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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 19, 2016 SUIT NO. NICN/LA/291/2013 BETWEEN Mr. Israel Anyanwu - Claimant AND ADIC Insurance Limited - Defendant REPRESENTATION I. O. Latunde-Dada, for the claimant. Olawale Adeogun, with Mrs. O. Tiku, Omotayo Ogunbadewa, Abraham Oladipupo, Miss Nneoma Mbelede and Miss Betty Biayeibo, for the defendant. JUDGMENT On 5th June 2013, the claimant filed a complaint against the defendant alongside the statement of facts, list of witness(es), claimant’s witness statement on oath, list of documents and copies of the documents to be relied upon at the trial. By the statement of claim, the claimant is praying for the following reliefs – 1. The sum of N4,080,531.05 (Four Million, and Eighty Thousand, Five Hundred and Thirty One Naira, Five Kobo only) being the terminal benefit of the claimant for serving the defendant for 9 years. 2. Interest on the said sum at the rate of 21% from April 2009 till date of judgment. There are variations between the reliefs the claimant claimed in the complaint filed and those in the statement of facts. As per the complaint, the claimant claimed for “interest on the sum at the rate of 10% per annum from April 2009 until Judgment and thereafter at the rate determined by the Court” as well as “Cost of the action”. In the statement of facts, however, the claimant not only did not claim for cost, but the percentage of interest claimed is 21% (without indicating whether it is per annum or some other period); and nothing is said of interest after judgment. The law is that a statement of claim supersedes the writ of summons. Hence if a relief is claimed in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned but a relief endorsed in the statement of claim which is not in the writ subsists. See Otu v. ACB [2008] Vol. 3 MJSC 191 at 219 – 220, Eze v. George [1993] 2 NWLR (Pt. 273) and Teller v. Akere [1958] WNLR 25. I shall accordingly restrict myself to the reliefs as claimed in the statement of facts despite the fact that the claimant in paragraph 14 of his statement on oath deposed that his claims are as per the endorsement on the Form of Complaint and the statement of facts. In denying the allegations in the claimant’s statement of facts, the defendant filed its statement of defence, list of witnesses, defendant’s witness statement on oath, list of documents and copies of the documents. The defendant later sought leave of Court, which was granted on 17th November 2014, to file an amended statement of defence, defendant’s witness statement on oath, additional list of documents and copies of the additional documents. At the trial, the claimant testified for himself as CW, while Mrs. Vivian Ikwuneme, Head of Human Capital Management Department of the defendant, testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses, which they did. The defendant’s written address is dated and filed on 2nd June 2015, while that of the claimant is dated 13th October 2015 but filed on 14th October 2015. The defendant’s reply on points of law is dated 23rd November 2015 but filed on 24th November 2015. The defendant, in arguing its case, first gave the back ground facts of the case. To the defendant, it employed the claimant on 15th February 2000 upon the acceptance of its offer letter by the claimant. As a result of the acquisition of the defendant by NSIA, all staff compensation package including that of the claimant was reviewed upward by the Board resulting in the new terms of employment of 2006, which include reassignment of roles/positions (without necessarily entailing promotion) and new compensatory packages with the aim of ensuring that all staff are treated fairly. That the claimant on 30th October 2006, consequent upon the Board’s decision to upwardly review all staff salaries, was informed of his new position as an Assistant Manager from Manager III. Also on 17th March 2009 the claimant’s compensation package was further reviewed in line with the Board’s decision as he held the position of Senior Analyst II. Howbeit, he was not promoted by the defendant, neither was any form of promotion intended by the defendant since all that was done was just a mere reassignment of roles and general upgrade of all staff compensation package. The defendant went on that on 24th April 2009, as a result of a reorganization exercise and upon discovery that the claimant could not fit into any department in its company, it terminated the claimant’s appointment in accordance with his employment letter of 15th February 2000. The claimant at the said time had only spent 9 years and 2 months in the defendant’s company. That the claimant later wrote to the defendant via his letter dated 27th April 2009 pleading that he be allowed to resign instead of the termination, but this request was refused by the defendant. That on 22nd June 2009, the defendant paid the claimant the sum of N137,609.62 (One Hundred and Thirty-Seven Thousand, Six Hundred and Nine Naira, Sixty-Two Kobo) being final benefit due to him in accordance with the defendant’s employees handbook. That the claimant, having acknowledged receipt of the said sum, protested that he has not been fully paid his entitlement despite several explanations done by the defendant on how the sum was arrived at. Thereafter, the claimant instituted this action against the defendant claiming the sum of N4,080,531.05 as the terminal benefit due to him from the defendant. The defendant then framed a sole issue for the determination of this Court, to wit: Whether considering the facts of this case and all the evidence put before the Honourable Court, the Court can safely conclude that the claimant has established his claim against the defendant. In answer, the defendant submitted that the claimant’s claims are without a lawful basis, unsupported, bad in law and they must fail in their entirety. Furthermore, that while the claimant continues to claim that he is entitled to the sum of N4,080,531.05 (Four Million and Eighty Thousand, Five Hundred and Thirty-One Naira, Five Kobo) only as terminal benefit from the defendant he has failed to unburden himself of the claim he asserts which is to show how he came about the amount he now claims against the defendant. That it is trite law that he who asserts must prove, citing Zenith Bank Plc v. Ekereuwem [2012] 4 NWLR (Pt. 1290) 207, Daodu v. NNPC [1998] 2 NWLR (Pt. 538) 355, Ituama v. Akpe-Ime [2000] 7 SC (Pt. II) 24; [2000] 12 NWLR (Pt. 680) 156 and Agbi v. Ogbeh [2006] 11 NWLR (Pt. 990) 65. That the failure of the claimant to provide adequate and compelling evidence before this Court in discharge of the burden of proof placed upon him by the law renders his claim baseless and without merit leaving this Court with no other option than to dismiss same. To further drive home its submission, the defendant invited the Court to take a careful look at the claimant’s statement on oath and his entire statement of claim. That the Court will discover that there is no place within the said statement where the claimant averred or testified that the defendant indeed agreed to pay him such an amount he is claiming, particularly under the items listed in paragraphs 12 of his statement of facts. Instead he heavily relied on the defendant’s employment handbook and one ANNABEL ESANBOR’s entitlement computation, which in any event did not substantiate his claim against the defendant. That it is trite that employment is basically governed by rule of contract and documentations, referring to Union Bank (Nig.) Ltd v. Ogboh [1991] 1 NWLR (Pt. 167) 369 and Olaniyan v. University of Lagos [1985] NWLR (Pt. 9) 599. That in this case, the relevant documents the Court must look at in determining the terms of employment as well as terminal benefits of the claimant are the claimant’s employment letter dated 15th February 2000 (Exhibit D3), the new terms of employment letter dated 30th October 2006 (Exhibit D4), the Employees’ Handbook (Exhibit D1) and the claimant’s letter of termination dated 24th April 2009 (Exhibit D6). To the defendant, from the pleadings and evidence put before the Court by DW1, the circumstance upon which the claimant’s employment was determined by the defendant was based on redundancy. That according to the DW1’s testimony under cross-examination she stated thus: Question: What are the reasons for terminating the claimant’s employment? Answer: The letter of termination says it was termination due to restructuring. That apart from this testimony, DW1 in her statement on oath of 12th May 2015, particularly in paragraphs 4 and 6 stated that the claimant’s employment was terminated on the basis of redundancy. That this testimony remains uncontroverted by the claimant and it is trite law that facts undisputed are deemed admitted, referring to Ogolo v. Fubara [2003] 11 NWLR (Pt. 831) 231. The defendant continued that aside the above, Exhibit D6 (Termination of Appointment) and Exhibit D9 (claimant’s letter to defendant) reveal that the claimant’s employment was terminated on the basis of redundancy. It is, therefore, the defendant’s submission that all conditions and benefits claimed by the claimant can only be considered in accordance with the terms of employment as it relates to termination of employment on ground of redundancy, referring the court to Peugeot Automobile Nigeria Ltd v. Oje & ors [1997] 11 NWLR (Pt. 530) 635, where the Court defined redundancy as follows – Redundancy in service in my view, is a mode of removing off an employee from service when his post is declared “redundant” by his employee. It is not a voluntary or forced retirement. It is not a dismissal from service. It is not a voluntary or forced resignation. It is not a termination of appointment as is known in public service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared “redundant”. The defendant, therefore, submitted in the light of the above that the proper documents the Court ought to consider in determining the entitlement of the claimant in the instant case are the employment letter dated 15th February 2000 (Exhibit D3), which shows the starting date of the employment contract, the Employees’ Handbook (Exhibit D1), which regulates the contractual terms, and the claimant’s letter of termination dated 24th April 2009 (Exhibit D6), which reveals the ending date of the contract. It is the further submission of the defendant that in accordance with the agreements of parties, the principal document that regulates employees benefit upon disengagement based on redundancy is the defendant’s Handbook (Exhibit D1), which the claimant in the instant case also relied on, referring to paragraph 3(a)(ii) of Exhibit D1 which states thus – If after such search the company is unable to find alternative employment to redundant staff, they shall be given the notice of termination or salaries in lieu of notice as specified above (emphasis is the defendant’s). To the defendant, “salaries in lieu of notice as specified above” referred to here is explained in details at page 52 of Exhibit D1 and it specifically provides that employees holding positions such as that of the claimant (ET to DM) will only be entitled to one month’s salary. That in the case of Aminu v. Afribank Plc & anor [2010] 18 NLLR (Pt. 49) at 37, the Court held thus – In the circumstance, the court is left with no choice than to resolve the issue of payment of redundancy benefits on the basis of the last earned salary as the appropriate criteria upon which the computation of the disengagement benefits should be based in favour of the claimants. We are strengthened here by the persuasive view of the practice in the UK as stated by the House of Lords in the case of Barry v. Midland Bank plc (1999) IRLR 581, HL referred to in the publication, IDS Redundancy: Employment Law Handbook, published in 2008 by Incomes Data Services Ltd, London. Pages 142-158 at p. 148. The learned commentators in the publication alluded to the fact that the Calculation of the redundancy pay of an employee is based on “employee’s terminal pay” which is defined as “his or her salary at the time he or she ceased to work for the employer. That the defendant in complying with the above, which is also in line with the provisions of Exhibit D1, has paid the defendant (sic) all his entitlement as evidenced in Exhibits C6, D2, D7 and D10, praying the Court to so hold. The defendant went on to submit that all the documents tendered in evidence by both the claimant and defendant point to one direction, which is the fact that the claimant has been fairly treated and fully paid all his benefit upon the termination of his contract of employment. The defendant then urged the Court to take a look at Exhibit D3, which is the letter of employment, and Exhibit D4, the letter of New Terms of Employment, and the Court will agree with the defendant that the only payment permitted and mandatory for the defendant to pay the claimant is one month salary in lieu of notice. According to the relevant section of Exhibit D3, particularly at paragraph 5, that it was clearly stated thus – The appointment is subject to a probationary period of twelve months and will be confirmed subject to your satisfactory performance of your duties at the end of the probationary period. The appointment may also be terminated by given one month’s notice or payment of one month’s salary in lieu of notice by either party” (emphasis is the defendant’s). That this section of the exhibit was also referred to in Exhibit D4, particularly in paragraph number 3, where its states as follows – Please note that disengagement of service by both parties as contained in our letter of offer of employment is still valid. To the defendant, the effect of the above is that where the claimant or the defendant desires to terminate the employment contract, same will only be allowed either by the giving of a month’s notice or a one month’s salary in lieu of notice. That it is, therefore, untenable and baseless for the claimant to choose to deviate from this agreement and set a new term of contract for terminal benefits for himself after he had already received all his entitlement under the contract of employment, referring to Isheno v. Julius Berger (Nig) Plc [2008] 6 NWLR (Pt. 1084) at 601 – 610, The Supreme Court held thus: Where the employer fires an employee in compliance with the terms and conditions of their contract of employment, there is nothing the court can do as such termination is valid in the eyes of the law. It is only where the employer in terminating or dispensing with the services of an employee, does so without due regard to the terms and conditions of the contract of employment between the parties that problems arise as such a termination is usually not tolerated by the courts and are, without hesitation, usually declared wrongful and appropriate measure of damages awarded to the plaintiff. In the instant case, although the respondent has the right to bring the relationship of master and servant to an end either by termination, retirement, redundancy or summary dismissal, the respondent chose to do so under redundancy and duly calculated the redundancy benefits of the appellant who refused to sign for and collect same, rather choosing to go gold-digging. Furthermore, that the claimant in paragraph 13 of his statement of claim averred that he arrived at the sum of N4,080,531.05 as his terminal benefit by relying on the provisions of the defendant’s Handbook (Exhibit D1). To the defendant, the claimant has failed to prove this before the Court, neither has he shown during trial or even in his pleadings where such calculations were clearly stated. On the contrary, that the provisions of the Handbook at page 52 under the column headed FORCED RESIGNATION/REDUNDANCY states that persons holding such positions as the claimant at the time of disengagement from the defendant’s company under the aforementioned heading will only be entitled to one month’s basic salary. That the defendant has given evidence that the claimant’s employment was terminated on the ground of redundancy and the claimant has not contradicted this piece of evidence either in his pleadings or during trial; rather he tried to confuse the Court by bringing a claim which falls under the entitlement of a retired person under Exhibit D1. This, to the defendant, is impermissible, frivolous and gold-digging and this Court must not close its eyes to the mischievous act, referring to Isheno v. Julius Berger (Nig) Plc (supra). The defendant went on that the claimant in order to put wool over the face of the Court alleged in paragraph 14 of his statement of claim that one ANNABEL ESANBOR was paid a terminal benefit in line with what he now claims under the contract. However, that under cross-examination the claimant testified as follows – Question: Your terms of employment is strictly governed by Exhibits C1, C2 and C3. Answer: Yes, in addition to the Handbook. Question: So your claim does not relate to ANNABEL’s computation package. Answer: No, it is based on the Handbook. To the defendant, apart from the above, the purported document containing the said ANNABEL ESANBOR is neither signed, stamped or authenticated by any means. That the said document remains a mere piece of paper that can be produced by anyone, more particularly when it was not tendered by the owner or the defendant who should ordinarily have a copy of such document, if at all such exists. The defendant urged the Court to note the fact that the defendant denied this fact and the claimant has put no evidence before the Court to establish this claim; more so that the said document has absolutely nothing to do with the contract between the claimant and the defendant on employment terms, praying the Court to so hold. The defendant the commented on the conduct of claimant during trial. Here, the defendant submitted that the claimant in this suit is not a witness of truth as his testimony is misleading and lacks all merit. That the Court cannot rely on same in reaching a fair decision in this suit. That the claimant in paragraph 7 of his statement on oath stated before this Court that his employment was terminated by a letter dated 24th April 2009. However, under cross-examination the claimant attempted to mislead the Court as the following ensued – Question: Show the Court the category your claim falls under the defendant’s Handbook? Answer: Under resignation. Question: Did you resign your appointment with the defendant, Yes or No? Answer: Yes. Question: So the defendant didn’t terminate your appointment, you resigned? Answer: Yes. Question: It was a resignation letter you issued? Answer: Yes. Question: I put it to you that the defendant terminated your appointment? Answer: The defendant declared me redundant. That from the above, it is glaring that the claimant has only come to this Court to present misleading stories with the mindset of circumventing justice. To further buttress this point, the defendant urged the Court to look into the claimant’s letter of 22nd June 2009 (Exhibit C6) headed “TERMINATION OF APPOINTMENT – MYSELF” and 27th April 2009 (Exhibit D9) where the claimant was profusely pleading for his termination to be converted to resignation. That it is, therefore, surprising that the claimant will stand before the Court to lie under oath that he resigned when on the face of copious evidence, it is clear that his employment was terminated on ground of redundancy. To the defendant, another unbelievable testimony of the claimant was when he was asked of his monthly salary before the termination of his employment. That the claimant in answering this question on oath again misled the Court by stating the wrong figure of N628,000.00 when in actual fact his pay slip even to his knowledge reads N194,001.61. That the claimant did not put before this Court any document to prove this fact even when the defendant showed through Exhibits Dl0(a) – D10(c) the claimant’s correct monthly salary, which is N194,001.61. That as if the above was not enough, the claimant lied on oath that his annual salary is about N6,000,000.00 (Six Million Naira) forgetting that he already claimed under paragraph 12 of his statement of claim that his Gross pay for each year was N3,854,736.00 (Three Million, Eight Hundred and Fifty-Four Thousand, Seven Hundred and Thirty-Six Naira). It is, therefore, the defendant’s submission that the Court must disregard the claimant’s testimony and dismiss this entire suit. Finally, the defendant submitted that the claimant’s prayers 2 and 3 must fail as same is dependent on prayer one. That the claimant seeks for the cost of this action but has failed to either plead same or put in any evidence to substantiate the claim. The Court, therefore, is not expected to act on same as it is trite that facts not pleaded go to no issue. Likewise, on the issue of interest, that the claimant having been paid his full and final entitlement cannot continue to seek further payments from the defendant as per his claim for the interest sum of l0% on the purported sum, praying the Court to so hold. In conclusion, the defendant urged the Court to resolve the sole issue it raised in its favour and dismiss with substantial cost the claimant’s case. The claimant in reaction equally framed one issue for the determination of the Court, namely – Whether considering the terms and contents of the defendant’s Handbook, the claimant is entitled to the relief sought. To the claimant, the contents of the defendant’s Handbook form part of the contract between the claimant and the defendant. That the claimant in establishing this tendered Exhibits C1 and C2; and at the direction of the Court forwarded a copy of the defendant’s Handbook, which said Handbook forms part of the records of the Court in this case. That it is pertinent to state that though the defendants in paragraphs 5 and 6 of its amended statement of defence copiously referred to the Handbook, it (defendant) deliberately omitted to tender same in evidence knowing that the contents are not favourable to its case, urging the Court in the circumstances to exercise the powers vested in it by the provision of section 14 of the National Industrial Court (NIC) Act 2006 to apply the terms and contents of the defendant’s Handbook in its entirety particularly at pages 50 – 54 of same. That the contents of the said pages 50 – 54 of the Handbook clearly state of spell out the steps and procedures to be followed and how to calculate the actual terminal benefits in cases of this nature. To the claimant, it is not in dispute between the parties that the claimant spent 9 years and 2 months. That the claimant testified to this effect in his statement on oath. That the evidence before the Court also shows that the over 9 (nine) years period spent by the claimant in the service of the defendant was unbroken. Furthermore, that the evidence before the Court particularly Exhibit C4 and the one tendered by the defendant shows that the claimant was rendered redundant by the defendant after serving the defendant for over a period of 9 (nine) years. That it is the defendant’s case that in calculating the claimant’s terminal benefits it acted in accordance with the contents of Column 2 of page 52 of the Handbook. The said column is tilted “FORCED RESIGNATION/REDUNDANCY”. To the claimant, in order for the Court to arrive at a just determination of this case, column 2 of page 52 of the defendant’s Handbook should not be read in isolation, but in conjunction with the contents of page 53, clause 3(a)(i) and (ii), which provides for redundancy and the procedures or steps to be taken before a member of staff can be rendered redundant. That “there is evidence before the Court, whether documentary or orally, to show that the defendant complied with these provisions of the handbook”. The claimant then submitted and urged the Court to hold that the defendant failed and or refused to tender the Handbook because it knows that the contents are unfavourable to it, relying on section 167(d) of the Evidence Act 2011. That the defendant having failed to establish compliance with the provisions of its Handbook on redundancy as contained at page 53 of same, Exhibit C4, was issued in bad faith, considering the fact that the claimant has served the defendant for well over a period of 9 (nine) years. The claimant then asked why, for instance, he was not given the option to resign or why was he not allowed to attain ten (10) years? That the answer simply put is to avoid financial liabilities. The claimant went on to urge the Court, in the light of the contents of the defendant’s Handbook particularly at page 52 of same, to treat case of the claimant as that of resignation and not that of redundancy. That the evidence before the Court is to the effect that the claimant has put in over 9 (nine) years’ period of service in the service of the defendant and the said 9 (nine) years were unbroken. That the Court can exercise its powers under section 14 of the NIC Act 2006. The claimant urged the Court to discountenance all the arguments/submissions canvassed by defendant’s counsel in that they were all based on the assumption that the required procedures in the Handbook were followed by the defendant before rendering the claimant redundant; that, however, is not the case in this situation. In conclusion, the claimant urged the Court to grant the relief sought by the claimant. In its reply on points of law, the defendant contended that the position of the law is clear that the burden of proving a fact always lies on him who asserts, citing section 131 of the Evidence Act 2011. That the claimant in his final written address has submitted that the defendant has failed to comply with the provision of its Handbook on redundancy as contained in page 53 of the Handbook. To the defendant, this assertion is an afterthought as same was never pleaded neither did he lead any evidence in support of this assertion. That the law is clear that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, referring to section 132 of the Evidence Act 2011, and urging the Court to so hold. Also, that the claimant argued that the defendant failed to tender the said Handbook before this Court. Here, the defendant simply reiterated the provision of section 131 of the Evidence Act 2011. In any event that the said Handbook is already before the Court. The defendant went on to urge the Court to disregard all the arguments of the claimant as same are in conflict resulting to a summersault by him. That in one breath the claimant argued in paragraph 3.10 that he was rendered redundant as Exhibit C4 was issued in bad faith, while in another breath particularly in paragraph 3.11, the claimant argued that it is disengagement and it be treated as resignation and not redundancy. It is the defendant’s submission that the Court cannot rely on this unsound argument as same is not supported by any evidence to show that the claimant’s disengagement was in bad faith. To the defendant, the claimant vide its final written address also claimed an interest rate of 10% per annum until judgment is given. That the said claim is not only speculative but also sentimental. That such category of interest totally falls outside the ambit of relief an aggrieved party can claim and be entitled to where there is an alleged breach of contract of employment as in the instant case. Consequently, that his remedy only lies in legitimate entitlements due to him at the time the employment was brought to an end, which award of salary for the period of notice and other legitimate entitlements that may be due to him, citing Gabriel Ativie v. Kabel Metal Nig. Ltd [2008] 10 NWLR (Pt. 1095) 399. That it is an indisputable fact from the supposed contract of employment that the claimant is not entitled to such an interest as erroneously claimed. Finally, that the claimant has urged this Court to discountenance the defendant’s argument as same is based on the assumption of compliance with the Handbook before rendering the claimant redundant. To the defendant, this Court is a court of record that bases its decision on evidence and not sympathy. That the failure of the claimant to present convincing facts and evidence to prove all allegations and claims against the defendant should move this Court to apply section 133 of the Evidence Act 2011 in respect of this suit, which states that – In civil cases, the burden of first proving existence or nonexistence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regarding being had to any presumption that may arise on the pleadings. Also referred to the Court is Nigerian Postal Service v. Ibrahim Musa [2013] LPELR-20780(CA), where it was held as follows – The fact that the Defendant did not call any evidence to support the so called statement of Defence is fatal to her case. See Alhaji Adebayo Akande Vs Jimoh Adisa & Ors (2012)15 NWLR (Part 1324) 538 at 565 A - D per T Muhammed JSC who said: “As far back as 1976 this court settled the law in the case of Lewis & Peat (NRI) Ltd. vs. Akhimien (1976) 10 5CC 360 at 365, as follows: 1. “Where there is no issue the question of burden of proof does not arise. 2. On the burden of proof on the pleading, the rule is that the burden of proof rests on the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. 3. On the burden of adducing evidence: the burden of proof may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating the burden of proof rests squarely on the party who would fail if no evidence at all or no more evidence as the case may be were given on either side. In other words, it again rests before evidence is taken by the court of trial on the party who asserts the affirmative of the issue. To the defendant, the claimant has failed to show any iota of evidence in support of all the reliefs sought and as a result the Court is left with only the option of dismissing this suit in its entirety with substantial cost for lack of merit. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. From paragraph 16 of the claimant’s statement of facts, the claimant’s case is for “the sum of N4,080,531.05 (Four Million and Eighty Thousand, Five Hundred and Thirty One Naira, Five Kobo Only) being the Claimant’s terminal benefit for serving the defendant for 9 years together with interest at the rate of 21% from April 2009 till date of judgment”. By paragraph 12 of the same statement of facts, the claimant pleaded as follows – The claimant states that contrary to the contents of the Defendant’s letter dated 25th June 2009 his terminal benefits are as follows – i. Total monetary package for a year as per letter of 17/03/2009 N5,046,200.00 ii. Nos of years served; 9 years + 2 months Gross pay for each year served (severance package) 3,854,736.00 iii. Earned 13th month 16,395.05 iv. Earned variable pay 209,400.00 Total N4,080,531.05 There is something illogical about all of this. First, the claimant talked of “the contents of the Defendant’s letter dated 25th June 2009”. From all the documents frontloaded and tendered in evidence by both parties, only Exhibit C6 is dated 25th June 2009, and it is a letter from the claimant to the Managing Director of the defendant. It is certainly not a letter written by the defendant; as such it cannot be “the defendant’s letter” as pleaded by the claimant. It is in paragraph 9 of the claimant’s statement on oath that he stated the correct position, which is that the said letter emanated from him wherein he demanded to know how the defendant arrived at the said figure he was paid, to which the defendant replied through a letter dated 13th July 2009 (Exhibit C7) stating how it calculated his terminal benefit. To the extent that the claimant pleaded one thing and averred to another, the piece of oral evidence in that regard cannot be taken seriously. Secondly, the claimant pleaded that his total monetary package for a year as per letter of 17/03/2009 is N5,046,200.00, yet he put his total claim in this case as N4,080,531.05 after some calculations, relying on according to paragraph 13 of the statement of facts particularly pages 50 – 54 of the Handbook of the defendant. How the claimant related pages 50 – 54 of the handbook to the calculations he used as to arrive at the figures in paragraph 12 of the statement of facts, the claimant did not tell the Court. All the claimant said in paragraph 11 of his statement on oath is that “going by the handbook of the Defendant, particularly at Pages 50 – 54 of the same, the Defendant ought to have paid me the sum of N4,080,531.05 as my terminal benefit”; and then in paragraph 12 of same statement on oath, he went on that “the contents of the said pages of the handbook were used by the Defendant in calculating the terminal benefit of one ANNABEL ESANBOR”. Now, pages 50 – 54 of the Handbook (Exhibit C8) make copious provisions on the defendant’s policy as to resignation,, retirement, termination by company and procedures and controls. Other than just referring to these pages of Exhibit C8, nothing else is done by the claimant to show to the Court how he arrived at the calculations and of course the sums of money. For instance, the claimant did not show to this Court how he arrived at N5,046,200.00 as total monetary package for a year and yet be asking for N4,080,531.05 as the relief he claims. Under cross-examination, the claimant even prevaricated about his salary, for which no evidence in the nature of a pay-slip was frontloaded and tendered. Hear the claimant: “As at the time I was terminated [the claimant would later testify that he resigned his appointment and that the defendant declared him redundant], my monthly basic salary was N628,000.00. This is the amount I go home with every month”; “My annual salary was in the neighbourhood of N6,000,000 Million”; and “I said my gross earning per month was N628,000.00”. Invariably, the claimant has difficulty knowing the difference between basic salary and gross salary. What all of this means is that the claimant is expecting this Court to link the Handbook to the calculations he used i.e. figure out how the Handbook was used to arrive at the figures he claims. The claimant must note here that courts are adjudicators, not investigators. By Ucha & anor v. Elechi & ors [2012] 13 NWLR (Pt. 1316) 330 SC, on no account must counsel dump documents on a trial court as no court would spend precious judicial time linking documents to specific areas of a party’s case. See also ANPP v. INEC [2010] 13 NWLR (Pt. 1212) 547, Eze v. Okolagu [2010] 3 NWLR (Pt. 1180) 183 at 211 and Belgore v. Ahmed [2013] 8 NWLR (Pt. 1355) 60 at 99 – 100. The law is that he who asserts must prove. Yet the claimant would argue that the defendant having failed to establish compliance with the provisions of its Handbook on redundancy as contained at page 53 of same, Exhibit C4, was issued in bad faith. Once again noticeable here is the inelegance of counsel to the claimant in referring to “page 53 of…Exhibit C4”. Exhibit C4 is the letter of termination dated April 24, 2009 sent to the claimant by the defendant. It is a one-page letter. Most probably, counsel meant Exhibit C8, the Handbook, which of course has page 53. To prove his claim, the claimant in paragraphs 13 and 14 of the statement of facts as well as paragraphs 11 and 12 of the statement on oath, relied on pages 50 – 54 of the Handbook, Exhibit C8, the calculation of the terminal benefit of one Annabel Esanbor. I had expressed reservations on the claimant’s reference without more to pages of 50 – 54 of Exhibit C8 without stating how the said pages establish his entitlement to the sums he claims. Secondly, except for a case built on unfair labour practice where reference to what obtains to other employees may be used as a yardstick for comparison so as to establish the unfairness in the treatment of the claimant, the law is that ‘a litigant, without more, cannot build a case on the right of another. The litigant must build the case on his/her own right’. See Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, unreported Suit No. NIC/12/2000 delivered on March 30, 2006, Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 delivered on May 8, 2007 and Ondo State Government v. National Association of Nigeria Nurses and Midwives & anor unreported Suit No. NIC/1/2007 the judgment of which was delivered on July 4, 2007. The claimant’s case in the instant suit is not one of an unfair labour practice; as such the reference to calculation of terminal benefit of Annabel Esanbor is uncalled for. The claimant would, however, surreptitiously under cross-examination deny that his claim is based on the calculation done in respect of Annabel Esanbor, insisting that it is based on the Handbook. Even at this, how it is based on the Handbook was not disclosed to the Court beyond referring the Court to “resignation” at page 50 of the Handbook. Lastly, the document evidencing the calculation of the terminal benefit of Annabel Esanbor is Exhibit C9. It is undated and not signed; as such it is worthless and has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). In claiming for N4,080,531.05 as “terminal benefit for serving the defendant for 9 years”, the claimant argued that he was underpaid when the defendant paid him only N137,609.62 (see the respective paragraphs 8 of the statement of facts and statement on oath). The burden of proving his entitlement to N4,080,531.05 lies on the claimant. It is the attempt to prove this that the claimant alluded to the defendant’s failure to establish compliance with the provisions of its Handbook on redundancy. The law is that an employer can terminate the employment of an employee with or without a reason (see Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 532 CA); although modern systems prefer that a reason be given by such an employer (see PENGASSAN v. Schlumberger Anadrill Nigeria Limited [2008] 11 NLLR (Pt. 29) 164). Where the employer, however, gives a reason for the termination, it behooves on him to justify the reason. See Angel Shipping & Dyeing Ltd v. Ajah (supra). In the instant suit, in Exhibit D6, and as argued in paragraph 2.3 of its written address, the defendant gave reorganization as the reason for terminating the claimant’s employment; the claimant having served the defendant for 9 years and 2 months. DW in paragraphs 4, 5 and 6 of her statement on oath of 12th May 2015 gave “reorganization” and “redundancy”, and under cross-examination “reorganization and restructuring”, as the reason(s) for the termination. Now, where an employer gives reorganization as the reason for termination, this of course, must be justified. I acknowledge that by law an employer has the right to restructure/reorganise but it must be for verifiable reasons, including the nature of the reorganisation. An employer cannot just blindly use the word re-organise as justification without stating what it entails and its component parts. To be such, the defendants must prove the need for the reorganisation, its component part and how they succeeded in doing that in regards to the case at hand. See Eme Ekanem Ukpong v. Akwa Ibom State Government & 2 ors unreported Suit No. NICN/CA/87/2013 the judgment of which was delivered on September 30, 2014 and Mrs. Amaechi Lauretta Onyekachi v. Stanqueen Investment Limited unreported Suit No. NICN/LA/271/2014 the judgment of which was delivered on December 4, 2015. All of this is lacking on the part of the defendant in the instant suit. The defendant did not prove or justify the reorganization exercise that warranted the immediate termination of the claimant’s services with it. The submission of the defendant that as a result of a reorganization exercise, it discovered that the claimant could not fit into any department in its company says little or nothing as justification since details (such as the nature of the reorganization and the lack of requisite qualification/experience on the part of the claimant as to fit into the reorganized company) were not given to the Court. It is accordingly tempting to come to the conclusion, as this Court did in Mrs. Amaechi Lauretta Onyekachi v. Stanqueen Investment Limited (supra), that having failed to justify the reorganization, the termination of the claimant’s employment was wrongful. But this does not solve the issue at hand given that the claimant’s case is not that the termination of his employment was wrongful. In fact, under cross-examination, the claimant denied that his employment was terminated; instead he testified that he resigned his appointment. The claimant’s case is that he was underpaid his terminal benefit on the ground that his employment was deliberately terminated after 9 years of service just so that he will not clock 10 years in service to warrant a higher terminal benefit. Even at this, beyond just the statement itself, the claimant did not indicate to this Court how he came about the sums he claims in the sense that if this Court were to make a finding in his favour that the termination of his employment at 9 years instead of 10 years service was wrongful, he is so entitled to the sums claimed. In other words, a finding in favour of the claimant that his termination was wrongful (i.e. discounting the fact that under cross-examination he positively asserted that he resigned his appointment, not that it was terminated) would still be of little help to his actual claim for N4,080,531.05 since this sum remains unproved. In all, and for all the reasons given, I have no hesitation whatsoever in coming to the conclusion that the claimant did not prove his case as to be entitled to the reliefs be claims in this suit. His case lacks merit and so is hereby dismissed. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD