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JUDGMENT The Claimant joined the employment of the Defendant on 21st February 1989 and rose through the ranks to become the Head and Group Executive Director of the Compliance and Enterprise Risk Management of the Defendant. The Claimant was made an Executive Director of the Defendant with effect from February 2007. Prior to that date she was an Assistant General Manager in the Defendant Company when she was given various responsibilities including "director" Integration for the merger activities of the Defendant. She held the position of Company Secretary of the defendant. After over 20 years of dedicated and meritorious service, the Claimant, after the meeting of the Defendant's Group Board of Executive and Non-Executive Directors held on Wednesday 7 October 2009, was informed by a sub Committee of Directors comprising Mr. Kenneth Odogwu, Mr. Adegboyega Ojora, Alhaji Rufai Mohammed and Alhaji Rabiu Mohammed Gwarzo that in view of the restructuring being considered by the Defendant, "there would be no role for her to play henceforth in the new management structure of the Company. Subsequent to the receipt of this information, the Claimant, by a letter to the Chairman of the Board of Directors of the Defendant dated Thursday 8 October 2009, titled: "Retirement from Services of Royal Exchange PLC.", tendered her notice of retirement from the Defendant effective from 30 June 2010, consistent with the policy of the Defendant which provides for an early retirement before the age of 60. On 8th October 2009 the Defendant, by an email dated 8 October 2009 (Exhibit D14 series), captioned "Resignation from Appointment - Mrs. Cecilia E. Madueke", emanating from one Victor Oladapo of the Human Resources Unit of the Defendant and signed by Allan Walmsley, Group Managing Director of the Defendant, informed the recipient of the email, the Royal Family, comprising members of the Board, Management and staff of the Defendant, that the Claimant "has resigned" her appointment effective from 7 October 2009 and the resignation "accepted" . The Defendant failed, refused and/or neglected to respond to the Claimant's letter of retirement or pay all her entitlements and terminal benefits either by way of retirement or redundancy, save for a letter dated 2 June 2010, wrongly captioned "Re: Resignation of Appointment", wherein the Defendant accepted the Claimant's disengagement from the Defendant effective from January 7,2010. By the Defendant's letter dated 2 June 2010, the Defendant forwarded to the Claimant cheques in the total sum of N28,359,342.25 (Twenty Eight Million Three Hundred and Fifty Nine Thousand Three Hundred and Forty Two Naira Twenty Five Kobo) in purported full and final settlement of the Claimant's terminal benefits, which according to the claimant grossly understated her terminal benefits and excluded some of her benefits in kind. The Claimant therefore instituted this action on the 20th December,2011, seeking for the balance of the full entitlements due to her from the Defendant in the sum of N22,404,492.27 (Twenty-Two Million, Four Hundred and Four Thousand, Four Hundred and Ninety-Two Naira, Twenty-seven Kobo) consequent upon her retirement or in the alternative seeking for the balance of the full entitlements due to her from the Defendant in the sum of N64,677,044.77 [ Sixty- Four Million, Six Hundred and Seventy- Seven Thousand, Forty Four Naira, Seventy¬ Seven Kobo] consequent upon her being made redundant. Claimant's claims against the defendant are as follows: (a) A DECLARATION that the Claimant's disengagement, by virtue of her letter dated 8th October, 2009, from the Defendant Company was by way of retirement and not a resignation. (b) AN ORDER OF MANDATORY INJUNCTION compelling the Defendant to give a full and detailed account of the pre 2005 non-contributory pension scheme established, funded and managed by the Defendant for the benefit of its employees which included the Claimant. (c) A DECLARATION that the Claimant is entitled to be paid, in full, all her benefits and entitlements by the Defendant up to 30 June 2010. (d) AN ORDER OF MANDATORY INJUNCTION compelling the Defendant to pay the Claimant the balance of her entitlements from the Defendant in the sum of 22,404,492.27 (Twenty-Two Million, Four Hundred and Four Thousand, Four Hundred and Ninety-Two Naira, Twenty-seven Kobo),in full and final settlement of the outstanding balance on the sum of N50,763,834.52 (Fifty Million, Seven Hundred and Sixty-Three Thousand, Eight Hundred and Thirty-Four Naira, Fifty-two Kobo) due to the Claimant, upon her retirement from the Defendant company and interest on the said sum at the rate 21% from October 8, 2009 until judgment is given in this suit through to the date of final liquidation of the above sum. (e) INTEREST on the sum of N28,359,342.25 (Twenty Eight Million Three Hundred and Fifty Nine Thousand Three Hundred and Forty Two Naira Twenty Five Kobo entitlements from October 8, 2009 to June 2, 2010 (f) REMITTANCE of the employer's contribution to pension for the period of October 2009 to June 2010 to the Claimant's Pension Fund Administrator. (g) COST of this action in the sum of N2, 200,000.00 (Two Million, Two Hundred Thousand Naira). PARTICULARS OF CLAIM OF ENTITLEMENT FOR RETIREMENT 1. Basic Salary - N3,564,000.00 2. Housing Allowance - N1,512,000.00 3. Lunch Allowance - N1,020,600.00 4. Outfit allowance - N661,950.00 5. Educational Allowance - N701,550.00 6. Fuel Allowance . - N540,000.00 7. Driver's allowance - N423,000.00 8. Utility - N850,500.00 9. GSM Allowance - N198,000.00 10. Management - N622,800.00 11. Tea allowance - N567,000.00 12. Leave allowance (pro-rated for6 month) - N380,160.00 13. Annual pension (pro-rated for 6 months) - N636,007.50 14. Unlimited medical benefits monetized - N1,125,000.00 15. Diesel (2 drums per week monetized) N3,312,000.00 16. Vehicle/transport allowance (monetized) N1,500,000.00 17. Club dues - N60,000.00 Total - N17,674,567.50 18. Travel Allowance for 2010 as Director Ticket (Pro-rated for 6 Months) N1,182,210.00 Estacode (Pro-rated for 6 Months)- N890,625.00 19. End of year benefits - N150,000.00 20. Xmas bonus - N280,000.00 21. 13th Month - N396,000.00 Total - N2,898,835.00 22. Special Hand shake - N7,128,000.00 23. Gratuity - N23,387,280.00 24. Unused leave - N2,577,046.15 25. Post 2005 Pensions shortfall - N925,486.87 Grand Total - N54,591,215.82 Less 26. Loan - N3,452,381.00 27. Cost of Generator - N375,000.00 GRANT TOTAL - N50,763,834.52 (h) INTEREST on the sum of N28,359,342.25 (Twenty Eight Million Three Hundred and Fifty Nine Thousand Three Hundred and Forty Two Naira Twenty Five Kobo) entitlements from October 8, 2009 to June 2, 2010. (i) REMITTANCE of the employer's contribution to pension for the period of October 2009 to June 2010 to the Claimant's Pension Fund Administrator. (j) COST of this action in the sum of N2,200,000.00 (Two Million, Two Hundred Thousand Naira). OR IN THE ALTERNATIVE AS FOLLOWS: 1.A DECLARATION that the Claimant's disengagement, by virtue of the act of the Company was by way of redundancy. 2. A sum equal to 14 weeks total emoluments (total emoluments being defined as Basic Salary, Housing, transport and lunch subsidy, for each year of completed service. 3.AN ORDER OF MANDATORY INJUNCTION compelling the Defendant to give a full and detailed account of the pre 2005 non-contributory pension scheme established, funded and managed by the Defendant for the benefit of its employees which included the Claimant. 4.A DECLARATION that the Claimant is entitled to be paid, in full, all her benefits and entitlements by the Defendant. 5.INTERESTon her entitlements from October 8, 2009 to June 2, 2010. 6.AN ORDEROF MANDATORY INJUNCTION compelling the Defendant to pay the Claimant the balance of her entitlements from the Defendant in the sum of N64,677,044.77 (Sixty-Four Million, Six Hundred and Seventy¬-Seven Thousand, Forty Four Naira, Seventy-Seven Kobo), in full and final settlement of the outstanding balance on the sum of N93,036,387.02 (Ninety Three Million, Thirty Six Thousand, Three Hundred and Eighty-Seven Naira, Two kobo] due to the Claimant, upon the Defendant company rendering the Claimant redundant in the Defendant Company and interest on the said sum at the rate 21% from October 8, 2009 until judgment is given in this suit through to the date of final liquidation of the above sum. PARTICULARS OF CLAIM OF ENTITLEMENT FOR REDUNDANCY 1. Basic Salary - N29,106,000.00 2. Housing Allowance - N18,522,000.00 3. Lunch Allowance - N8,334,900.00 4. Transport Allowance - N12,250,000.00 5. Club dues - N120,000.00 Total - N68,332,900.00 6. Travel Allowance for 2010 as Director a. Ticket - N2,364,420.00 b. Estacode N1,781,250.00 7. End of year benefits - N2,577,046.1 8. Xmas bonus Total: N4,576,170.00 9. Special Hand shake - N7,128,000.00 10. Unused leave - N2,577,046.15 11. Pre 2005 Pensions shortfall - N925,486.87 12. 6 months’ Salary in lieu of notice - N13,324,165.00 Sub Total - N96,863,768.02 7. INTEREST on the sum of N28,359,342.25 (Twenty Eight Million Three Hundred and Fifty Nine Thousand Three Hundred and Forty Two Naira Twenty Five Kobo entitlements from October 8, 2009 to June 2, 2010. 8. REMITTANCE of the employer's contribution to pension for the-period of October 2009 to June 2010 to the Claimant's Pension Fund Administrator. 9. COST of this action in the sum of N2, 200,000:00 (Two Million, Two Hundred Thousand Naira). Claimant also filed all her accompanying processes and documents in prove of her case. Claimant stated under cross examination that she currently works with Julius Berger Nig. Plc and she informed them of her employment history with the defendant and how she was asked to retire based on the defendant assertion that her position was no longer relevant. Whilst giving a detail of what transpired at the defendant's board of directors meeting where Mr. Ojora, Alhaji Gwazo and Alhaji Rufai asked her to leave immediately. She continued that the Chairman of the board and Mr. Ken Odogwu also spoke to her in the same light and urged her to leave immediately. She then wrote a letter of retirement on the 8th of October,2009 to the Chairman of the Board and copied the Managing Director, she thereafter went to see the MD who confirmed to her that her exit is immediate, that is a day after the board meeting. She confirmed that she left the defendant's premises on the 8th October, 2009 and on the same date she received an Email from the defendant stating that she had resigned her appointment from the defendant's company. She could not go to the office after receiving such an Email so as not to create a scene. She was not told to hand over, hence she did not hand over. She had in 2007 handed over her position as the Director Enterprise Risk Management to the Company Secretary. She affirmed that she put in a 6 months notice of retirement letter and she received a response on 2nd June, 2010 accepting her retirement. According to her she consistently told the defendant and its solicitors that she gave notice to retire and did not resign. She insisted that she wrote letters to Directors of the defendant in October, November, December, January and February and there was no time she was told that her notice of retirement was deemed to be letter of resignation. She reiterated that the Chairman of the board informed her that there would be no place for her under the new structure of the Company and she was the only one asked to leave. To the claimant she is entitled to 6 months notice like the MD as her contract of employment is similar to that of the Managing Director except on financial aspect which has a difference. She contends that as a Management staff she has no separate contract of service. She confirmed that Human resources department sends out leave schedule to all heads of department stating the number of days approved for each person's leave. According to CW her claim for ex gratia payment is based on the fact that it is the norm in the defendant's company that Directors exiting the company were paid same. She stated further that she is entitled to be paid gratuity and terminal benefits based on the collective agreement of Senior Staff Association , i.e. ASBIFFE and the company's policy. Her entitlements are based on both the collective agreement and the contract of service of the Managing Director. She affirmed that her retirement was accepted by the defendant on the 2nd June, 2010 effective on 30th June, 2010 being her month of birth day. CW admitted that there was an email from both the HR and Managing Director stating clearly that she has unspent leave. She denied that she refused the defendant to pick up the generating set given to her in her house. She stated again that she was one of the non Executive Directors of the Board. She contends that she prepared the disengagement packages of one Mr. Oluyemi and Nkem Odogbare and same was approved by the Board. That Mr Oluyemi collected N55,000,000.00 while Mr Nkem was paid about N5,000,000.00 as special Handshake, because he just spent one year with the company. She also confirmed that she was a company secretary of the defendant uptill 2009 and she confirmed the share acquisition in the defendant's company. She recalled a letter to CBN Governor, signed by her and another person in April, 2009. CW went on that she and another person represented the defendant as regards the Decanon transaction and that the N50,000,000.00 shares was released by legal department of the defendant to Decanon on the instruction of the Board. She denied playing any role as regards the release of the sum of money to Decanon. She confirmed that Decanon did not release the sum of N250,000,000.00 to the defendant. She was held responsible for her failure to issue a blank transfer form and that the Board recommended a warning to be put in her file for one year. She argued that she was not formerly accused of any alteration in the minutes of the board meeting but there was such an allegation in the minutes of the Committee meeting. It is the defence of the defendant that the Claimant left the services of the Defendant with effect from the 8th of October, 2009, by virtue of her letter of resignation dated the 8th of October, 2009. That there were allegations of misconduct which were levelled against the Claimant and a Committee was constituted by the board to investigate these allegations. The Committee in its report indicted the Claimant. Subsequently, the Claimant disengaged her services by the letter of 8th October, 2009. That following the report of the Committee, which found the Claimant liable for paying over N480 Million (Four Hundred and Eighty Million Naira) to Decanon and releasing 250m share certificates to Decanon without obtaining Signed Share Transfer Forms, the Claimant by the letter of 8th of October, 2009, disengaged from the Defendant. Defence stressed that the Claimant never retired from her position, but resigned and that the proper notice period for junior and senior staff disengaging from the service of the company through resignation is two (2) weeks and one (1) month's notice respectively. That, in the case of an executive director, either party (employer or employee) is expected to give three (3) months notice or pay three (3) months' salary in lieu of notice. With respect to retirement, the company is expected to give retiring staff three months retirement leave prior to the attainment of retirement age (55 years for female and 60 years for male). The three months retirement leave is applicable to all categories of staff. That the Defendant never gave the Claimant the 3 (three) months pre¬retirement leave notice because the 8th of October, 2009 when the Claimant disengaged, was more than 3 (three) months before her retirement would have been due. That the Defendant contends that the Claimant could only retire with the Defendant's approval, which had clearly not been sought in this instant case. That the Claimant handed in her letter of intention to disengage from service of the Defendant (wrongly captioned "Retirement from Services of Royal Exchange Plc), dated the 8th of October, 2009, to take effect from the 30th of June, 2010 and stopped all official duties same day without observing the statutory notice period required by law and the Defendant's Policies and Procedures Manual. That the purported notice of retirement is invalid and also contrary to the Defendant's policy, which provides that any employee who is absent from duty for at least three days, without any permission will be deemed to have abandoned his or her job and from the actions of the Claimant, she abandoned her job. That the Defendant contends that the practice is that the Claimant could only retire with the approval of the Defendant. That notwithstanding the Claimant's conduct of abandoning her job by failing to report to work during the notice period, the Defendant on compassionate grounds, decided to treat the instant case, as a case of resignation rather than one for misconduct, which could have led to her dismissal. That it is the company's policy for cases of redundancy to involve negotiations between the members' national union and the Defendant, before any redundancy exercise is embarked upon. That the 2006 agreement referred to in the Statement of Claim was specifically signed for the 2006 redundancy exercise. That the Defendant ensured that claimant's terminal benefits were paid once Chapel Hill Denham (Pension Fund Administrators) made the money available to the Defendant. It continued that the Defendant sent a letter dated 19th April 2010 captioned "Re: Terminal Benefits" to the Claimant on the directive of the board that the Claimant should return the Defendant's property in her possession and a schedule detailing the Claimant's terminal benefits was attached. With reference to the calculation of the Claimant's terminal benefit, company policy regarding this states that it be derived from the Trust Deed. The calculation was therefore based on the Trust deed. It is the further contention of the Defendant that by its letter captioned "RE: Resignation of Appointment" dated the 2nd day of June, 2010 was rightly headed, and that since the Claimant had abandoned her duty post, it was best to proceed with her disengagement on the basis of resignation, in a manner that would not require the Defendant to take any disciplinary action against the Claimant, at this point when she was at the end of her career in the Company. Hence the Defendant conceded January as the date of resignation. That by writing its letter dated the 2nd day of June, 2010 titled "RE: Resignation of Appointment", the Defendant did not accept the purported retirement of the Claimant. The said letter in its clear terms stated that the letter of the Claimant dated 8th of October had been treated as a resignation. Defence stated further that the calculations of the Claimant's terminal benefits were based and derived from the Trust Deed. Furthermore, that in calculating the payment of three months’ salary for the notice period, the basic salary and other allowances contained in company's salary structure as applicable to executive directors (in relation to Royal Exchange Plc) and non-executive directors, were also taken into consideration. It states further that Claimant does not receive any additional benefit as director of Royal Exchange General apart from a sitting allowance as a director on the board of REGIC which was only payable upon attendance at the meeting of the board. That the Claimant has till date, failed and/or refused to execute her letters of resignation in respect of Royal Exchange General Insurance Company Ltd. (REGIC) and Profund Securities Limited, subsidiaries of the Defendant on which the Claimant represented the Defendant on the boards. That the sum of N4,257,989.66 (Four Million, Two Hundred and Fifty-seven Thousand, Nine Hundred and Eighty-Nine Naira, Sixty-six kobo) was paid to the Claimant as pre 2005 accrued pension benefit as determined by the Actuaries as at January 1, 2005 based on the years of service up to that date and the pensionable remuneration as at the same date. The computed figure is therefore taken as the initial balance of the individual under the new arrangement of defined contributions. That the Defendant contends that once the Claimant opened RSA accounts with IBTC (her PFA), all payments were duly remitted. The defence stated that the share loan facility taken from Royal Exchange Finance & Investment Ltd. was never predicated on the payment of the Claimant's entitlement. That the Claimant's entitlement was only used as collateral which implied that the company was entitled to realize the collateral. The company only paid the balance on the loan as advised by the lender. That it is the defendant's Company policy that unspent leave, cannot be monetized, accumulated or carried forward to be used the following year. That the Claimant's unspent leave is 127 (One Hundred and Twenty Seven) days and the Defendant has also proceeded to pay her accordingly. That the idea of the golden handshake which the Claimant made reference to, was paid to past directors on the recommendation of the Nominations and Compensation Committee of the board. That the said policy is not automatic but is totally at the discretion of the board. That in light of the allegations of misconduct levelled against the Claimant, the idea of the golden handshake should not arise, as the previous recipients of the golden handshake have been people who the Defendant exercised their discretion in favour of and these were not obligations but were ex-gratia. That the terminal benefits paid by the Defendant to the Claimant, covered the period up to the 7th of January, 2010 which was a concession from the Defendant, in the best interest of the Claimant. The benefits were then computed in line with the Trust Deed. That the company assets used by staff whilst in its employment remain that of the company except where the company indicates to such an employee, an intention to transfer the asset to the employee and then a price may be fixed, but the company did not, at any time indicate such an intention to the Claimant. That the Defendant's generator which is part of the Defendant's assets is still in the possession of the Claimant who has resisted all efforts by the Defendant to collect same. That upon receipt of the letter dated the 29th of July, 2010, the Defendant instructed its solicitors (PUNUKA Attorneys & Solicitors), to respond to same, as it was replete with unfounded claims and fabrications by the Claimant. In line with these instructions, our solicitors by a letter dated the 19th of August 2010 responded. That no deductions for the depreciated value of the jeep were made in computing the Claimant's terminal benefits. That that there are no errors in the computation of the Claimant's terminal benefits, as alleged and the Claimant has been duly paid all that she is entitled to. That in line with the Defendant's policy, the details of the Claimant's full and final settlement of her terminal benefits are provided below, as follows: Entitlement N N Gratuity 23, 387,280.00 Earned Leave 2, 321,169.23 Pre 2005 Pension Benefit (Accrued) 4,051, 572.36 Salary (Oct. 2009 to Jan 7, 2010) 3,579,270.96 Christmas Bonus 250,000.00 33,795,708.85 Indebtedness Share Loan 4,051,572.36 Staff Insurance Premium 18,962.50 PAVE (Tax) 1,365,831.74 (5,436,366.60) Net Entitlement 28,359,342.25 That the Defendant has paid the above stated sum of N28,359,342.25 (Twenty Eight Million, Three Hundred and Fifty Nine Thousand, Three Hundred and Forty Two Naira and Twenty Five Kobo) to the Claimant, as the Claimant's full and final settlement of her terminal benefits. The Defendant/Counter-Claimant filed a Counter-Claim dated 31 January 2012, wherein it counter-claimed against the claimant as follows: [i] An Order for the Claimant/Defendant to counterclaim to pay the Defendant/Counterclaimant the sum of N500 Million (Five Hundred Million Naira) being damages for negligence that caused the Defendant/Counterclaimant to suffer a substantial loss. [ii] An Order for the Claimant/Defendant to counter-claim to pay the Defendant/Counterclaimant the sum of N50 Million (Fifty Million Naira) being bank charges that have been incurred as a result of the Claimant/Defendant to Counterclaim's negligence. [iii] An Order directing the Claimant/Defendant to counterclaim to bring and surrender the Defendant/Counterclaimant's generator, which is in her custody to the Defendant/Counterclaimant's head office in Lagos. [iv] A Declaration that it was a breach of trust and wrongful for the Claimant/Defendant to Counterclaim not to have indicated to the subsidiary companies (REGIC and Profund) which she sat on their Boards, of her disengagement from the services of the Defendant/Counterclaimant, as the Claimant/Defendant to Counterclaim held those positions in trust for the Defendant. [v] An Order directing the Claimant to pay the Defendant/Counterclaimant, the sum of N100 Million (One Hundred Million) as damages for breach of trust. [vi] Such further order or orders as this Honourable Court might deem fit to make in the circumstances. The defendant at the trial testified through its Human Resources Manager and Company Secretary as DW1 and DW2 respectively and tendered documents. DW1, Olajide Olugboye admitted under cross examination that as at 8th October, 2010, the claimant has unutilised leave of more than 100 days and stated further that the defendant's records show that claimant has 127 days unutilised leave. DW1 also confirmed that the defendant received claimant's letter stating that she is entitled to 141 unutilised leave. He also admitted that the length of period between the time the claimant wrote her letter of notice of retirement and the time the defendant responded was 7 months. He disagreed that the defendant was tardy in the way the claimant's disengagement was handled. He admitted to have computed the claimant's benefits uptill January, 2010. DW1 affirmed that no one can contradict the board's decision. He also stated that he would not know if the defendant formerly requested for the generating set from the claimant. It is the further testimony of DW1 that the claimant in her exhibit C informed the defendant of her notice of retirement and admitted that the defendant did not reply her to state otherwise. He confirmed also that each staff has its approval level and cannot exceed same and confirmed that no money is released from the company without a proper approval. He confirmed that the approval limit of an Executive Director is N5M. DW2, Sheila Ezeukor on her own stated under cross examination that she is the company's secretary of the defendant and a custodian of the company's minutes books. She is also a custodian of the Registrar of members. She continued that the Board may ratify or reject a committee's recommendation. As regards Decanon recommendation, she admitted that the management recommended it to the board and same was approved by the Board. It is the further testimony of DW2 that Security holding trust is a welfare scheme for employees of the defendant. That the shares were given to Decanon to hold in trust for the employees welfare. That the defendant guaranteed the loan through First Inland Bank in favour of Decanon to enable it pay for the shares. She confirmed that the defendant paid for the loan granted to Decanon. DW2 stated that the AGM of the defendant did not approve of the share scheme since she came on board but would not know if same was approved before she assumed office as Company Secretary. To DW2 claimant resigned on 7th October, 2009. According to DW2 the company and the Board met and asked the claimant to resign her appointment. It is the further testimony of DW2 that the board meets statutorily 4 times in a year but may meet if there are emergency matters. Claimant was advised to resign her appointment due to her role in Decanon transaction. She confirmed that notice to produce the board minute evincing the board's decision on the claimant to court. DW2 asserted that as at 2008 the defendant has complied with the NICOM requirement as regards shares. At the close of trial on the 9th of March, 2015, the court ordered both parties to file their respective final written addresses and as the practise is, the defendant filed first on the 13th April, 2015, posing three questions for which it canvassed arguments in support. While the claimant on her own part filed her final written address on 7th July, 2015, she distilled 5 issues for the court's consideration. I will refer to pertinent parts of the issues framed and arguments proffered by both parties in the course of this judgment. Having carefully considered all the processes filed, watched the demeanour of the 3 witnesses and arguments canvassed by learned counsel in support of their diverse positions. It is then obvious that one germane question that requires an answer for the just determination of this case is whether or not the claimant resigned or retired from the defendant's company. This question was also posed by both parties in their respective final written addresses and gave diverse arguments to same. I will refer to them in considering this issue. It is the argument of the learned defence counsel on this issue that the claimant resigned her appointment from the defendant on the 8th October, 2009 by exhibit C and has since failed to be at the defendant's office. To the defendant the claimant has failed to establish that she resigned her appointment. Counsel restated the well known position of the law which is that he who asserts must proof. Cited in support of this submission is the case of ZENITH BANK PLC V. EKEREUWEM [2012] 4 NWLR (PT. 1290) 207. To counsel the defendant having failed to prove her assertion should leave this court with no other option than to dismiss her claim. It is the further contention of the defence that the claimant failed to show that her purported letter of resignation was approved by the defendant. According to learned defence counsel the defendant had always treated claimant's disengagement as resignation and that the claimant has not been able to show otherwise. It is again the argument of the defence that the claimant failed to comply with the provision of the policy and procedure manual regulating her employment as regards retirement by failing to receive approval of the defendant before she abandoned her job. The learned defence counsel contends that retirement cannot be effective until accepted by the defendant. He urged the court to rely on the testimony of DW1 and DW2 and exhibit B. The defence counsel commended the case of KOPEK CONSTRUCTION LTD V. EKISOLA [2010] 3 NWLR (PT.1182) 618 @ 663 and urged the court to hold that the documentary evidence i..e exhibit B supports the oral evidence of its witnesses. It is the further argument of the learned defence counsel while placing reliance on the decision of the court in WAEC V. OSHIONEBO [2006] 12 NWLR (PT. 1994) 258 CA, that the claimant resigned and did not retire because if she had retired it would not be immediate. It was the final submission of the defendant that the claimant is not entitled to any benefit sought as she abandoned her employment. It is the learned claimant counsel's submission reiterating her consisted position which is that the claimant retired from the services of the defendant and did not resign as alleged by the defendant. Counsel gave a brief insight into what led to claimant's exit from the defendant's company by stating that the Board of the defendant held a meeting on the 7th October, 2009, where the claimant was asked to leave the services of the defendant based on what they called a restructuring of the defendant. Upon which the claimant tendered a notice of her retirement from the defendant vide a letter dated 8th October, 2009 addressed to the chairman of the board, effective from 30th June, 2010. That the claimant followed up her notice of retirement letter with Emails dated 11th October, 2009 and 16th January, 2010. According to counsel the Chairman of the defendant's board Mr. Ken Odogwu replied her vide an Email dated 17th January, 2010, wherein the erstwhile chairman did not contest the retirement of the claimant rather he attributed the long delay in responding to her letter of 8th October, 2009 to the tardiness of the Board committee. According to counsel the only time the defendant responded to the claimant's letter of retirement was by a letter dated 2nd June 2010, which was received by the claimant on the 7th June, 2010 about 7 to 8 months after her letter of retirement, in it the defendant did not contest the claimant's retirement rather it captioned the letter ''Re-Terminal Benefits' and in it the defendant allegedly accepted the claimant's disengagement from its employ. Claimant admitted that she received a cheque in the sum of N28, 359,342.25, which to her grossly understated her benefits and excluded some of her benefits in kind. That in a swift response to that the claimant replied vide a mail dated 11th June, restating the fact that she did not resign rather she did retire and in it also complained of the underpayment of her terminal benefits. Counsel continued with his argument by capturing salient parts of the testimony of the claimant and the two defence witnesses as regards the claimant's letter of retirement and the period of which the defendant replied and submitted that it took the defendant 8 months 23 days to reply the claimant. to counsel the conduct and reaction of the defendant to claimant's letter of retirement amounts to its acceptance of same or waiver or relinquishing its right to reject the notice. Cited in support of his assertion is the case of OKUBULE V OYAGBOLA [1990] 4 NWLR (PT. 147) 723, where the apex court held that an acceptance by conduct would amount to proper acceptance where there exist positive and reliable evidence from which the court may infer acceptance. In his submission that the defendant waived its right, learned counsel commended these case law authorities AUTO IMPORT EXPORT V. ADEBAYO [2005] 19 NWLR (PT.959) 44; ORAKUL RESOURCES LTD V. N.C.C.[2007] 16 NWLR (PT.1060) 270 @ 311 AND N.B.C.I. V. INTERGRATED GAS NIG LTD [2005] 4 NWLR (PT. 916) 617 and posited that anyone who intentionally surrendered or relinquished a known privilege or right will be barred from later asserting same. He urged the court to hold that the defendant having waived its right to withhold its consent or approval of the claimant's notice of retirement should be barred from exercising same at a later date. counsel equally submits that the issue of abandonment of duty was an afterthought and should thus be discountenanced and prayed the court to resolve this issue in favour of the claimant. The position of the law in the world of work is that in a master/servant relationship like this present, either of the parties may choose to determine the relationship by given notice as prescribed by its terms of contract. It is of note that the main document regulating the relationship between the claimant and the defendant in this case is the defendant's Policies and Procedure Manual i.e. exhibit OO1 which is alluded to by both parties in this case. It is obvious from the facts before me including the arguments of both learned counsel to the parties summarised supra that the main crux of this case is whether or not the claimant retired or resigned her appointment from the defendant. It is important to start by stating the facts before this court which facts will give a clearer picture of what transpired between both parties and thus leading to a just decision in this case. It is revealed from the pleadings filed by both parties and same asserted by learned counsel to both parties in their respective final addresses that the defendant at its meeting of 7th October, 2009 urged the claimant to leave its employment, reason being that the defendant was restructuring its company and have no position for the claimant. It is consequent upon this that the claimant tendered her letter of retirement dated 8th October, 2009. In reacting to this the defendant by an Email dated 8th October 2009 at 5.14pm wrote to all its staff informing them that the claimant has resigned her appointment from its company. The contention between the two parties is while the claimant insists that she retired from the service of the defendant, the defendant holds a contrary view, alleging that she resigned her appointment. It is against this backdrop that the court will have to make its finding for or against the two divergent positions. Now, the law is that he who asserts must prove. The import of which is that the onus of proving that the claimant retired her appointment and did not resign as contended by the defendant is on the claimant. Claimant in prove of her case tendered several documents principal of which is one of the documents admitted as exhibit C, dated 8th October, 2009, title ''Retirement from service of Royal Exchange Plc'' tendered her notice of retirement effective from 30th June, 2010; the content of which is captured thus- EXHIBIT C "Cecilia Ekanem Madueke (Mrs) 10/08/2009 17, Tokunbo Omisore Street, Lekki Phase 1, Lagos Victoria Island The Chairman, The Board of Directors Royal Exchange Plc. 31, Marina, Lagos. Dear Sir, RETIRMENT FROM THE SERVICES OF ROYAL EXCHANGE PLC I refer to the above mentioned subject and write further to the Board meeting held on October 7, 2009, wherein the board graciously informed me that in the light of the restructuring being considered for the group, there would be no role for me in the new structure. In view of the above situation, I hereby tender my retirement letter from the company and the group, effective from June 30, 2010, which period shall also include the mandatory 3 months pre-retirement leave. In preparation for this, I have this day handed over the electronic on the matters currently being handled by me, turned in my ID card, as well as the official car allocated to me. I must note however that the life of the official car (5 years from due date) should terminate on December 31, 2010, if the allocation of the vehicle is deemed to start from the date it was due to me, that is January 31, 2006. I must also state that I have one hundred and forty one days of accumulated leave outstanding. I would want noted that there are unresolved issues with respect to the pension pre 2005 that the company would need to address, more particularly now with my retirement. Lastly I would expect from the company a certificate confirming my years of service to the company as well as work references when required. I await your acceptance of my notice as well as the financial terms of for disengagement, which should include my gratuity and terminal benefits. I thank the company for allowing me to prove myself within the confines of its structure, the Board , Management and Staff for the support given and camaraderie shown to me in almost 21 (twenty -one) years of service to the company. I wish the group success in the terrain in which it has chosen to operate. I would be grateful for your kind acknowledgement of recipient by email. Yours faithfully, Cecilia Ekanem Madueke (Mrs)." Hereunder reproduced is the letter written by the defendant to all its staff informing them that claimant has resigned from its employment. "To: Royal Family From: Victor Oladepo/Human Resources/ Lagos/ Swest/royal exchange plc. Date: 10/08/2009 05:14PM SUBJECT: RESIGNATION OF APPOINTMENT-MRS CECILIA E. MADUEKE This is to inform all staff that Mrs. Cecilia E Madueke, the Group Executive Director (compliance) has resigned her appointment effective from 7th October, 2009 and the board of directors has accepted her resignation. ………… In her over 20 years stay in the company, she proved to be unswerving and worked assiduously with others to evolve a new corporate identity for the company and also contributed immensely towards the success of the enterprise transformation project. We will all miss her. We wish her best of luck in her future endeavours. Allan Walmsley Group Managing Director" The above captioned letter was addressed to the Chairman of the defendant The defendant instead of responding to claimant's letter by an Email dated same date as claimant's letter of retirement, captioned ''Resignation from appointment- Mrs Cecilia E. Madueke'' marked as exhibit D14, from one Oladapo of the Human resources unit of the defendant and signed by one Allan Walmsley, Group Managing Director of the defendant, informing all its staff, management Board, which is the royal family that claimant has resigned her appointment from its company effective from 7th October, 2009. This is the defendant's tactical way of rephrasing the claimant's letter of retirement to read 'resignation.' Now the position of the extant law as regards giving notice of retirement or resignation or termination is that, resignation or retirement takes effect immediately same is communicated/ received by the employer/employee as the case may be. It the law of common that every employee has the right to resign/retire from his appointment whenever he so desires. The resignation /retirement is effective in law even when the employer does not expressly accept it. There is also no need for the employer to reply to the letter of retirement/resignation before it becomes effective. See the English case of HORWOOD V. LINCOINSHIRE COUNTY COUNCIL [2012] UKEAT 0462/11. It was held in that case that the effective date of termination of employment of Ms. Horwood was the date it was communicated to her employer i.e. the date they received same. In WAEC V. OSHIONEBO, Supra a case relied on by the defendant, the court of appeal made a distinction between resignation and retirement and held in that case that a notice of resignation is effective not from the date of the letter but on the date it was received. That tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving a notice of retirement carries with it the right to be paid a pension or gratuity, but does not confer the right to withdraw from the service immediately and automatically. It is also the position of the Court of appeal as decided in the case of OSU V. P.A.N. LTD [2001] 13 NWLR (PT. 731) 627CA, that- ''Where an employee is required by his contract to give a notice of retirement and he complies, the notice of retirement will appropriately expire at the stipulated periods regardless of directives from the employer that the employee should stop work before the due date stipulated. Thus such an employee remains a staff of the employer up to and including the last day when the notice would have properly expired'. Applying the above decision to the present case would mean that irrespective of the defendant's instruction to the claimant to exit its company immediately, the notice of retirement given by the claimant which although 6 months, but the court finds that by clause 20.5 of exhibit OO1, a staff going on retirement is to give 3 months notice of retirement, thus claimant is deemed to be a staff of the defendant uptill the 7th of January, 2010 which is the terminal date of her notice of retirement. It is interesting to note that by O.S.H.C. V. SHITTU [1994] 1 NWLR, PT 321, P 476 CA, where the employee gives notice of his voluntary retirement to his employer and the employer refuses to accept the notice the position is that the employee is still in the employers service. It is only that employee who can rely on that notice in his favour and not the employer who rejected the notice. This is because it has to be adjudged not only a deviation from 'natural equity' but also contrary to law for an employer who is guilty of the illegality of refusing a notice of voluntary retirement to turn around and benefit from that illegality. In other words by this case law authority, it would be illegal of the defendant to have instead of accepted claimant's letter of retirement dated 8th October 2009, wrote a letter after 8 months accepting a letter titled 'resignation' which was never written to it. In effect the defendant is estopped from benefiting from claimant's notice of retirement in any way. I wish to pause a little from the above to address a salient issue raised by the learned defence counsel in his submission, while placing reliance on WAEC V. OSHONEBO SUPRA, that the claimant abandoned her duty and the learned claimant's counsel rightly put the position of the court in WAEC'S case in a proper perspective; which is that if an employee resigned his appointment he is by law automatically ceases to be an employee of the company and must have to leave with immediate effect by paying any of his indebtedness to the company, while the case is different from a employee who retires from his employment, he would be entitled to be paid gratuity and pension and may not exit the services immediately or automatically. Now, going by the argument of the defendant that the claimant abandoned her work after tendering her retirement letter, it then means on the authority of WAEC'S CASE relied upon by the defendant, that the claimant retired and did not resign as they would want the court to believe. I say so in view of the fact that a staff who resigns his appointment has to exit the company immediately by the decision in WAEC's case and that being the case it would be wrong for the defendant to contend that claimant abandoned her job, but if claimant abandoned her job as argued by the defendant, it then means that claimant's evidence is to be believed by the court when her testimony is placed on the weight of evidence and the balance of probability, claimant's claim is true, I find that she retired from the services of the defendant on the 8th October, 2009 and was to remain in the defendant's company until the end of 3 months notice period, but was disallowed from entering the premises of the defendant. I so hold. Another important question that needs an answer to in considering the main issue under consideration, is when is the effective date of claimant's letter of retirement? It is the law that a letter of retirement/resignation/termination becomes effective not from the date it was written but from the date the letter was received by the employer or his agent, taking inference from the case law authorities cited supra, the claimant's letter of retirement to the defendant on the 8th of October, 2009, is deemed to have been received by the defendant before it reeled out its own letter of 8th October, 2009 at 5.14 PM to its staff informing them of the ''resignation of the claimant, contrary to the title, content and tenor of her letter, this indicates that the claimant's letter was received earlier before the defendant's Email to its staff. The implication of this is that the claimant's letter of retirement became effective immediately the defendant received it on the 8th October 2009. I so find and hold. Now, can an employer suo motu change the title of a letter of retirement written to it by its employee or stop him from his work? Before answering this question it is important to state the position of the law as regards termination/retirement/resignation of appointment which is enshrined in the case law authority of WAEC V. OSHIONEBO supra; In ADEFEMI V ABEGUNDE [2004] 15 NWLR (PT 1) PG 28; the Court of Appeal , while placing reliance on the decision in the case of BENSON V. ONITIRI [1966] NSCC, 52; held that an employee does not have to wait for an acceptance of his letter of resignation, ditto letter of retirement and went on to state that same becomes effective from the date it was received by the employer. See also OSU V. P.A.N. LTD; Supra. What this means is that in the instance case the claimant's letter of retirement from the defendant's employment became effective immediately it was received by the defendant's agents, irrespective of whether the defendant replied, and I also find that the defendant cannot suo motu rephrase/redefine/interpret/commute the letter to mean resignation of appointment. The law is that where a document is unambiguous the court should give it its simple meaning. See the case AL-RISSALAH PRINTING & PUBLISHING CO. LTD & ORS V. KASSEM EL-HOUSSENI & ORS[2007]LPELR, 8543, CA, where Kekere Ekun JCA as she then was held thus- "In the interpretation of documents, the golden rule is that when a document is clear and unambiguous, the operative words in it should be given their simple and ordinary grammatical meaning. See: U.S.N. LTD. VS SAX (NIG) LTD. & ORS. [1994] 8 NWLR (361) 150; L.R.C.1. V. MOHAMMED [2005] 11 NWLR (935) 1; ABALOGU V. THE SHELL DEV. CO. OF NIGERIA LTD. [2003] 6 SCNJ 262."Per KEKERE-EKUN, J.C.A.(Pp. 54-55, paras. G-A). The claimant's letter of retirement is unambiguous and thus non of the parties is to be allowed to rephrase/rewrite/commute or give it a different meaning, same having been effective as held supra on the 8th October, 2009. It is also reasonable to state that if a letter of retirement/resignation/ termination becomes effective on the date same is received by the employer/employee, it makes a sound conclusion that any other letter/action subsequent to it seeking to give a different meaning becomes otiose, ineffective and bound to be discountenance by the court. It is from the above reasoning and placing reliance on the position of the law as held supra that I find and hold that the claimant retired from the service of the defendant on the 8th of October, 2009 and did not resign as contended by the defendant. Consequently, I discountenanced with the defendant's Email dated 8th October, 2009 sent to all its staff at 5.14pm informing them that the claimant resigned her appointment. I so find and hold. It is noteworthy that the claimant consistently held on to her position as regards the manner of her disengagement from the defendant's company as expressed in her subsequent letters to the defendant dated 16th January, 2010, 26th April, 2010; 11th June, 2010 and 6th June, 2010, where she reiterated that she retired and did not resign her appointment from the defendant services. The defendant as evinced on record wrote a letter dated 7th June, 2010 i.e. exhibit OO3, accepting claimant's disengagement from its company after about 8 months of receipt of her letter of retirement. In view of the position of the law restated supra, the defendant does not have to accept the letter for it to become effective, but the letter of 2nd June, 2010 is deemed to have accepted claimant's letter of retirement from the 8th day of October, 2009 when it received claimant's letter of retirement. I so find and hold. It is the position of the defendant by the testimony of its witnesses and pleadings that the claimant was asked to resign because of her complicity in the Decanon transaction. It is pertinent to state at this stage that it is a settled principle of law that an employer has the power to determine its relationship with an employee with or without any reason but in a modern day world of works an employee cannot be sacked without reason given by its employer. See the Termination of employment ILO Convention No 158 of 1982 and recommendation No 166. Specifically Articles 1, 2, 4, 5 and 6. This court by Section 254C(1)(f)(h) and Section 7(6) of National Industrial Court Act 2006, can apply International labour standards and or international best practices in matters of this nature in arriving at a just decision, whether or not this International Labour Standards has been domesticated by Section 12 of the 1999 Constitution as amended. See also Aborisade Femi; '' Determination of contract of employment in Nigeria South Africa and Zimbabwe'' P.9 -10; and P.44 -46. It is equally the law which has gained notoriety that where the employer gives reasons, it must of a necessity in the present day world of works prove same. See the case of PENGASSAN V. SCHLUMBERGER ANADRILL NIGERIA [2008] 11 NLLR PT. 29 164, where this court held that where an employer gives a reason for determining it relationship with its employee, it behoves on it to justify the reason, see also ANGEL SHIPPING & DYEING LTD V. AJAH[2000] 13 NWLR (PT. 685)532. The defendant in its bid to prove its contention, tendered in evidence the Adhoc Committee report on the Decanon investment transaction, i.e. exhibit OO5. Arguing that the claimant was indicted and thus it urged her to resign. It is also revealed by the testimony of defence witnesses 2, that the defendant urged the claimant to exit its employment after serving it for 20 years as a result of her complicity in the Decanon transaction. The defendant in proving this tendered the Adhoc Committee Report dated 19th November, 2008 and was ratified by the board of the defendant on the 10th December, 2008. A perusal of the report , i.e exhibit OO5, shows that the committee did not indict the claimant, rather it decided thus ''the committee is unable to arrive at a single 'guilt party' and in the absence of any concrete evidence could only conclude that no act of omission or commission on the part of either the board or management was done in bad faith or with ulterior motive''. However, it recommended that the claimant should be censured vide the issuance of a final written warning which should remain in her record of service for a period of 12 months. It is interesting to note that the defendant ratified this report which only recommended that a warning letter should be issued to the claimant and not termination or dismissal of her employment. One then wonders why the defence relied so much on this report in asking the claimant to exit its company. This report as evinced on record was ratified by the board almost one year before the claimant was asked to go. To then rely on this report after one year and which recommendation as ratified by the Board of the defendant is for issuance of a warning letter to be put in the claimant's file for 12 months, is a clear case of an afterthought, in breach of the Board's approval and merely giving a dog a bad name in other to hang it. The defendant surreptitiously as a face saving ploy stated by its DW2 that the claimant was asked to resign in order to save her job in view of her involvement in the Decanon Transaction, when indeed the recommendation of the committee is for her to be given a warning same having been ratified by the board since 2008. I find that the defendant has failed to prove that the claimant's appointment was determined on the basis of her involvement in the Decanon transaction. I so find and hold. Assuming but not conceding to the alleged resignation of claimant's appointment. It is on record that the defendant urged the claimant at its AGM board meeting of 7th October 2009 to exit its employment immediately because of its restructuring and that there is no position for the claimant under the new structure. By law an employer has the right to restructure or reorganise its company but it must be for verifiable reasons, including the nature of restructuring. An employer cannot just use a straight jacket word of restructuring or reorganisation as justification without giving the components or facts in prove of same with respect to this instance case. See MRS AMAECHI LAURETTA ONYEKACHI V. STANQUEEN INVESTMENT LTD UNREPORTED SUIT NO. NICN/LA/271/2014. DELIVERED ON 4TH DECEMBER, 2015. The defendant did not at trial proffer a single component or fact to justify the reason for which it asked the claimant to exit its employment. In fact there is no single document on record in prove of this reason. Not even a copy of the Minute of meeting of 7th October, 2009, where the claimant was asked to exit the defendant's employment was tendered by the defendant in proof of its case. Rather the defence chose to shift the blame on the claimant for not producing a copy of the minutes of the meeting of its Board, when DW2, Sheila Ezeuko admitted under cross examination that the minutes of meeting of the Board are in her custody as the Company Secretary of the defendant as well as the list of members. One then becomes suspicious of the defendant's failure/refusal to produce same before the court even when the claimant had given it notice to so do. The only credible inference that could be drawn from the defendant's failure to produce its minutes of meeting of 7th October, 2009 which the defendant is in a position to produce same being in its possession, is that by Section 167(d) of the Evidence Act, the minutes of meeting of 7th October 2009, if produced would have been unfavourable to the defendant's case, hence it withheld it. I discountenance with the defence submission that the claimant ought to have produced a copy, because the minutes of meeting cannot be in the custody of the claimant. It is obvious that the defendant no longer want the claimant in its services, consequent upon which it asked her to disengage her services immediately from its employment. What the defendant did in law is what is called constructive termination/retirement/dismissal, it is actually the submission of the learned defence counsel at paragraph 1.32 of his reply on points of law, that the claimant's employment was unequivocally terminated and made a sweeping statement that an employer may choose to terminate the services of its employee for any reason and for no reason at all. In other words the defendant forced the claimant to exit its employment without any just cause as elucidated supra. That of course is against international best practices Article 4 of ILO Convention 158 of 1982 and such should be frowned at by the court. The consequence of which is that claimant is entitle to damages in form of the requisite notice period, pension and gratuity and other entitlements consistent with her status an Executive Director of the defendant, quia ita lex scripta est (meaning that is the position of the law). It is of note that the learned defence counsel was approbating and reprobating in his reply address filed on 26th August 2015, in a breath he submits that the claimant's services was no longer required by the defendant hence it terminated her employment and in another breath he posits that the claimant's disengagement was done by the claimant herself. See paragraphs 1.32 and 1.34 respectively. The position of the law is that the court cannot allow a party to approbate and reprobate, or to blow hot and cold. This doctrine is embedded in the Latin maxim Quod approbo non reprobo. See also the case of SUBERU V. STATE[2010] 8 NWLR (Pt. 1197) 586 S.C. Per Adekeye JSC; UNIVERSITY OF ILORIN & ORS V. ODULEYE [2006] LPELR, 11708. I do not want to impute that the defence does not actually know what its intentions were when it asked the claimant to exit its company. It did infact knew hence it quickly in a surreptitious manner sent an Email to all its staff informing them that claimant has resigned her employment and in return gave the claimant 3 months' salary in lieu of notice.( This act gives credence to the position of the claimant that she was asked to exit the defendant's employment). It is in the light of all the above that I find and hold that the defendant has failed or refused to justify its reasons for asking the claimant to exit its employment, consequently I readopt my finding earlier in this judgment and hold that the claimant retirement letter dated 8th of October 2009 stands and accordingly, I resolve issue one in favour of the claimant. The next question to proffer answer to, is whether or not the claimant is entitled to the reliefs sought? Claimant is seeking for a declaration that her disengagement by virtue of her letter dated 8th October, 2009 from the defendant's company was by way of retirement and not resignation. The answer to this question is as held supra under issue one, I therefore adopt my decision above and hold that the claimant retired from the defendant's employment by her letter dated 8th October, 2009 as this is in tandem with the policy of the defendant as stipulated at clause 20.2 and 20.5 of its Policies and Procedure manual. I so find and hold. As regards the claimant's claim for an order of mandatory injunction compelling the defendant to give a full and detailed account of the pre 2005 non contributory pension scheme established, funded and managed by the defendant for the benefit of its employees including her. It is the argument of the defence that this prayer is baseless in that claimant failed to state to whom it should be given and or for what purpose. It is further submitted that the claimant has failed to show her locus as she is not seeking this prayer in a representative capacity. Whilst commending the cases of ABUBAKAR & ORS V. JOS METROPLITAN DEV. BOARD & ANOR [1997] LPELR-5301 CA; NDIC V. S.B.N PLC [2003] NWLR (PT. 801) P311 @371-372, counsel submitted that the claimant has failed to fulfil the conditions for which a mandatory injunction can be granted and thus urged the court to refuse same. The leaned claimant's counsel on his part canvassed on this issue that a mandatory order is one that is to compel a party to perform a particular course of action or conduct. The case law authorities of NKPORNWI V. EJIRE [2009] 9 NWLR (PT. 1145,131 @ 164; EKANEM V UMANAH [2006] 11 NWLR (PT.992, 510 @ 527 and C.B.N V. U.T.B.(NIG) LTD [1996] 4 NWLR PT. 445,694 @ 703 and submitted that the evidence before this court supports the guiding principles for a grant of this manner of relief. To the claimant counsel, claimant had by her letter dated 10th June, 2010 exhibit C, and another dated 11th June, 2010 (exhibit D14) respectively, indicated to the defendant that the computation of her pre 2005 pension contribution refund as contained in the defendant's letter of 2nd June, 2010 exhibit OO3,shows that the defendant did not remit fully her pension pre and post 2005. It is the claimant's contention that the court should compel the defendant to produce its actuarial valuation of its pre 2005 pension, failing which the actual pension benefit accruable to the claimant cannot be determined. In response to the assertion by the defence that claimant's relief is vague, counsel submits that it is plain on record that the relief sought is claimant's and the recipient of the full and detailed account of pre 2005 pension scheme is the claimant. As regards the locus of the claimant in seeking this relief, counsel submits that locus standi is the legal right to sue and the question to be asked is whether the claimant has a legal right to protect. In support of this position counsel cited the case of IN RE: IJELU V. L.S.D.P.C. [1992] NWLR (PT. 266) 414 ' 436; the apex court per Karibi-Whyte, JSC, quipped that a plaintiff will have locus standi in matter only if he has a special legal right or has sufficient interest in the performance of the duty sought to be enforced or where his interest is adversely affected. To the claimant the failure of the full and detailed account of pre 2005 non contributory pension scheme demanded by her affects the computation of her terminal benefit. Counsel submits that it is in the interest of justice that should be considered in granting this application and thus urged the court to grant this relief. A pertinent question here is, is the claimant entitled to pre 2005 defendant's non contributory pension scheme which is put in place by the defendant for the benefit of all its staff including the claimant?. If the answer to this question is in the affirmative then next what legal right does she have in seeking for this relief? It is not in contention that the defendant has a non contributory scheme for all its staff pre 2005, which includes the claimant in this case. Does the claimant has any legal right to protect as regards this scheme? By AGBOOLA V. AGBODEMU & ORS [20080] LPELR 8461; OYEWUMI V. OSUNBADE[2001] FWLR (Pt. 82) 1919; Locus standi denotes the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a court of law to pursue a specified cause. It is a constitutional requirement to enable a person to maintain an action. It is obvious from the facts before the court that the claimant was in the defendant's employ for more than 20 years and thus should have sufficient interest either legal or equitable in the defendant's non contributory pension scheme for its staff. It is in the light of this that I find and hold that the claimant has a locus standi in seeking for relief (b). I so hold. Next, has the claimant proven her claim or satisfied the conditions for grant of this relief? Hear Onoghen JSC on mandatory injunction in the case of OHAKIM V. AGBASO [2010]19 NWLR (PT.1226) 172,SC, ''Mandatory Injunction, which is our concern in this judgment, on the other hand, is an order of court requiring a party to do a specific act or acts. It is often seen as a restorative order invoked by the court to deal with a defendant who has no respect for the court of law. In most cases, a mandatory injunction is granted to undo what has already been done, that is why it is usually referred to as restoratory injunction." (P. 45, paras. C-E). While in A.G. ANAMBRA STATE V. OKAFOR [1992] NWLR (Pt. 224) 396; it was held that mandatory injunction is granted on its own distinct principle and is often targeted at a completed act. If the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff such as where on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted. These are in brief the circumstances under which a mandatory injunction may be granted by the court. Now is the claimant's case one for which a mandatory injunction may be granted? I have decided supra that the claimant is an interested party who has a legal right to sue for a relief under the defendant's non contributory scheme. She also has a right to seek for her entitlement under same and the defendant did pay her part of her entitlement but under paid her. Howbeit, the order for mandatory injunction would not be appropriate for such a relief, it is consequent upon that that I find that the claimant although has a legal right to sue for her entitlement under the defendant pre 2005 contributory pension scheme, her prayer for mandatory injunction fails. The Court in the overall interest of justice of this case however, orders the defendant to pay the claimant's entitlement under pre 2005 contributory pension scheme as well as the sum of N925,486.87as her post pension entitlement. I so hold. As regards relief C, claimant is seeking for the order of court compelling the defendant to pay her the balance of her entitlements in the sum of N22,404,492.27. On this claim, the defendant argued that the claimant failed to show the benefit and entitlements she is entitled to and in its reply on point of law, that the defendant's policy relating to calculation of terminal benefit is derived from its trust Deed. That according to learned defence counsel is uncontroverted and thus deemed admitted. Commended is the case of INSURANCE BROKERS OF NIGERIA V. ATMN; [1996] 8 NWLR (PT. 466) 316 @ 327. and further submitted that the claimant is only entitled to 3 months salary which she was expected to give which amounts to the sum of N28,359,342.25 which the defendant has paid the claimant. It is in my respectful view that the learned defence counsel is speaking from the two sides of his mouth, I say so in view of his arguments in paragraph 1.36 of his reply address, when he said ''...the claimant is entitled to terminal benefits from October, 2009-7th January, 2010( taking into consideration the 3 months notice period which she was expected to give) which amounted to the sum of N28,359,342.25 which the defendant has paid the claimant''. If indeed it's incumbent on the claimant to pay the defendant 3 months' salary in lieu of notice, why did the defendant pay her the sum stated above as 3 months' salary to the claimant. The payment of 3 months' salary in lieu of notice to the claimant is a clear indication and has further strengthened the reasoning of the court in holding that the defendant constructively terminated/retired the claimant from its employment. Defence submits further that the claimant is entitled to basic salary from October 2009- 7th January, 2010. That the claimant is not entitled to allowances as outfit, fuel, tea, management, lunch, driver, utilities, GSM, Club dues, 13th month and end of year entitlement as the claimant resigned from the defendant's employment on 7th October, 2009. Counsel submits as regards the golden handshake that it is not automatic but at the discretion of the defendant and that the defendant was not obliged to give same to the claimant in view of the circumstances that led to her exit. To the defence it did not extend the benefit of the special handshake to the claimant in the light of her omissions and urged the court to so hold. Having held that the claimant retired at the whims and caprices of the defendant by forcing her to so do from the defendant's employment by her letter of retirement dated 8th October, 2009, exhibit C; what then are her terminal benefits. By exhibit OO7, Royal exchange Assurance (Nig) Plc gratuity and Pensions scheme, appendix 1 at page 20, provides that an employee who spends about 21 years in the services of the defendant, she is then entitled to be paid 210% of her final pensionable emolument, which is N23,387,280.00 is what claimant is entitled to as gratuity for having served the defendant for about 21 years. It is on record that the claimant was actually paid this sum of money by the defendant as part of the monies paid to the claimant by the defendant and same admitted by her. What is then to be considered is whether or not claimant was paid 3 months' salary in lieu of notice. It is equally on record that the defendant by a letter dated 2nd June 2010, exhibit B, the letter conveying her terminal benefit to her, the defendant paid the sum of N3,579,270.97 as claimant's salary from October, 2009 to January 7th 2010. This was acknowledged by the claimant as part payment of her terminal benefit from the defendant. It is in that vein that I find and hold that the claimant has been paid 3 months' salary in lieu of notice. I so find and hold. As regards claimant's unspent leave, it is the submission of learned defence counsel that unspent leave are not monetized and that the defendant has paid the claimant what she is entitled to as unspent leave allowance. Learned claimant's counsel admits that for the court to grant claimant's relief or declaration. she must prove her entitlement to such declaration. It is her claim that she is to be paid all her entitlement by the defendant up to 30th June, 2010. According to counsel, claimant has by exhibit C established that she retired from the defendant's company effective on the 30th June, 2010. That the defendant having accepted same by its letter dated 2nd June, 2010. Counsel adopts his submission in support of reliefs A and urged the court to grant claimant's relief C. As regards claimant's unspent leave, the defendant by its exhibit B, paid the claimant the sum of N2,321,169.23 as her earned leave allowance, however, the claimant is claiming the sum of N380,160.00 as leave allowance pro rated for 6 months. It has been decided supra that the claimant is entitled to 3 months notice of retirement or alternatively 3 months' salary in lieu of notice and not 6 months notice as she is claiming as per exhibit OO1, it is on this premise that I find that the claimant is not entitled to 6 months prorated leave allowance and also unused leave allowance in the sum of N2,577,046. It is the submission of learned defence counsel that by exhibit OO11, the defendant no longer allow its staff to accumulate their leave, it urged the court to discountenance with the claimant's claim for unused leave. It is the argument of the learned claimant's counsel on the other hand that the defendant had earlier before the issuance of exhibit OO11 approved that the claimant is entitled to unused leave and all documents she tendered predates exhibit OO11. Claimant admits that out of 141 unused leave days defendant based its calculation on 127 days. It is obvious on record by exhibits B4, i.e. the leave Roaster of the claimant issued by the defendant evinces that the claimant has 140 days unused leave arrears. In effect the defendant failed to pay the claimant the shortfall of 13 days unused leave. It is in this regard that I find that the claimant is entitled to both 3 months pro rated leave allowance for year 2009 and 13 days unused leave which is the total of N380,160.00 plus 13 days which is the sum of N237,599.96 all totalling N617,759.96. I so find and hold. Is the claimant entitled to be paid outfit allowances, Education allowance, fuel allowance, driver allowance, GSM, Management expenses, Diesel, unremitted medical benefit, Utility, Club dues and Special Handshake. It is the defendant's contention that claimant is not entitled to any of these claims. It is on record vide the claimant's payslip that the defendant pays the claimant all the above allowances monthly as part of her monthly salary and since the claimant by the authority of OSU V. PAN SUPRA was still in the employment of the defendant up till the end of the 3 months notice period, she is thus entitled to the payment of these allowances, the total of which is N1,497,096.77. I so find and hold,. Next is the Special/Golden Handshake. It is obvious on record that the defendant by its exhibit OO6, gave one Abayomi Rufai a special Handshake in the sum of N3,000,000.00 as Special Handshake, the defendant did not deny paying this amount to its exited management officer, it contention however, is that the claimant is not entitled to same in view of the circumstances under which she exited the company. The claimant by her exhibit D14 shows that a Special Handshake was given to one Mr. Oluyemi who was given 50% of his basic salary for 3 years as a director while one Mr. Ayo was paid Terminal basic salary multiplied by each year as a Director, this was not controverted or challenged by the defendant. The claimant as evinced on record gave 21 years of her fruitful years to the service of the defendant and it is plain on record as elucidated by the defendant in its exhibit D14 ,.i.e the letter they wrote to all its staff informing them that the claimant has resigned stated commended the claimant thus- ''...In her over 20 years stay in the company, she proved to be unswerving and worked assiduously with others to evolve a new corporate identity for the company and also contributed immensely towards the success of the enterprise transformation project. We will all miss her''. It is clear from the above that the defendant acknowledges the valuable contribution of the claimant to the defendant, it will thus be out of place for the defendant in its written address to submit that claimant is not entitled to Special Handshake, it is in the light of the above commendation by the defendant and from all the reasoning above that I find that the justice of this case demands that the claimant be given a Special Handshake by the defendant. The position adopted by this Court is succinctly captured by the instructive and incisive holding of the Supreme Court of India in NTF MILLS LTD V. THE 2ND PUNJAB TRIBUNAL, AIR 1957 SC 329, to the effect that - 'The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the 'rights' and 'wrong' of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.' (P. 454, Paras. A-H). I thus place heavy reliance on the above decision and hold that the justice of this case in the circumstances is to find and hold that the defendant should pay the claimant a special Handshake of N3,000,000.00 as it paid to one Abayomi Rufai in 2009 the same year the claimant was asked to go. I so find and hold. Claimant is claiming interest in the sum of N28,359,342.25. It is the law per Order 21 Rule 4 of the National Industrial Court Rules 2007, which provides that the National Industrial Court of Nigeria at the time of delivering a judgment or making an order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment. This means that, a Claimant cannot ask for pre-judgment interest. The Court can only award interest on judgment as from the date of judgment. It is in consequence that I find that claimant is not entitled to pre judgment interest. I so find and hold. Finally, claimant is seeking for the sum of N2,200,000.00 as cost of action. The law is trite that cost follows event and a successful litigant is entitled to cost. The court in exercising its discretion, must thus take into consideration in awarding cost the peculiar circumstances of the case in arriving at a just decision on the award of cost. Claimant filed this case in 2011, about 5 years and two months ago. Her counsel has put up 26 appearances in the matter and considering the fact that the claimant is represented by a firm of Senior Advocate and the declining value of naira, it is from all these that I exercise my discretion in favour of the claimant and access cost in this case as N2,000,000.00. I so find and hold. As regards the defendant's counterclaim, a pertinent question to answer is, is the defendant/counterclaimant entitled to its reliefs sought? The defendant counterclaimant is seeking for the sum of N500,000,000.00 being damages for the negligence that cost the defendant counterclaimant to suffer a substantial loss. 2. An order for N50,000.00 being bank charges that have been incurred as a result of the claimant/defendant to counter claims negligence. 3. An order directing the claimant/defendant to counterclaim to bring and surrender the defendant's/counterclaimant's generator which is in her custody to the defendant/counterclaimant's office in Lagos. 4. A declaration that it was a breach of trust and wrongful for the claimant/defendant to counterclaim not to have indicated to the subsidiary companies(REGIC & PROFUND) which she sat on their boards, of her disengagement from the services of the defendant/counterclaimant, as the claimant/defendant to counterclaim held those positions in trust for the defendant. 5. An order directing the claimant to pay the defendant counterclaimant the sum of N100,000,000.00 as damages for breach of trust. 6. Such further order or orders as this court might deem fit to make. It is the contention of the defendant that DW2 during cross examination stated that the adhoc Committee set up for the Decanon transaction recommended that the claimant be censured for her role in the Decanon transaction and she was censured after the Board's ratification and that was why she was ordered to resign. Counsel went on that the claimant's testimony that she knew nothing about the Decanon transaction should be taken with a pinch of salt. It is the argument of the defence that claimant was negligent in her handling of the Decanon project as the Company Secretary and the Head of investment failed to exercise utmost good faith. That the claimant did not act in the best interest of the company and thus negligent as regards the Decanon transaction. Whilst citing Section 288 Companies and Allied Matters Act, that the claimant was in her breach of her duties as an employee and as a director in the defendant's company. He urged the court to so hold. The learned claimant's counsel on his part submits that the defendant in its bid to fulfil the provision for its recapitalization, its board approved that it approach First Inland Bank to secure a loan of N500,000,000.00 to enable it purchase its shares for which it used its asserts to secure. That through a nominee company Decanon the defendant used the sum of N500,000,000 to purchase 250,000,000 shares. It is the further submission of counsel that DW2 admitted that the said share scheme was not ratified by the Board of the defendant which is according to counsel in breach of Sections 159 and 160 of CAMA, which is to the effect that a company is not allowed to utilise its capital to purchase its own shares. Counsel urged the court to hold that the Decanon transaction is criminal and an illegality and any issue arising from same should be so treated. It is the further argument of the counsel to the claimant that DW1 and DW2 admitted that the claimant approval limit is not more than N200,000.00 and that the Board of Directors approved the Decanon transaction and thus urged the court to hold that the claimant was not negligent as regards the Decanon transaction. The law is long settled that he who asserts must prove. It is therefore incumbent upon the defendant/counterclaimant to prove its claims against the claimant. The defendant in prove of these claims tendered before the court the Adhoc Committee report exhibit OO5. I have held supra in this judgment that the defendant by its Adhoc Committees report which was ratified by the Board could not arrive at a 'guilty party' ( using the words of the Committee), but did recommend that the claimant be censured, Exhibit OO5. It is the final conclusion and recommendation of the Adhoc Committee that -- ''The Committee was unable to arrive at a single "guilty party" and in the absence of any concrete evidence could only conclude that no act of omission or commission on the part of either the Board or Management was done in bad faith or with ulterior motive. Concerning the release of the 250 million shares to Decanon and the manner in which the repayment of the N500 million FIB loan facility was handled by the ED (CS), she should be censured via the issuance of a final written warning which should remain on her record of service for a period of 12 months. It is the testimony of DW2 as expressed by the defence in prove of this counterclaim that it was as a result of the above finding that the defendant asked the claimant to exit its company. It is plain on record and as decided above that there is nothing in either the above report in exhibit OO5 nor any letter written by the defendant evincing the defendant's claim. All that transpired is as stated in exhibit OO5, infact the warning letter which was recommended to be put in claimant's file for 12 months was neither produced before this court nor any other document upon which it would want the court to rely on in making its decision. I adopt my reasoning above on this point and states further that it is plain on record as alluded to by the report that there was no single guilt against the claimant. It is in line with the Committee's report that I find that claimant cannot be held responsible for the actions of the defendant in the Decanon transaction having acted with other Management staff and same ratified by the Board. I also discountenance the learned defence counsel submission in his reply address that a Federal High Court delivered a judgment that Decanon transaction was not illegal, this so in the light of the position of the law that facts not pleaded go to no issue. This suit was nowhere pleaded nor facts linking to same pleaded. An as the law is trite, counsel address no matter how eloquent cannot take the place of evidence. It is consequent upon this finding that I hold that the defendant's claim for N50,000,000.00 as bank charges also fail. Infact there is no document before the court evincing such charges. I so find and hold. As regards the claim for the generating set, it is in evidence that the claimant never denied that the defendant gave her a generating set, it is equally not in contention that the defendant had given such benefits to its other Management staff. I have held supra that the claimant was forced to retire from the defendant company. It is on record that one Abayomi an erstwhile Managing Director of the defendant was given a Generator and Honda Accord official car. What is good for the goose is good for the gander. It is in the light of that, that I find that the defendant having given the claimant the generating set is not entitled to claim same having forced the claimant out of its service before her period of retirement. See the decision of this court in MICHAEL OLADIPO V. OAK PENSIONS., UNREPORTED SUIT NO NICN/LA/176/2013 DELIVERED ON 26TH JANUARY, 2016. It is in that light that I find that the defendant's claim for the generating set fails. I so hold. With regards to the defendant's counterclaim, seeking for a declaration that it was a breach of trust for the claimant not to have indicated to the subsidiary companies (REGIC & PROFUND) which she sat on their boards of her disengagement from the services of the defendant. It is plain on record that the defendant has failed to substantiate this claim before the court, there is nothing on record or by way of evidence in proof of this claim and the law is trite that a party seeking for a declaration must of a necessity proof same. It is also in line with the decision of the court in O.S.H.C V. SHITTU supra, that I find and hold that the defendant cannot benefit from the claimant's retirement for which it has failed to recognise. It would indeed be against natural law and equity to so allow, it is indeed an afterthought and unmeritorious. I therefore resolve this issue in favour of the claimant. It is also consequent upon all the above that I find that the defendant/counterclaimant having failed to prove it counterclaims is not entitled to N100,000,000.00 as damages for breach of trust. I so find and hold. In sum, it is obvious from all the above that the claimant's claims succeed in the most part, while the defendant's counterclaims fail. For the avoidance of doubt, I make the following declaration and Orders-- 1. That the claimant retired from the defendant employment by her letter dated 8th October, 2009. 2. That the claimant is to be paid the shortfall of her entitlement under the pre 2005 Pension scheme as well as the sum of N925,486.87as her Post 2005 pension shortfall to her PFA and evidence of such remittance produced to the court in 14 days. 3. That the claimant is to be paid the sum of N617,759.96 as 13 days unused leave and 3months pro rated leave allowance for 2009. 4. That the claimant is entitled to outfit, education, Fuel, GSM, Management. Domestic/Utility, tea, driver, car maintenance the total sum of which is N1,585,790.32. 5. That the claimant is to be paid the sum of N3,000,000.00 as Special Handshake. 6. That the claimant's claim for pre judgment interest fails. 7. That the claimant is entitled to have in her possession the generating set given to her while in the defendant's services. 8. That the defendant's counterclaims fail. 9. Cost is accessed at N2,000,000.00 to the claimant. 11.That the total sum of N8,129,037.15 is to be paid to the claimant by the defendant within 30days failing which it shall attract an interest of 21%. Judgment is entered accordingly. HON. JUSTICE OYEWUMI OYEJOJU