendant and in his evidence; the claimant said he does not owe the defendant as he did not take any loan from the defendant. To buttress his position, the claimant tendered his account statement with the defendant as Exhibit C22. In my view, it is not for the claimant to prove that he does not owe the defendant. The burden is that of the defendant to prove that the claimant is indebted to it. By denying liability for the counter claim, the claimant has effectively pushed the burden of proof on the defendant. The defendant’s case is that the sum of money claimed against the claimant is the balance of the loan the claimant took from the defendant. However, the defendant failed to tell this court how and when the loan was given, how much was the loan, how it was being paid back as to remain the balance now being claimed from the claimant. The sum of the counter claim is N1,508,657.95, but in his evidence, DW1 said the claimant’s indebtedness as at August 2008 was the sum of N2,263,497.76. The defendant is required to explain how the sum has reduced from N2,263,497.76 in 2008 to N1,508,657.95 in 2014. When he was being cross-examined by the claimant’s counsel, DW1 said the counter claim is from the loan taken by the claimant but he does not know when the loan was given nor the principal sum of the loan and does not have the offer letter. These and several other explanations have not been offered by the defendant. It leaves the counter claim open to speculation. In his written address, the defendant’s counsel argued that Exhibits C19 and C22, which were tendered by the claimant are evidence of the indebtedness of the claimant to the defendant. I have looked at these documents and it is my view that they do not support the defendant’s claim at all. They are rather at variance with the defendant’s claim. Exhibit C19 is a mere demand letter for the sum of N5,162,392.91 but did not contain evidence of how the sum demanded came about. Besides the fact that Exhibit C19 is not evidence or proof of the counter claim, the sum demanded in the letter is also different from the sum claimed in this suit. The claimant’s statement of account, Exhibit C22 reveal that as at August 2008, the claimant’s debit balance was N116,992 and not N2,263,497.76 as alleged by the defendant. These two exhibits hardly have any support to the defendant’s counter claim. Without wasting too much time on this issue, I find that the defendant has not proved the counter claim. The counter claim fails. In the final result of this judgment, the claimant succeeds in part of his claims while the defendant’s counter claim is dismissed. This court hereby orders as follows- 1. The defendant is ordered to pay the sum of N2,104,630.93. (Two Million, One Hundred and Four Thousand, Six Hundred and Thirty Naira, Ninety Three Kobo) to the claimant being the sum the claimant is entitled to as gratuity under the old UBA policy in the Staff Manual Handbook. 2. The defendant is also ordered to issue the claimant with a letter of disengagement by the defendant as required in paragraph 8.4.1 of the Staff Manual Handbook. 3. The sum in (1) above must be paid to the claimant within 30 days from the date of this judgment and if not paid within the period, the sum shall attract 10% interest per annum until it is paid. The parties are to bear their cost. Judgment is delivered accordingly Hon. Justice O. Y. Anuwe Judge