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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Chief G. O. Okusanya, and with him are S. A. Adesanya, O. D. Shyllon, Miss Q. O. Epiah and Miss O. Lawanson, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Babatunde Fagbohunlu SAN, and with him are Ayodeji Olomojobi and Joshua Abe, for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">By General Form of Complaint and statement of facts both dated 14<sup>th</sup> February 2012, the claimant instituted the present action against the defendant seeking the following reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the retirement of the claimant by the defendant on 28<sup>th</sup> September 2011 before the mandatory age of retirement and without notice is involuntary, and is therefore wrongful, unlawful and illegal being contrary to binding contractual documents between the claimant and the defendant and the usual customary practice and procedure of the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that retirement of the claimant by the defendant on the 28<sup>th</sup> September, 2011 without notice and without compliance with the usual customary practice and procedure of the defendant is contrary to good and international labour best practice.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the defendant is bound to follow its customary practice and procedure relating to involuntary retirement by paying the claimant’s retirement benefits under the following heads:<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l17 level1 lfo10"><!--[if !supportLists]--><span style="font-family:Symbol;mso-fareast-font-family:Symbol;mso-bidi-font-family: Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->6 months payment in lieu of notice<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l17 level1 lfo10"><!--[if !supportLists]--><span style="font-family:Symbol;mso-fareast-font-family:Symbol;mso-bidi-font-family: Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Redundancy payment<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l17 level1 lfo10"><!--[if !supportLists]--><span style="font-family:Symbol;mso-fareast-font-family:Symbol;mso-bidi-font-family: Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Special ex-gratia payment<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l17 level1 lfo10"><!--[if !supportLists]--><span style="font-family:Symbol;mso-fareast-font-family:Symbol;mso-bidi-font-family: Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Benefit in kind and other normal allowances or benefits.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->N61,36000.00 (Sixty-One Million, Thirty-Six Thousand Naira only) being and representing the claimant’s redundancy benefit.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order mandating the defendant to pay to the claimant the sum of N111,842,093.00 representing claimant’s salaries for the 4 years period remaining for him to reach the mandatory retirement age.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->6.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order mandating the defendant to pay to the claimant the sum of N99,396,468.78 (Ninety-Nine Million, Three Hundred and Ninety-Six Thousand, Four Hundred and Sixty-Eight Naira, Seventy-Eight Kobo) being and representing the claimant’s allowances for the four years remaining for him to attain the mandatory age of retirement.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->7.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order mandating the defendant to pay to the claimant the sum of N131,546,000.00 (being and representing the claimant’s benefits-in-kind for the remaining period of 4 years.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l20 level1 lfo8"><!--[if !supportLists]-->8.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Interest at the rate of 21% per annum from the date of this suit until judgment is delivered, thereafter, interest at the rate of 10% per annum until judgment sum is liquidated.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant had filed its defence processes. Later, with leave of Court, it filed an amended statement of defence and counterclaim dated 18<sup>th</sup> July 2013, wherein it counterclaimed against the claimant as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo9"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N38,052,678.40 (Thirty-Eight Million, Fifty-Two Thousand, Six Hundred and Seventy-Eight Naira, Forty Kobo, being the total outstanding and unpaid sum due and retained by the claimant/defendant to counterclaim in respect of various unamortized allowances, loans, costs and indebtedness, comprised of sums specifically owing and due as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-1.0in;mso-text-indent-alt:-.25in; mso-list:l29 level1 lfo11"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>i.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N19,480,123.43 (Nineteen Million, Four Hundred and Eighty Thousand, One Hundred and Twenty-Three Naira, Forty-Three Kobo), being the unamortized Home Ownership Scheme fund balance due from the claimant/defendant to the counterclaim.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-1.0in;mso-text-indent-alt:-.25in; mso-list:l29 level1 lfo11"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>ii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N12,473,625.00 (Twelve Million, Four Hundred and Seventy-Three Thousand, Six Hundred and Twenty-Five Naira), being the outstanding balance of the claimant/defendant to the counterclaim’s indebtedness to the defendant/counterclaimant’s Cooperative Thrift and Credit Society which the claimant/defendant to the counterclaim authorized the defendant/counterclaimant to deduct from his last pay/gratuity/retirement benefits/other credits due to him from the defendant/counterclaimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-1.0in;mso-text-indent-alt:-.25in; mso-list:l29 level1 lfo11"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>iii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N1,897,757.94 (One Million, Eight Hundred and Ninety-Seven Thousand, Seven Hundred and Fifty-Seven Naira, Ninety-Four Kobo), being the unamortized sum of the payment of cash in lieu of status car paid by the defendant/counterclaimant to the claimant/defendant to counterclaim.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-1.0in;mso-text-indent-alt:-.25in; mso-list:l29 level1 lfo11"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>iv.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N537,527.78 (Five Hundred and Thirty-Seven Thousand, Five Hundred and Twenty-Seven Naira, Seventy-Eight Kobo), being the unamortized value of the household items provided by the defendant/counterclaimant to the claimant/defendant to the counterclaim for the use of the claimant/defendant to the counterclaim in his personal family house at Ezekiel Evor Road, Peace Estate, Ogidan, off Lekki Epe Express Way, Lekki, Lagos.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-1.0in;mso-text-indent-alt:-.25in; mso-list:l29 level1 lfo11"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>v.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N3,663,644.25 (Three Million, Six Hundred and Sixty-Three Thousand, Six Hundred and Forty-Four Naira, Twenty-Five Kobo), being the cost incurred by the defendant/counterclaimant in respect of the seven (7) security guards in the personal family house of the claimant/defendant to the counterclaim at Ezekiel Evor Road, Peace Estate, Ogida, off Lekki-Epe Express Way, Lekki, Lagos; at the rate of N74,768.25 (Seventy-four Thousand, Seven Hundred and Sixty-Eight Naira, Twenty-Five Kobo) per security guard, from 1<sup>st</sup> April 2012 to 31<sup>st</sup> October 2012.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-1.0in;mso-text-indent-alt:-.25in; mso-list:l29 level1 lfo11"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>vi.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N1,041,666.70 (One Million, Forty-One Thousand, Six Hundred and Sixty-Six Naira, Seventy Kobo) monthly, being the pro-rated monthly rent being paid by the defendant/counterclaimant on the house known as Gulf of Guinea Lodge located at No. 8 Sakete Close, off Cairo Street, Wuse 2, Abuja, from 1 April 2012 until delivery of possession of same, together with all the furniture and other household items therein by the claimant/defendant to the counterclaim to the defendant/counterclaimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo9"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of US$1,365.52 (One Thousand, One Hundred and Sixty-Five United States Dollars, Fifty-Two Cents) monthly (or its Nigerian Naira equivalent using the average (central) buying and selling exchange rates as provided by the Central Bank of Nigeria for the last day of each month), being the lease charges for the family car, Toyota Corolla 1.8ltr with registration No. HU 445 EKY provided by the defendant/counterclaimant to the claimant/defendant to the counterclaim from 1 April 2012 until delivery up of possession of the said car by the claimant/defendant to the counterclaim to the defendant/counterclaimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo9"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of mandatory injunction compelling the claimant/defendant to counterclaim to deliver up to the defendant/counterclaimant possession of the official residence (a 5 bedroom house known as Gulf of Guinea Lodge) located at No. 8 Sakete Close, off Cairo Street, Wuse 2 Abuja, together with all the furniture and other household items therein provided by the defendant/counterclaimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo9"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of mandatory injunction compelling the claimant/defendant to counterclaim to deliver up possession of the Toyota Corolla 1.8 family car with registration No. HU 445 EKY to the defendant/counterclaimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo9"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Exemplary damages in the sum of N100,000,000.00 (One Hundred Million Naira).<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo9"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Interest on the various sums stated in the preceding paragraphs at the rate of 21% from 1 April 2012 until judgment and thereafter at the rate of 10% until final payment of the entire judgment sum.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant filed a reply to the statement of defence and defence to the counterclaim dated 18<sup>th</sup> February 2014.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">At the trial, the claimant testified on his own behalf as CW, while Naaman Feyi Dienye, a pensioner and retired employee off the defendant, testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s written address is dated and filed on 11<sup>th</sup> March 2016, while the claimant’s is dated 29<sup>th</sup> March 2016 but filed on 30<sup>th</sup> March 2016. The defendant’s reply on points of law is dated 7<sup>th</sup> April 2016 but filed on 8<sup>th</sup> April 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CASE OF THE CLAIMANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The case of the claimant is that he was at Schipol Airport, Amsterdam when he received a bank alert on his phone that an amount had been credited to his account in respect of his “voluntary retirement”. He testified that he was shocked at this development as he had never at any time indicated a willingness or desire to retire from the services of the defendant. He stated that the so-called voluntary retirement had been orchestrated and imposed on him by the defendant with the aim of denying him of the entitlements that would flow from an involuntary retirement or retirement at the instance of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant’s testimony was in terms that there is a customary practice of the defendant governing voluntary retirement and gave an outline of the practice. He stated that the customary practice was not followed in his own case and that this was deliberately done by the defendant in order to deny him of the benefits that would have accrued to him. He testified in detail as to the differing procedure where members of the defendant’s staff volunteered to retire on their own and where such retirements were prompted by the defendant. The claimant then prayed that the reliefs he claims be granted.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CASE OF THE DEFENDANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The case of the defendant is that it employed the claimant sometime about 1<sup>st</sup> June 1984. In the course of the claimant’s employment with the defendant, the claimant held various positions in the defendant’s organization including Senior Industrial Relations Officer, Head Industrial Relations/Transport and Security, Operated Assets Manager, Human Resources & Organization Division Manager, District Personnel Division Manager and his last position as Corporate Public Affairs Division Manager. That the claimant’s employment relationship with the defendant was entirely governed by the defendant’s <i>Handbook for Nigerian Management Staff Conditions </i>of <i>Service </i>issued on 1<sup>st</sup> June 2011 (“the Conditions of Service”) revised from time to time (Exhibits C2 and D5). That the Conditions of Service were issued on 1 June 2011 and became effective from the same date. They were in force as at 30<sup>th</sup> September 2011 (Exhibits C2 and D5), and they provide for “voluntary retirement”, which is expressly stated to occur on the decision of either the “staff or Company” at any time after the employee had attained the age of 55 years (clause 15(a) of the Conditions of Service).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, following the claimant’s attainment of the age of 55 (fifty-five) years, which is the normal pension age as per the Conditions of Service, the defendant exercised its right under clause 15(a) of the Conditions of Service and retired the claimant with effect from 30<sup>th</sup> September 2011 in accordance with the Conditions of Service. That the claimant accordingly instituted this action on 14<sup>th</sup> February 2012 seeking various declaratory reliefs and orders mandating the defendant to pay to the claimant various sums allegedly representing the claimant’s salaries, allowances and benefits-in-kind for the 4 (four) years remaining for him to attain the mandatory age of retirement of 60 years in the year 2015. That the specific grounds on which the claimant challenged his retirement in this action are that the retirement is contrary to (i) the defendant’s customary practice and procedure, (ii) binding contractual documents and (iii) international labour best practice. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant contends that there is no such defendant’s customary practice and procedure, the claimant’s retirement was in accordance with his Conditions of Service and there is no applicable international labour practice. The defendant then complained about the fact that the claimant had retained certain benefits which he was given while in the employment of the defendant despite having been retired from the defendant and collecting monthly pensions, thereby leading to the defendant’s counterclaim for the various benefits-in-kind detained by the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the following facts are not in dispute.<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->It is mutually agreed and admitted by the claimant and the defendant that the Handbook for Nigerian Management Staff Conditions of Service (Exhibits C2 and D5) constitute the contractual document that governed the employment relationship between the claimant and the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The normal pension age as per the Conditions of Service is 55 (Fifty-five) years.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Under the Conditions of Service, the claimant can decide to retire or the defendant can decide to retire the claimant upon the claimant attaining the age of 55 years (contractually described by the Conditions of Service as “voluntary retirement”).<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The age at which the defendant must retire as per the Conditions of Service is 60 years (this is described by the Conditions of Service as “mandatory retirement” – i.e. unlike the “voluntary retirement” at age 55, once the claimant had attained the age of 60 the company cannot opt to continue to keep the claimant in employment).<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant was paid 6 months’ salary in lieu of notice of retirement as per the Conditions of Service.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant has been receiving monthly pension since October 2011.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant was retired by the defendant under the “voluntary retirement” process, i.e. upon his attaining the age of 55 as provided in the Conditions of Service (Exhibits C2 and D5) which the claimant admits is the contractual document that governed his employment.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->h)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant contests his retirement by the defendant on the basis that such retirement violates “customary practice”, the Conditions of Service and “international labour best practice”.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->i)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The only thing relied on by the claimant as evidence of the alleged “customary practice” is Exhibit C8 i.e. the Memorandum on Voluntary Separation of Staff dated 23<sup>rd</sup> July 1999.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->j)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant produced no other evidence to show the alleged “customary practice” relied on by him.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->k)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant produced no evidence at all to show the international labour best practice relied upon by the claimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l15 level1 lfo12"><!--[if !supportLists]-->l)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant has till date continued to retain certain benefits which he enjoyed while in the employment of the defendant despite having been retired from the defendant and collecting monthly pensions.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE DEFENDANT’S SUBMISSIONS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendant framed five issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l28 level1 lfo13"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not, on the evidence before this Court, the claimant has established that the claimant’s retirement by the defendant is contrary to the binding contractual documents between the claimant and the defendant which governed the employment of the claimant with the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l28 level1 lfo13"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not, on the evidence before this Court, the claimant has established the existence of any customary practice regulating the claimant’s employment relationship with the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l28 level1 lfo13"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not, on the evidence before this Court, the claimant has established the existence of a breach by the defendant of any international labour best practice.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l28 level1 lfo13"><!--[if !supportLists]-->4)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not, on the evidence before this Court, the claimant has established his claims to entitle him to the reliefs sought.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l28 level1 lfo13"><!--[if !supportLists]-->5)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not, on the evidence before this Court, the claimant is liable to the defendant for the reliefs sought in its counterclaim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>ISSUE 1)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1) i.e. whether or not the claimant has established that his retirement by the defendant is contrary to the binding contractual documents between him and the defendant, the defendant submitted that the claimant’s contention is that his retirement by the defendant was done without notice and was “involuntary” (given that it was not at his instance, but the defendant’s) and, therefore, contrary to the binding contractual document between him and the defendant. To the defendant, relying on clause 15(a) of the Conditions of service, the claimant’s contention is entirely flawed and untenable as the conditions of service clearly provides that when the employee attains the age of 55 either he can decide to retire or the defendant can decide to retire him. That generally, clause 15 of the conditions of service shows a clear intention of the parties to provide for 2 (two) modes of retirement of a management employee from the services of the defendant after attaining the age of 55 years viz –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">(i) retirement at the age of 55 to 59 years at the decision of the staff or at the decision of the company (defendant) (contractually regarded by the parties as “Voluntary Retirement”) in clause 15(a); and<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">(ii) retirement at the age of 60 years (contractually regarded by the parties as “Mandatory Retirement”) in clause 15(b).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Specifically, that clause 15(a) dealing with “Voluntary Retirement” provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Voluntary Retirement<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">- Age: Between 55 – 59 years<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">- Decision: Staff or Company<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">- Notice: 6 months<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The party that fails to give formal written notice as aforesaid will pay to the other a compensation equal to the salary for the period of notice in-lieu thereof.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, as admitted by the claimant, the conditions of service constitute the contractual document between the claimant and the defendant. Thus, that by clause 15(a) of the conditions of service, the process of retirement either on the decision of the claimant or on the decision of the defendant is contractually described as a “Voluntary Retirement” regardless of who takes the decision. Accordingly, by the agreement between the parties reflected in the conditions of service, upon the claimant attaining the age of 55, the defendant can rightly retire him even if he did not want to retire at that time. It is thus the defendant’s submission that –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo14"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The conditions of service clearly provides that when the employee attains the age of 55, he can be retired either at his own option or at the option of the employer.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo14"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The conditions of service describes this process as “voluntary retirement”. That this is obviously to acknowledge the fact that at age 55, either the employer or employee can “volunteer” to end the contract of service (unlike the “mandatory retirement” that occurs at age 60, where the employer or employee has no choice, and the contract MUST automatically come to an end).<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo14"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->That it is trite that parties are at liberty to contract as they wish and so they can describe anything in their contract as they please. Thus, the contract in this case clearly expresses the agreement of the parties to describe the process of retirement at the age of 55 to 59 years at the decision of either the company or the staff, as “Voluntary Retirement”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then commend to the Court <i>Mr. Segun Babatunde </i><i>& anor v. Bank of North Ltd. & ors</i> [2011] LPELR-8249(SC) and <i>Ibama v. S.P.D.C. (Nig.) Ltd</i> [2005] 17 NWLR (Pt. 954) 364 at 379 regarding the sanctity of contracts of employment freely entered into by parties. Thus, that since based on the intention of the parties as reflected in their expressed words “Decision: Staff or Company”, the conditions of service clearly gave the defendant the right to retire the claimant upon his attaining the age of 55, such right cannot be legally discountenanced.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the further submission of the defendant that it is a well-established principle of law that it is not the function of a court of law either to make agreements for the parties or to change the agreements for the parties or to change their agreements as made, referring to <i>African Reinsurance Corporation v. Fantare</i> [1986] 1 NWLR (Pt. 14) 113) and <i>Nika Fishing </i><i>Co Ltd v. Lavina Corporation</i> [2008] 16 NWLR (Pt. 1114) 509 at 541. Thus, that even if this Court would have preferred a different nomenclature to describe what happens at age 55, this does not take away the right reserved to both parties under the contract, since this Court is not expected to change the agreement of the parties as made or make an agreement for them. That a contractual right is not taken away even if the parties use an inelegant nomenclature to describe that contractual right. In this case, that the contract clearly gave the defendant the right to retire the claimant upon his attaining the age of 55, regardless of the nomenclature given to it.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Next, the defendant addressed the claimant’s contention that he was retired “without notice” and “while he was on vacation”. First, that it should be noted that the contention that he was retired while on vacation is not part of the grounds on which the claimant based his action as reflected in the reliefs set out in the writ of summons and statement of facts. Therefore, it cannot be relied upon to invalidate his retirement. That it is trite that a claimant is bound by his claim as set out in the writ of summons, referring to <i>Woluchem v. Gudi</i> [1981] 5 SC 291 at 320 and <i>Ajayi v. Texaco Nigeria Ltd</i> [1987] 3 NWLR (Pt. 62) 577.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Moreover, that clause 15(a) of the conditions of service provides for all that is required to trigger the voluntary retirement, which is –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Notice: 6 months <o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The party that fails to give formal written notice as aforesaid will pay to the other a compensation equal to the salary for the period of notice in-lieu thereof.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Thus, that contrary to the contention of the claimant that he was retired “without notice” and “while on vacation”, all that was required of the defendant, pursuant to the conditions of service, was to give 6 months’ notice to the claimant or pay the claimant 6 months’ salary in lieu of notice. That in line with the conditions of service, the defendant accordingly paid the claimant 6 months’ salary in lieu of notice, which it communicated to him via a letter dated 23<sup>rd</sup> September 2011 i.e. Exhibit D6. That the claimant admitted receiving this payment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, contractually there is no provision in the conditions of service prohibiting the retirement of the claimant while on vacation. Therefore, the fact that the claimant was on vacation when he was retired by the defendant is inconsequential as the contractually required 6 months’ pay in lieu of notice was duly paid to him by the defendant which the claimant admitted receiving before this Court both in his pleadings and oral testimony. Thus, that there is no breach of contract of employment by the defendant. That it is trite in cases of retirement and or termination of employment, where an employer pays an employee salary in lieu of notice and the employee accepts such payment of salary in lieu of notice, such employee cannot turn around and complain about his termination and or retirement, referring to <i>Mobil Producing Nigeria Unlimited v. Asuah</i> [2001] 16 NWLR (Pt. 740) 723 at 762, <i>Morohunfola v. Kwara State College Technology</i> [1990] 4 NWLR (Pt. 145) 506 at 528, <i>Dr. </i><i>O. Ajolore v. Kwara State College of Technology</i> [1986] 2 SC 374 and <i>Olaniyan </i><i>& ors v. University of Lagos</i> [1985] 2 NWLR (Pt. 9) 599 at 683. That in the instant case, the claimant paid and he accepted the payment of 6 months’ salary in lieu of notice; as such he cannot turn around and complain about his retirement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that the claimant himself clearly recognizes that if his case were to be determined based on the conditions of service alone, his claim would fail. That that is why he found it necessarily to attempt to buttress an otherwise bad case by relying on “customary practice” and “international labour best practice”. That the claimant confirmed the above when, under cross-examination he stated that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, I confirm para 54 of my deposition of 17/12/2012. It is a combination of both customary practice and my conditions of service that give rise to the sums claimed therein.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also, that when posed the question to re-confirm once again whether his claims are predicated on both the conditions of service and customary practice, he admitted that his claim cannot succeed without the customary practice by stating that: “Yes, the customary practice is why I have most of the items as per para. 54 of my deposition”. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>ISSUE 2)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On issue 2) i.e. whether or not the claimant has established the existence of any customary practice regulating his employment relationship with the defendant, the defendant submitted that whilst it is not in dispute that the employment relationship between the claimant and the defendant is governed by a binding contractual document (i.e. Exhibits C2 and D5), “the same position cannot be taken in respect of the defendant’s contention that the claimant’s employment is governed by certain customary practices and procedures”. That under cross-examination, the claimant confirmed his understanding of “customary practice” to be “something that has happened so consistently that it has become a custom”. That the claimant alleged that by the defendant’s custom his retirement is unsustainable, and the applicable benefits, allowances and severance package, which ought to accrue to him, ought to be defined by the said conduct or practice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, it is the trite position of the law that the burden of proving a custom lies upon the person alleging its existence, referring to section 16(2) of the Evidence Act. 2011. That the claimant’s attempt to discharge the burden of proof to establish the defendant’s customary practice is particularly contained in paragraphs 21 – 31 of his witness statement on oath sworn to on 17<sup>th</sup> December 2012. That in summary, the customary practice which the claimant alleges in relation to voluntary retirement as per these paragraphs is as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l33 level1 lfo15"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Voluntary retirement prompted by the defendant is treated as redundancy, referring to paragraph 41 of the statement of facts.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l33 level1 lfo15"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->In the event of a voluntary retirement prompted by the defendant, the defendant would engage PENGASSAN and NUPENG;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l33 level1 lfo15"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->In the event of a voluntary retirement prompted by the defendant, the defendant would hold a tripartite meeting with PENGASSAN and NUPENG where a new voluntary exercise package would be agreed upon.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l33 level1 lfo15"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The defendant would thereafter pay such employee salaries, benefits and allowances for the remaining period the employee would have served the defendant before attaining the mandatory age of retirement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, it is instructive that the only evidence provided by the claimant in support of this aspect of the claimant’s testimony is Exhibit C8, i.e. the Memorandum on Voluntary Separation of Staff dated 23<sup>rd</sup> July 1999, wherein the claimant participated as part of the Management of the defendant in negotiations with PENGASSAN and NUPENG pertaining to a reorganization carried out in the defendant company in 1999 i.e. about 13 years before the claimant’s retirement. That under cross-examination of DW, where an attempt was made to elicit evidence from DW to corroborate the participation of the claimant in negotiations with PENGASSAN and NUPENG pertaining to a “Voluntary Retirement” exercise in 1999, DW reiterated his earlier testimony contained in paragraph 10 of his witness statement on oath sworn to on 31<sup>st</sup> January 2014 to the effect that “the claimant never participated in negotiations of issues of ‘voluntary retirement’ prompted by the defendant in the past”. That DW further stated that “employees who left the service in 1999 left on voluntary separation, not voluntary retirement”. That indeed, a perusal of Exhibit C8 i.e. the Memorandum on Voluntary Separation of Staff dated 23<sup>rd</sup> July 1999 would reveal the following –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l21 level1 lfo16"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The 1999 exercise was a “Voluntary Separation” exercise and not “Voluntary Retirement”. There was no “Voluntary Retirement” provision in the conditions of service as at 1999, referring to paragraph 46 of DW’s witness statement on oath and Exhibit D11.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l21 level1 lfo16"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The 1999 Voluntary Separation exercise involved different cadre of staff in the defendant company including NUPENG members, PENGASSAN members and Management staff, which was not the case in 2011, referring to paragraph 46 of the DW’s witness statement on oath.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l21 level1 lfo16"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The 1999 Voluntary Separation exercise involved the defendant’s staff who had not attained NRD i.e. Normal Retirement Date (i.e. the age of 55), whereas the claimant was retired in 2011 on the basis of having attained 55 years of age.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Based on the foregoing, the defendant submitted that it is, therefore, clear that the 1999 re-organisation exercise cannot in any way be described as a voluntary retirement exercise that can serve as a reference point for previous custom or practice of the defendant. In any event, that assuming without conceding that the 1999 re-organisation exercise can be described as a voluntary retirement exercise, it is instructive that, save for the said 1999 re-organisation exercise illustration given by the claimant, there is no other evidence of any other instance given by the claimant. Thus, that the necessary element for holding a conduct or practice as a customary practice or forming part of a custom i.e. repetitive or consistent conduct over long period of time (as admitted by the claimant himself under cross-examination) is non-existent in the case of the claimant. It is thus the submission of the defendant that the occurrence of an event only once cannot in any way amount to the establishment of a custom or customary practice, even going by the claimant’s own definition under cross-examination to the effect that a “customary practice” is “something that has happened so consistently that it has become a custom”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that assuming without conceding that there is any customary practice which the claimant can rely upon, it is instructive that the claimant did not call any other witness in support or corroboration of his assertion as to the existence of a customary practice. That going by section 18(1) and (2) of the Evidence Act 2011, it must be noted that the quality of evidence required to establish a custom must not only come from the party alleging the existence of the custom but must also come from another witness that is an employee of the defendant. The said section 18(1) and (2) of the Evidence Act 2011 provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(1) Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(2) Where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with section 73.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That section 73 of the Evidence Act 2011 on its part provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(1) When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed are admissible.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(2) The expression “general custom or right” includes customs or rights common to any considerable class of persons.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the foregoing provisions of the Evidence Act have been given judicial proclamation in a plethora of cases such as <i>Daramola v. Governor </i><i>of Osun State</i> [2004] 1 FWLR (Pt. 192) 112 at 132, which held that “a party who alleges custom of a particular community cannot rely on the evidence alone but must have evidence of witnesses of those who hail from that community”. That in relation to the claimant’s case herein, who asserts the existence of certain customary practices, his evidence alone is insufficient to establish the existence of the said customary practices and he ought to have corroborated his evidence by the evidence of other employees of the defendant, which he failed to do. That in the absence of any other evidence apart from the evidence of the claimant, the Court should hold that the claimant has failed to prove the existence of any customary practices which regulated his employment relationship with the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Based on the totality of the foregoing submissions, the defendant concluded by urging the Court to resolve this issue in its favour. Moreover, that it is trite that the Court cannot read into the contract between the parties i.e. the conditions of service terms which are not there as the claimant wants the Court do through his paragraphs 21 – 31 of his witness statement, referring to <i>Akinola </i><i>& ors v. LAFARGE Cement WAPCO Nigeria Plc</i> [2015] LPELR-24630(CA), <i>Ibama v. S.P.D.C. (Nig.) Ltd</i> (<i>supra</i>) at 379 and <i>Mr. Segun Babatunde </i><i>& anor v. Bank of North Ltd & ors</i> [2011] LPELR-8249(SC).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>ISSUE 3)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">In relation to issue 3) i.e. whether or not the claimant has established the existence of a breach by the defendant of any international labour best practice, the defendant answered in the negative. That statutorily, what amounts to good or international best practice in labour is a question of fact, citing section 7(6) of the NIC Act 2006, which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Thus, that international best practice, being a question of fact relevant to the claimant’s case, must be proved by evidence. That it is instructive that by section 7(6) of the NIC Act this Court is empowered to consider or “have due regard to” international best practice in labour in the exercise of its jurisdiction, a question of fact that requires proof. That this provision does not in any way clothe a “question of fact” with the supremacy to override or vary otherwise clear contractual or statutory provisions. Furthermore, that it has become a trend for some counsel to merely urge the Court to have regard to international best practice in coming to its decision and awarding claims for reliefs without adducing factual evidence to establish the existence of the international best practice. Similarly, in this case, that despite the fact that the claimant has claimed that his retirement by the defendant upon his attaining the age of 55 is contrary to international labour best practice, he has failed to establish the existence of the international best practices allegedly breached by the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that it is instructive that the claimant pleaded facts in respect of international labour best practice, which he indicated he would prove and establish at trial. That the claimant’s lame attempt to discharge the burden of proof to establish the existence of international best practices and a breach by the defendant is particularly contained in paragraphs 36 – 37 of his witness statement on oath sworn to on 17<sup>th</sup> December 2012, and paragraph 8 of his further statement on oath sworn to on 18<sup>th</sup> February 2014 as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">36. I have travelled widely and I know as a fact that in many countries of the world that I have been to, no worker can be retired without notice except the retirement is mandatory and the employer has a duty to notify the employee in writing of the date which he intends the employee to retire and the employee’s right to make a request not to retire on the intended date.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">37. The mode of my retirement by the Defendant without notice is in contravention of the usual custom. The mode of my retirement by the Defendant without notice is in contravention of the usual custom and practice of the Defendant in such retirements and conflicts with what is obtainable in other parts of the world and industrial relations and practice of the Defendant in such retirements and conflicts with what is obtainable in other parts of the world and industrial relations.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">8. Although I was on leave when the Defendant held the purported meeting stated in paragraph 25 of its statement of defense, it is against international best practice in labour and the Defendant’s customary practice for a sensitive issue like voluntary retirement to be discussed in the kind of forum provided by the Defendant which at best can be described as a town hall meeting. The discussion ought to have been private and strictly individualized which the Defendant failed to do.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that it is clear from the above that the claimant has entirely failed to establish the existence of international best practices or any breach of same. That in the unreported case of <i>Oyo </i><i>State Government v. Alhaji Bashir Apapa & ors</i> unreported Suit No. NIC/36/2007 the judgment of which was delivered on July 18, 2008 by this Court, where the respondents therein failed to establish the existence of international best practices which they relied upon, as in the case herein, this Court held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">We cannot conclude this judgment without a remark or two on the application of section 7(6) of the NIC Act 2006. The respondents had argued that it is not good international practice to brand all public servants, and teachers specifically, as being on essential services and so cannot embark on strike. Section 7(6) cannot be applied in this general and sweeping form. A litigant that seeks to rely on best international practice must be prepared to establish or prove same as what is best international practice in industrial relations is a question of fact.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, therefore, in the absence of any evidence establishing the existence of any international labour best practice, the case of a breach of any international labour best practice as alleged by the claimant against the defendant cannot hold on any ground. Based on the totality of the foregoing and in the absence of any evidence establishing a breach of any international labour best practice or the existence of same, the defendant concluded by urging the Court to resolve this issue in its favour.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>ISSUE 4)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On issue 4) i.e. whether or not the claimant has established his claims to entitle him to the reliefs sought, the defendant addressed each of the reliefs claimed by the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 1<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 1 is for a declaration that the retirement of the claimant by the defendant on 28<sup>th</sup> September 2011 before the mandatory age of retirement and without notice is involuntary and is therefore wrongful, unlawful and illegal being contrary to blinding contractual documents between the claimant and the defendant and the usual customary practice and procedure of the defendant. To the defendant, it is trite that a relief for a declaration by the Court is not granted for the mere asking. That in order for a Court to grant a relief for declaration, the claimant’s entitlement to such declaration must be clearly established by evidence, referring to <i>Ndu v. Unudike Properties Ltd</i> [2008] 10 NWLR (Pt. 1094) 24 at 29. That by a perusal of relief 1, the basis of the declarations sought are that the defendant retired the claimant before his mandatory age of retirement; the defendant retired the claimant without notice; the claimant’s retirement is involuntary; the claimant’s retirement is wrongful, unlawful and illegal; and, therefore, contrary to the conditions of service.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that in determining whether or not the claimant is entitled to the declaration sought, it is imperative to consider the provisions of the conditions of service as it is trite that a contract of employment would typically provide for the terms and conditions for the disengagement of the employment relationship amongst other terms regulating the relationship between the employer and the employee. That a perusal of clause 15 of the conditions of service, which deals with retirement, would provide answers as to whether the defendant’s retirement of the claimant after he had attained the age of 55 is contrary to the conditions of service.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant referred to clauses 14(2) and 15(a) and (b) of the conditions of service; and then reminded that Court that in construing the relationship of the parties in any contract, the court would confine itself to the plain words and meaning derived from the provisions containing the rights and obligations of the parties provided therein, citing <i>Abalogu v. S.P.D.C. Ltd</i> [2003] 13 NWLR (Pt. 837) 309 at 333. That based on the unequivocal provisions of the conditions of service, it is clear that the said conditions of service provides as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo17"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->there is a voluntary retirement provision as well as mandatory retirement provision;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo17"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->while voluntary age of retirement is 55 – 59 years, the mandatory age of retirement is 60 years or 35 years of service;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo17"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->“voluntary retirement” is decided either by a staff i.e. the claimant herein or by the company (in this case the defendant);<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo17"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->the claimant or defendant has the option of giving 6 months’ notice for a voluntary retirement or alternatively 6 months’ pay in lieu of notice;<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo17"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->the claimant’s retirement is contractually described in clause 15(a) as voluntary as opposed to involuntary.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in line with the terms of clauses 14 and 15 of the conditions of service, it is in evidence that the defendant, in exercise of the voluntary retirement provision contained in the conditions of service, retired the claimant on 30<sup>th</sup> September 2011 at the age of 56 years i.e. a year after attaining the normal retirement age of 55. Furthermore, that in line with the conditions of service, the defendant paid the claimant 6 months’ salary in lieu of notice, which the claimant did not deny, referring to the claimant’s testimony under cross-examination, which is that: “I do not know what the N89,235,712.50 stands for, but the N14,277,714 was paid in lieu of the notice period. Both sums are in my account”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, despite the claimant’s contention that his voluntary retirement by the defendant is contrary to the binding agreement between the defendant and the claimant, it is instructive that the claimant has not only admitted to his receipt of the 6 months’ salary in lieu of notice paid to him pursuant to the conditions of service, but he has also admitted that his entitlement to it is derived from the conditions of service, referring to the testimony of the claimant under cross-examination, which is that: “I am entitled to 6 months’ notice or payment in lieu as per para. 54 of my deposition. This is under my conditions of service”. That by this admission by the claimant, the claimant has, therefore, clearly acknowledged that he was retired under the “voluntary retirement” clause, as opposed to the redundancy clause which he contended.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the claimant has, where convenient, relied on the provisions of the conditions of service and at other instances, alleged that customary practice applied, notwithstanding sufficient provisions contained in the conditions of service. For instance, that the claimant contended that his retirement by the defendant should, by alleged customary practice of the defendant, be treated as redundancy. That despite this contention, the claimant opted to rely on the 6 months’ pay in lieu of notice provision under clause 15(a) of the conditions of service when clause 18(e) of the conditions of service provides for the terms governing redundancy, which include the provision of “payment of two months’ salary in lieu of notice”. That despite the foregoing and the defendant’s compliance with the unequivocal provisions of the conditions of service, the claimant, nonetheless, oddly maintains that his retirement is involuntary, unlawful, wrongful, illegal and contrary to the conditions of service.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any case, that in seeking to rely on clause 18(e) of the conditions of service dealing with redundancy, the claimant did not produce any evidence establishing any of the conditions for the application of the said clause 18I as stipulated in the clause. That as per the application of this clause, the claimant led no evidence to establish (i) that his retirement was as a result of excess manpower in the defendant (ii) that the defendant informed the Management staff of any anticipated redundancy and discussed the situation with them and (iii) that he was given two months’ notice or paid two (2) months’ salary in lieu thereof, etc. That it is instructive that the claimant, in making the foregoing assertion, has not pointed to any contractual document between the claimant and the defendant to justify his assertion that the defendant’s retirement of the claimant after he had attained age 55 is a breach of the employment contract, citing <i>Ibama v. S.P.D.C. (Nig.) Ltd</i> (<i>supra</i>) and <i>Amodu v. Amode</i> [1990] 5 NWLR (Pt. 150) 356 at 370. That although the instant case is not one of termination of employment, the onus nonetheless remains on the claimant to show the wrongfulness, unlawfulness and illegality he alleges, which he maintains is contrary to the binding agreement of the parties.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the absence of any proof that the voluntary retirement of the claimant is contrary to any binding contractual document, the defendant concluded by urging the Court to hold that the declaratory relief sought here by the claimant must fail.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 2<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 2 is for a declaration that the retirement of the claimant by the defendant on 28<sup>th</sup> September 2011 without notice and without compliance with the usual customary practice and procedure of the defendant is contrary to good and international labour best practice. To the defendant, by an examination of relief 2, the claimant seems to suggest the following –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l11 level1 lfo18"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->that the claimant’s retirement by the defendant was without notice;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l11 level1 lfo18"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->that the claimant’s retirement by the defendant was without compliance with the usual customary practice and procedure of the defendant;<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l11 level1 lfo18"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->that the claimant’s retirement by the defendant is contrary to good and international labour best practice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that, as earlier argued, based on clause 15(a) of the conditions of service the claimant or defendant in exercise of the voluntary retirement provision have the contractual option of giving 6 months’ notice or alternatively 6 months’ pay in lieu of notice. That it is in evidence herein that the defendant paid the claimant 6 months’ pay in lieu of notice, which the claimant received and accepted as confirmed in his testimony. Thus, that it is unconscionable for the claimant to maintain that his voluntary retirement without notice was wrongful.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As to whether or not the claimant’s retirement by the defendant was a violation of the defendant’s customary practice, the defendant referred to its arguments as to issue 1) and submitted that the claimant entirely failed to establish the existence of any customary practice and procedure or provide any evidence of the customary practice or corroborate same.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">With specific reference to the request for a declaration that the claimant’s retirement by the defendant is contrary to good and international labour best practice, the defendant referred to its preceding arguments in respect of issue 2). Based on the arguments already proffered in respect of the claimant’s failure to establish by evidence the fact of good and international labour best practice, the defendant submitted that the claimant, having failed in this regard, cannot be entitled to a declaratory relief in respect of same, urging the Court to so hold. On the totality of the foregoing, the defendant urged the Court to resolve relief 2 in its favour.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 3<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 3 is for a declaration that the defendant is bound to follow its customary practice and procedure relating to involuntary retirement by paying the claimant’s retirement benefits under the following heads: 6 months payment in lieu of notice, redundancy payment, special <i>ex gratia</i> payment and benefits in kind and other normal allowances and benefits. To the defendant, the claimant has by this declaratory relief again predicated his relief on alleged customary practice and procedure of the defendant. That, as already argued and demonstrated in respect of issue 1), the question as to the existence of customary practice is a question of fact which ought to be established by evidence and/or expert opinion. That this is consistent with the trite position of the law that he who asserts must prove. Thus, a mere assertion without any evidence to back it up cannot ground a decision in favour of the party that asserts, as this would offend the provisions of section 135 of the Evidence Act, citing <i>A.G. Rivers State v. A.G. Bayelsa State</i> [2013] 13 NWLR (Pt. 1340) 123 at 161.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that as already argued in addition to the claimant’s failure to establish customary practice and procedure, the claimant also failed to corroborate his testimony, a necessary element for establishing a custom or customary practice and procedure, referring to sections 18(2) and 73(1) of the Evidence Act 2011 and the case of <i>Daramola v. Governor </i><i>of Osun State</i> (<i>supra</i>). The defendant accordingly reiterated that in the absence of any established customary practice and procedure, the claimant cannot be entitled to the declaratory relief sought.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the submission of the defendant that whether the claimant is entitled to the heads of items listed in Relief 3 (i.e. 6 months’ payment in lieu of notice, redundancy payment, benefit in kind and other normal allowances and benefits), save for the special <i>ex-gratia</i> payment which is discretionary, is regulated by the conditions of service binding on the claimant and not customary practice and procedure. That this has been confirmed by the claimant under cross-examination when he testified thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I am entitled to 6 months’ notice or payment in lieu as per para. 54 of my deposition. This is under my conditions of service. <o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, it is under clause 15 at page 17 of Exh. C2 that I claimed 6 months’ pay in lieu of notice.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">………….<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I really do not know what the N89,235,712.50 stands for, but the N14,277,714 was paid in lieu of the notice period. Both sums are in my account.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the claimant, having confirmed receipt of both the 6 months’ payment in lieu of notice and the special <i>ex-gratia</i> payment, cannot rightly seek for declaratory reliefs that the defendant is bound to pay same sums to him. In any event, that relief 3 must fail on the basis that the declaratory relief sought is predicated on non-existent customary practice and procedure. That it is a trite position of the law that in the determination of actions before a court, the Court is bound to confine or limit itself to the claim before it as a court has no power, under any circumstances, to award a relief not claimed by the party, citing <i>Akinterinwa v. Oladunjoye</i> [2000] 6 NWLR (Pt. 659) 92. The defendant then urged the Court to resolve relief 3 in its favour.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that in addition to the declaratory reliefs sought by the claimant, the claimant also seeks pecuniary reliefs pertaining to redundancy benefit, salaries for the 4 years remaining to attain mandatory retirement age, allowances, benefits-in-kind and interest on all the sums claimed. That the claimant’s testimony in this case as contained in his witness statements on oath and as elicited from him in the course of cross-examination includes the following –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, I confirm para 54 of my deposition of 17/12/2012. It is a combination of both customary practice and my conditions of service that gave rise to the sums claimed therein.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That based on the claimant’s own assertion and the declaratory reliefs earlier addressed, all of which are predicated on customary practice and procedure and international labour best practice, the pecuniary reliefs sought by the claimant must also fail on the basis that said the pecuniary reliefs are predicated on unproven customary practice and procedure and international labour best practice. Notwithstanding this, the defendant still proceeded to specifically address each pecuniary relief.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 4<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 4 is for N61,36000.00 (sic) (Sixty-One Million, Thirty-Six Thousand Naira only) being and representing the claimant’s redundancy benefit. To the defendant, it is the claimant’s case and testimony that his voluntary retirement by the defendant, without compliance with its alleged custom and practice, was a deliberate attempt by the defendant to avoid the payment of redundancy benefit to the claimant. That the claimant maintains that he was not paid the requisite redundancy benefit which ought to have been the quantum derived from the calculation of “24 (twenty-four) months’ salary (current salary) plus 2 (two) months’ salary in lieu of notice”. That according to the claimant’s testimony –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify">[By] the practice of the defendant, retirement benefit usually paid when the company activates or prompts voluntary retirement comprise the following packages:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l19 level1 lfo19"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->6 months payment in lieu of notice<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l19 level1 lfo19"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Redundancy payment<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l19 level1 lfo19"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Special ex-gratia payment<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l19 level1 lfo19"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Benefit in kind and other normal benefits<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That based on the foregoing, it is evident that while on one hand the claimant maintains that he is entitled to certain “retirement benefit”, the claimant on the other hand, includes as part of his “retirement benefit” a claim for “redundancy payment”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That it is also instructive that as part of the reliefs which the claimant seeks from this Court, particularly reliefs 5, 6 and 7, are claims for salaries, allowances and benefits-in-kind for the 4 years period remaining for him to reach the mandatory age of retirement, while he has been collecting monthly retirement pensions since October 2011. The defendant continued that despite the claimant’s claims for salaries, allowances and benefits-in-kind for the 4 years period remaining for him to reach the mandatory age of retirement, the claimant nonetheless seeks for a redundancy payment, which it must be noted is not an alternative relief. Thus, that in essence, the claimant herein has muddled up the following claims in the claimant’s reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo20"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->a claim for retirement benefits;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo20"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->a claim for redundancy; and<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo20"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->a claim to earn salaries, allowances and benefits for a 4 (four) year period while he is currently enjoying the benefits of a retired employee such as monthly pensions.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, it is a trite position of law that “a plaintiff or defendant in his counter-claim cannot claim a relief which is inconsistent with the relief specifically claimed”, referring to <i>Fabunmi v. Agbe</i> [1985] NWLR (Pt. 2) 299 at 318 and <i>Lateef Adegbite </i><i>& anor v. Aminu Amasu</i> [2013] LPELR-21472(CA). Also referred to is <i>Isheno v. Julius Berger (Nig) Plc</i> [2008] 6 NWLR (Pt. 1084) 582 at 604, where the Supreme Court held the law to be that no employee is entitled to both retirement and redundancy benefits unless it is specifically provided so. To the defendant, based on <i>Isheno</i> the claimant’s claim for a monetary relief for redundancy cannot be joined to claims for retirement benefits. That a claim for redundancy cannot in any way be mistaken as a claim for retirement as both are distinct from each other and contradictory, referring to <i>Peugeot Automobile Nigeria Ltd v. Oje</i> [1997] 11 NWLR (Pt. 530) 625. That it is, therefore, clear that a redundancy, being a distinct head of claim from a voluntary or forced retirement, resignation or termination, cannot be maintained as a relief jointly with the other foregoing, urging the Court to so hold in this matter and refuse the claimant’s claim under the head of redundancy.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That assuming without conceding that the claimant could rightly maintain the relief for redundancy benefit in this case, it is instructive to note that the law that governs redundancy in Nigeria is the common law, the contract of employment (and the Labour Act, which is not applicable to employment of the nature or cadre of the claimant). Thus, that the position of the law as it relates to redundancy is that recourse will be made to the contract of employment between the claimant and the defendant, which is the conditions of service. That clause 18(e) of the conditions of service provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">(e) REDUNDANCY<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">i. The term “Redundancy” means involuntary and permanent loss of employment as a result of excess manpower.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">ii. The Company will use its best endeavours to find alternative employment for the employee before declaring him/her redundant. The Company shall keep the employees (Management staff) fully informed of any anticipated redundancy and shall discuss the situation in detail.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Company declares that in determining which employees are to be declared redundant the principle of “first in last out” shall apply to those who, in the opinion of the Company are of comparable skill and efficiency.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">iii. In the event that a staff shall be released on redundancy and provided that the Company has not been able to find an alternative employment for him/her, the Company shall in addition to other separation benefits, make to such staff a special redundancy payment at the rate of one month’s consolidated salary for every completed year of service, provided that in any case the redundancy payment shall not exceed a total of twenty-four (24) months’ salary.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Sufficient notice shall be given to such a staff but in no case shall it be less than two (2) months or payment of two months’ salary in lieu thereof.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, this provision clearly sets out “Redundancy” as a separate head from “Voluntary Retirement”. Thus, the unsubstantiated assertion of the claimant that the customary practice of the defendant is to treat voluntary retirement as redundancy is entirely incorrect.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That it is instructive that it is not the claimant’s case that he was not retired by the defendant but rather that, by the customary practice of the defendant, his retirement ought to be treated as a redundancy. That to take the position of the claimant will not only lead to an absurdity but will also seek to vary or alter a written contract’ and it also runs against the judicial authorities, citing <i>Mr. Segun Babatunde </i><i>& anor v. Bank of North Ltd & ors</i> (<i>supra</i>). That accordingly, the claimant cannot by an alleged and unsubstantiated customary practice vary the clear terms of the conditions of service by alleging that the retirement of the claimant by the defendant operates as redundancy; and secondly, the right approach to interpreting the conditions of service would be to consider the provisions of voluntary retirement and redundancy as distinct provisions, as to do otherwise would amount to an absurdity. On this basis, the defendant urged the Court to hold that the defendant’s retirement of the claimant pursuant to the express terms of the conditions of service cannot be taken as redundancy which is separately provided for under the same conditions of service. In addition, that the claimant did not provide any evidence to establish that the conditions for the applicability of the redundancy clause 18(e) as set out in that clause existed, urging the Court to hold that the claimant is not entitled to relief 4.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 5<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 5 is for an order mandating the defendant to pay to the claimant the sum of N111,842,093.00 representing claimant’s salaries for the 4 years period remaining for him to reach the mandatory retirement age. To the defendant, the claimant, by his claims, seeks contradictory and inconsistent reliefs from this Court. That while the claimant seeks a specific sum as redundancy payment, the claimant also seeks the relief to be paid the sum of N111,842,093.00 allegedly representing his salaries for the 4 years period remaining for him to reach the mandatory retirement age, despite the fact that he is currently enjoying the benefits of a retired employee i.e. (i) the claimant has received from the defendant 6 months’ salary in lieu of notice by which his employment with the defendant ended in September 2011, (ii) the claimant has received from the defendant the sum of N89,235,712.50 (Eighty-Nine Million, Two Hundred and Thirty-Five Thousand, Seven Hundred and Twelve Naira, Fifty Kobo) which the defendant magnanimously paid the claimant as <i>ex gratia</i> and (iii) since October 2011, the claimant has been receiving the monthly pension payments due to him as a retired employee.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Thus, that a grant of relief 5 by this Court would occasion grave injustice on the defendant by reason of the following –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo21"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Firstly, a grant of Relief 5 would be inconsistent with the provisions of the conditions of service as a payment of salaries for the 4 years period remaining for the claimant to reach the mandatory retirement age is not provided for anywhere in the conditions of service, a fact duly acknowledged by the claimant under cross-examination, where he stated as follows:<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify">No there is nothing in Exhibit C2 showing that I am entitled to 47 months’ salary. I am however entitled to it until I retire.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify">No there is nothing on redundancy that entitles me to 47 months’ salary.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify">No there is nothing in Exhibit C2 showing that where I am made redundant I am entitled to allowance for the remaining 4 years of service until I reach the retiring age of 60.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo21"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol;mso-bidi-font-style: italic">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Secondly, a grant of relief 5 would amount to the claimant receiving salaries for work not done, particularly for the fact that the claimant cannot be reinstated and foisted on an unwilling employer, the defendant herein, referring to <i>Ezekwere v. Golden Guinea Brew. Ltd</i> [2000] 8 NWLR (Pt. 670) 648.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo21"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol;mso-bidi-font-style: italic">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Thirdly, a grant of Relief 5 would amount to the claimant receiving salaries as if he is still an employee of the defendant, while also simultaneously receiving pension for being a retired employee of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that the full compensation which the claimant is entitled to has been decided in countless number of cases such that it is now firmly settled law that in an action for wrongful retirement, where the court finds that the retirement is wrongful, the proper measure of damages is what the employee would have earned within the period of notice required to properly bring the employment to an end, and not what the employee would have earned up to the date by which his employment would have ordinarily ended, referring to <i>Mobil Producing Nigeria Unlimited v. Asuah</i> [2001] 16 NWLR (Pt. 740) 723. That in the instant case, while not conceding that there has been any wrongful retirement of the claimant by the defendant, it is instructive to note that the defendant has already paid to the claimant what he would have earned within the period of notice required to bring his employment to an end i.e. six (6) months’ salary in lieu of notice as prescribed by the relevant conditions of service. Thus, that even in the event that the Court holds in this case that the defendant had wrongfully retired the claimant, the defendant has already paid the claimant damages in accordance with the measure of damages recognized by law and the conditions of service. Thus, that this Court cannot award the claimant more money. The defendant then urged the Court to refuse the claimant’s relief 5 and resolve it in favour of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 6<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 6 is for an order mandating the defendant to pay to the claimant the sum of N99,396,468.78 (Ninety-Nine Million, Three Hundred and Ninety-Six Thousand, Four Hundred and Sixty-Eight Naira, Seventy-Eight Kobo) being and representing the claimant’s allowances for the four years remaining for him to attain the mandatory age of retirement. To the defendant, by the claimant’s testimony, a breakdown of what comprises his allowances is as follows –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Allowances<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual Christmas bonus N24,066,247.78<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual security allowance N14,277,714.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual leave allowance N14,277,714.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Lunch Subsidy N5,170,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual Children Christmas gift/Christmas<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify">Party/Christmas turkey allowance N1,220,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual status household appliances maintenance allowance N2,400,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Monthly entertainment expenses N2,585,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->h)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Children educational assistance N1,140,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->i)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual furniture grant (4yrs X=n= 957,000.00) N3,828,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->j)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual productivity bonus (4yrs X 1cms) N9,518,476.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->k)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual status generator maintenance allowance N2,552,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->l)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual negotiation bonus (4yrs x 1cms) N9,518,476.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->m)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual status car maintenance allowance N5,734,800.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->n)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual status car insurance (reimbursable) N2,500,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l27 level1 lfo22"><!--[if !supportLists]-->o)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Transportation allowance to return home after retirement N608,041.00<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">SUB – TOTAL <u>N99,396,468.78</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that by the conditions of service (i.e. Exhibits C2 and D5) and the Revised Conditions of Service for Managers (i.e. Exhibits C3A & C38 and 5A, 5B, 5C & 5D) these allowances are available to subsisting employees of the defendant and not retired employees. In the same vein as the preceding arguments on the issue whether the claimant is entitled to salaries for the 4 years period remaining to attain the mandatory retirement age, the defendant submitted that the claimant cannot be entitled to allowances for the 4 years period remaining to attain the mandatory retirement age. That it is a well-known fact that basic salary and allowances of an employee go hand-in-hand, as the basic salary and all entitled allowances payable to an employee constitute gross salary. Put differently, that gross salary is the total amount of income from all sources before any deductions’ are made, referring to <i>Intels Nig. Ltd </i><i>& ors v. William E. Bassey</i> [2011] LPELR-4326(CA). Thus, that a finding by the Court that the claimant is not entitled to salaries for the 4 years period remaining for the claimant to reach the mandatory retirement age would also necessarily amount to a resolution of relief 6 in favour of the defendant. The defendant accordingly reiterated repeated its arguments in respect of Relief 5.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That it is important to also reiterate that the provisions of the conditions of service do not provide anywhere therein for the payment of allowances to retired Management staff; and that these allowances are also not available to an employee that is let off under the redundancy provisions (assuming, without conceding, that the claimant’s position that he was disengaged as a result of redundancy is even tenable). That as indicated earlier, the Courts have upheld the sanctity of contracts between employers and employees, referring to <i>Intels Nig. Ltd </i><i>& ors v. William E. Bassey</i> (<i>supra</i>) and <i>Ibama v. S.P.D.C. (Nig.) Ltd</i> (<i>supra</i>) at 379. The defendant then urged the Court to resolve relief 6 in favour of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 7<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 7 is for an order mandating the defendant to pay to the claimant the sum of N131,546.000.00 being and representing the claimant’s benefits-in-kind for the remaining period of 4 years. To the defendant, based on the testimony of the claimant, the claimant’s claim for the sum of N131,546,000.00 is comprised of the following –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Benefits-in-kind for the remaining 4 years: Components:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Company rented house in Abuja (=n=15million/yr. X 4 N60,000,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Status car for Divisional Managers (Toyota Prado Jeep) N10,000,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Family car (Toyota corolla 1.8 – rented for 4yrs<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify">@ =14=290,000/YR. for 4 yrs N13,630,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Status generator 40KVA N3,000,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Status household appliances N2,000,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Family overseas holidays; every 2 years (twice) N19,866,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Reimbursement for lenses & frames for staff, spouse & children N500,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->h)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Medical care for 4 children for 4 years at N500,000/ year N2,000,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->i)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Security guards in Claimant’s house at Lekki<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify">(7 guards at =14= 60,000 per person per month x 47 months) N19,700.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->j)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Professional body membership (SPE & IPM) N330,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l24 level1 lfo23"><!--[if !supportLists]-->k)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Social club membership (IBB Golf Club, ABUJA) N14,480,000.00<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">SUB – TOTAL <u>N131,546,000.00<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the defendant’s contention that by the above listed benefits-in-kind, the claimant has presented before this Court monetary values to the benefits-in-kind most of which he presently retains. That with the exception of items (f), (g), (i), (j) and (k) above, the claimant retained and has been enjoying the other items since his retirement; item (i) was retained (albeit wrongfully) until 31<sup>st</sup> October 2102. The defendant then submitted that the claimant cannot be entitled to the relief claimed herein on the basis of the following –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l18 level1 lfo24"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The actual benefits in kind are presently under the retention of the claimant despite having retired on 30<sup>th</sup> September 2011.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l18 level1 lfo24"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The claimant has retained the actual benefits in kind for the 4 (four) years period being claimed for as he has since attained the mandatory age of retirement on 24<sup>th</sup> August 2015 and surpassed same.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l18 level1 lfo24"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->A grant of the relief would amount to unjust double compensation.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l18 level1 lfo24"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The conditions of service does not provide for the payment of the monetary value of benefits in kind to a retired employee.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That it is noteworthy that the claimant has confirmed the foregoing in his testimony under cross-examination where he stated the following –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes I am entitled to benefits in kind until I reach the retiring age of 60. No, Exh. C2 does not have any provision entitling me to benefits in kind until the retiring age of 60.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, I am currently occupying a house known as Gulf of Guinea Lodge at Sakete Close, off Cairo Street, Wuse II, Abuja.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I turned 60 years on August 24, 2015.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, the said Wuse II House is my official residency given to me by the defendant.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, I am staying in that house till today because I believe I am still a staff of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Consistent with the testimony of the claimant, the defendant noted from the conditions of service, Exhibits C2 and D5, which binds the relationship between the claimant and the defendant, that the claimant is not entitled to the monetary equivalent of the benefits in kind provided for in the conditions of service subsequent to his retirement. That the conditions of service only provides for certain benefits in kind, as opposed to monetary sums, to be provided to the claimant, which he is only entitled to retain for a maximum of a period of six months from the date of the applicant’s retirement i.e. 6 months from 30<sup>th</sup> September 2011, referring to clause 15 (d) of the conditions of service, which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Retention of Facilities After Retirement<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The following facilities assigned to a Management staff while in the employment of the Company shall be retained by him/her for a period of 6 (six) months from the date of his/her retirement:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l5 level1 lfo25"><!--[if !supportLists]-->-<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Drivers; Rented/Occupied Apartments; Security Guards; Telephones; ICT facilities in his/her house or apartment.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:.75in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l5 level1 lfo25"><!--[if !supportLists]-->-<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Status Cars (not fully amortized); Family Assigned Cars (not fully amortized).<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:.75in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l5 level1 lfo25"><!--[if !supportLists]-->-<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Household Items (not fully amortized).<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l5 level1 lfo25"><!--[if !supportLists]-->-<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Computer, Laptop, Printer and ICT facilities (retention only by application and Management approval).<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">However, if the retired staff elects to keep any of the items not fully amortized after the 6 (six) months, he/she shall pay the book value of the item(s).<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">A gsm handset (without sim card) assigned to a staff shall be retained by him/her at no charge since it is a one off item.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Retired Directors/General Managers and Division Managers shall continue to enjoy diesel for generators and fuel for cars as follows:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l5 level1 lfo25"><!--[if !supportLists]-->-<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Diesel for Generator: 1,700 litres per month.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l5 level1 lfo25"><!--[if !supportLists]-->-<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Fuel for Car: 330 litres per month.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That while it is clear that the claimant’s relief 7 is for monetary sums representing his benefits-in-kind for a period of four years, the claimant has retained the enjoyment of the benefits-in-kind which he has computed in monetary terms in his claim for the entire 4 years period. The defendant then submitted that due to the fact that the claimant had stopped working for the defendant since 30<sup>th</sup> September 2011 (having been lawfully retired and having been receiving his pension in the meantime), it is unjust for the claimant to have retained the enjoyment of the benefits due to him as a serving employee of the defendant while still seeking from this Court the monetary sums representing the aforesaid benefits-in-kind for a period of four years. Indeed that these are sums that the defendant is entitled to recover back from the claimant, a point addressed in the context of the defendant’s counterclaim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, whilst the claimant is seeking the monetary value of the benefits in kind over a 4 (four) year period, the defendant has over the same 4 (four) year period been –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l25 level1 lfo26"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->paying rent for the official residence occupied by the Claimant at No. 8 Sakete Close, off Cairo Street, Wuse Zone 2, Abuja, referring to Exhibit D13 (Letter of Award/Tenancy Agreement dated 13<sup>th</sup> April 2011);<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l25 level1 lfo26"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->paying rent on the claimant’s family status car (a Toyota Corolla 1.8) rented by the defendant, including the costs of the driver provided there for, referring to Exhibit D21<b> (</b>Directed Services Invoices for lease of family car Toyota Corolla 1.81tr Car);<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l25 level1 lfo26"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->paying for the provision of yearly medical care for the applicant’s four children; and<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l25 level1 lfo26"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->paying (until 31<sup>st</sup> October 2012) the cost of providing seven (7) security guards at the applicant’s family residence at No. 16 Ezekiel Uvo Crescent, Peace Estate, Ogidan Sangotede, Lekki/Epe Road, Lagos, referring to Exhibit D16 (Invoice/Payment Advice for provision of security guards).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Thus, that a grant of relief 7 would be unconscionable and unjust as the defendant will be bearing double costs i.e. the costs of providing the benefits of a serving employee to the claimant and the cost of providing the benefits of a retired employee to the claimant. Conversely, that the claimant would be gaining more than is rightfully due to him by retaining the benefits which he alleges to be due to him as a serving employee of the defendant while at the same time enjoying the benefits of a retired employee.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that the claimant seeks through relief 7 to unjustly enrich himself and overreach the defendant by retaining the benefits which he alleges to be due to him as a serving employee of the defendant while he is currently enjoying the benefits of a retired employee, namely (i) the claimant has received from the respondent the 6 months’ salary in lieu of notice by which his employment with the defendant ended on 30<sup>th</sup> September 2011, (ii) the claimant has received from the defendant the sum of N89,235,712.50 (Eighty-Nine Million, Two Hundred and Thirty-Five Thousand, Seven Hundred and Twelve Naira, Fifty Kobo) which the defendant magnanimously paid the claimant as <i>ex gratia</i> and which is in excess of the applicant’s gratuity entitlement, and (iii) since October 2011, the applicant has been receiving the monthly pension payments due to him as a retired employee. That on the basis of the grave injustice that will be visited upon the defendant if the claimant’s relief 7 is granted in these circumstances, the Court should refuse a grant of relief 7.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Relief 8<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Relief 8 is for interest at the rate of 21% per annum from the date of this suit until judgment is delivered, thereafter, interest at the rate of 10% per annum until judgment sum is liquidated. To the defendant, based on the circumstances and evidence which support a refusal of reliefs 1 – 7, relief 8 must necessarily fail, urging that relief 8 be resolved in its favour by refusing it.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>ISSUE 5)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">As for issue 5) i.e. whether or not the claimant is liable to the defendant for the reliefs sought in its counterclaim, the defendant answered in the affirmative. The reliefs the defendant is claiming by way of counterclaim have already been reproduced earlier in this judgment. The defendant proceeded to address them under named heads.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Unamortized Claims of the Defendant/Counterclaimant<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Here, the defendant first reiterated that parties to a contract of employment are bound by the express terms and conditions stipulated therein. That the evidence before this Court is that pursuant to the conditions of service (Exhibits C2 and D5) the defendant provided the claimant with certain benefits whilst he was in the employment of the defendant for the duration of his employment consistent with his various managerial positions, including his last position as Corporate Public Affairs Division Manager. The said benefits included a rented and furnished house for use as official residence, a home ownership scheme fund, a status car, a family car, security guards for his personal family house, household items, etc., referring to paragraphs 66 to 103 of the counterclaim as well as paragraphs 67 - 106 of the defendant’s witness statement on oath dated 31<sup>st</sup> January 2014. That the conditions of service clearly provides what happens if some categories of the aforementioned benefits, which the claimant obtained whilst he was still in the employment of the defendant, and which are the crux of this counterclaim, were not fully amortized.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Thus, that with respect to the unamortized benefits, the claimant had the option of returning those benefits to the defendant upon his retirement in accordance with the conditions of service, or paying the unamortized value of specific benefits which he decides to hold on to or refuses to return to the defendant. The defendant then reproduced clause 15(d) of the conditions of service which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The following facilities assigned to a Management staff while in the employment of the Company shall be retained by him/her for a period of 6 (six) months from the date of his/her retirement.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">………………………………………<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Status Cars (not fully amortized); Household items (not fully amortized); Family Assigned Cars (not fully amortized).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That from the express wordings of clause 15(d) of the conditions of service it is clear that the claimant is bound to pay the unamortized value of the aforementioned benefits after 6 months of his retirement from the defendant’s employment, if he intends to retain them or if he refuses to return them. Notably, that the claimant has not disputed the fact that he took all aforementioned benefits from the defendant, neither has he disputed the fact that those benefits are not fully amortized. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the claimant’s simple position is that he was still willing to work up to the mandatory retirement age in order that the grant may be fully amortized. In other words, if he is given the opportunity to work, he will be able to meet his obligation. That this argument is clearly untenable because the reality (based on the contract between the parties) was that the claimant ceased working for the defendant since October 2011. That if the argument were correct, then an employer will simply stop according any benefits to an employee whenever the employee’s retirement age (whether voluntary or mandatory) is approaching, since the employee will seek to evade his/her obligation to pay the unamortized value of such benefits on the basis that they have not had enough time to amortize the benefits. The defendant then submitted that the claimant has not offered any sustainable defence whatsoever as to why he should not pay the unamortized claims.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the question, therefore, turns on whether the defendant has been able to prove the specific unamortized sums that the claimant is liable to pay back in the sum of N38,052,678.40 (Thirty-Eight Million, Fifty-Two Thousand, Six Hundred and Seventy-Eight Naira, Forty Kobo). The defendant proceeded to consider each of the benefits and the outstanding unamortized sum that the claimant is liable to pay and which all make up the sum of N38,052,678.40.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim a)(i) – Unamortized Home Ownership Scheme<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The counterclaim here is for the sum of N19,480,123.43 (Nineteen Million, Four Hundred and Eighty Thousand, One Hundred and Twenty-Three Naira, Forty-Three Kobo), being the unamortized Home Ownership Scheme fund balance due from the claimant. In proof of this counterclaim, the defendant referred to paragraphs 93 – 99 of the defendant’s counterclaim and paragraphs 96 – 102 of the defendant’s witness sworn deposition as well as Exhibit D22 (Home Ownership Scheme (HOS) Application for Lump Sum Entitlement). To the defendant, the claimant in the course of his employment with the defendant applied for a Home Ownership Scheme (HOS) for lump sum entitlement with full knowledge, intention and agreement to be bound by the conditions governing the entitlement. Clearly, that the terms and conditions of Exhibit D22 entered into by the claimant and defendant authorized the defendant to apply the claimant’s separation benefits in settlement of any outstanding balance or unamortized balance of the total lump sum collected by the claimant, in the event of his separation from the defendant, whether premature or otherwise.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The application form for the HOS with which the claimant derived this benefit and which the claimant personally executed on 17<sup>th</sup> November 2011 specifically states at page 2, second paragraph as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I understand that my separation benefits will be held as security by the Company for the amortization period of ten (10) years.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That on the basis of this application which was approved by the defendant vide Exhibit D23 (Memorandum dated 24<sup>th</sup> February 2011) and brought to the notice of the claimant vide Exhibit D24 (letter dated 8<sup>th</sup> April 2011), two separate payments were made to the claimant to wit: the sums of N21,472,015.00 (Twenty-One Million, Four Hundred and Seventy-Two Thousand, Fifteen Naira) and N858,881.00 (Eight Hundred and Fifty-Eight Thousand, Eight Hundred and Eighty-One Naira). That the second payment to the claimant in August 2011 was effected by online transfer directly into the claimant’s United Bank for Africa (UBA) Plc bank account. That Exhibit D25 (UBA Account Ledger Inquiry (Online Financial Transaction Interface) evidences this payment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that it is undisputed that at the time of the retirement of the claimant from the employment of the defendant, only the total sum of N2,783,409.35 (Two Million, Seven Hundred and Eighty-Three Thousand, Four Hundred and Nine Naira, Thirty-Five Kobo), had been amortized in respect of both the first and second payments made by the defendant to the claimant, leaving an unamortized balance sum of N19,480,123.43 (Nineteen Million, Four Hundred and Eighty Thousand, One Hundred and Twenty-Three Naira, Forty-Three Kobo), in respect of the first and second payments above-mentioned. That the said unamortized balance sum remains due from the claimant. It is this indebtedness that the defendant is presently claiming from the claimant; which indebtedness the defendant submitted the claimant has not denied noting also that parties are bound by their contract, citing <i>Olaniyan v. University </i><i>of Lagos</i> (<i>supra</i>). The defendant then urged the Court to grant the defendant’s claim and mandate the claimant to pay the outstanding unamortized obligation in respect of the Home Ownership Scheme.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim a)(ii) – Staff Cooperative Loan<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The counterclaim here is for the sum of N12,473,625.00 (Twelve Million, Four Hundred and Seventy-Three Thousand, Six Hundred and Twenty-Five Naira), being the outstanding balance of the claimant’s indebtedness to the defendant’s Cooperative Thrift and Credit Society which the claimant authorized the defendant to deduct from his last pay/gratuity/retirement benefits/other credits due to him from the defendant. To the defendant, it has been shown in evidence in this case particularly Exhibit D26 (NAOC/NAE/AENR Staff Cooperative Thrift and Credit Society and subtitled “Loan Repayment Authorization” dated 04/08/2010) that the claimant applied for a loan from the defendant’s Staff Cooperative Thrift Society known as NAOC/NAE/AENR Staff Cooperative Thrift and Credit Society (hereafter referred to as “Cooperative Society”) in the sum of N25,000,000.00 (Twenty-Five Million Naira) by virtue of his employment in the defendant’s company and membership of the Cooperative Society. However, that the sum of N24,921,875.00 (Twenty-Four Million, Nine Hundred and Twenty-One Thousand, Eight Hundred and Seventy-Five Naira) was granted to the claimant who at the time of his retirement had not liquidated the entire sum. That the outstanding balance in respect of the loan was the sum of N12,473,625.00 (Twelve Million, Four Hundred and Seventy-Three Thousand, Six Hundred and Twenty-Five Naira) after offsetting against the initial loan amount the claimant’s assets with the Cooperative Society.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that during the trial, the defendant tendered Exhibits D27 and D27A showing the composition and breakdown of the loan and the outstanding balance of N12,473,625.00 (Twelve Million, Four Hundred and Seventy-Three Thousand, Six Hundred and Twenty-Five Naira) as well as Exhibit D26 with which the claimant authorized the defendant to deduct the total outstanding balance in respect of the loan remaining unpaid by him from his last pay/gratuity/retirement benefits/entitlements/other credit due to him from the defendant in the event of his resignation/retirement/transfer/death, etc. Interestingly, that the claimant has unequivocally admitted this indebtedness and even went further to assert that he will pay back the money in due course, referring to paragraph 20 of the claimant’s further witness statement on oath dated 18<sup>th</sup> February 2014, which states –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">It is true that I applied for the staff cooperative loan and I have an outstanding balance on it to be paid and which I will pay. However, the issue of that loan is totally irrelevant to this case as I am not disputing the loan and will pay in due course.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That it is trite that facts admitted require no further proof, referring to <i>Ali v. Albishir</i> [2008] 3 NWLR (Pt. 1073) 94.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant noted that in paragraphs 41 – 43 of the claimant’s supplementary deposition on oath dated 28<sup>th</sup> November 2014, the claimant changed his position to state that the membership of the Thrift Credit Society was voluntary and the transaction between him and the society were private. Thus, his obligations are to the Society and not the defendant. Here, the defendant submitted that there is no basis for the claimant to make this new turn around and deny his obligation to the defendant. That it also seems that the claimant made the depositions in the said paragraphs 41 – 43 without adverting his mind to Exhibit D26 with which the claimant himself unequivocally authorized the defendant to deduct the total outstanding balance in respect of the loan remaining unpaid by him from his last pay/gratuity/retirement benefits/entitlements/other credit due to him from the defendant in the event of his resignation/retirement/transfer/death. That the claimant is bound by his agreement and there is no basis for him to allege that there is no relationship between him and the defendant after having taken advantage of the defendant’s Cooperative fund and undertaken to refund it to the defendant by Exhibit D26. That this kind of attitude has been deprecated by the Nigerian Court in a number of decided cases, referring to <i>Sosan v. H.F.P. Eng. (Nig.) Ltd</i> [2004] 3 NWLR (Pt. 861) 546, where the Court of Appeal held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Apart from the principle of law involved in this case, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that the claimant cannot be allowed to approbate and reprobate by admitting his liability in one breath and denying it in another. The defendant then submitted that the claimant has no basis to deny the said indebtedness, urging the Court to grant this instant claim as sought by the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim a)(iii) – Payment of Cash in Lieu of Status Car<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The counterclaim here is for the sum of N1,897,757.94 (One Million, Eight Hundred and Ninety-Seven Thousand, Seven Hundred and Fifty-Seven Naira, Ninety-Four Kobo), being the unamortized sum of the payment of cash in lieu of status car paid by the defendant to the claimant. To the defendant, clause 15(d) of the conditions of service (Exhibit C2) provides that “Status Cars (not fully amortized)” assigned to a Management staff while in the employment of the company shall be retained by him/her for a period of 6 (six) months from the date of his/her retirement; and if the retired staff elects to keep any of the items not fully amortized after 6 (six) months, he/she shall pay the book value of the items.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the uncontroverted evidence before the Court is that in June 2009 the defendant approved the payment of cash in lieu of status car for the claimant and some other staff of the defendant who were due for status car replacement in March/April 2009. That the claimant was paid the sum of N6,072,825.00 (Six Million, Seventy-Two Thousand, Eight Hundred and Twenty-Five Naira). “Payment of Cash in lieu of Status Car’, internal memorandum dated 20<sup>th</sup> May 2009 from the defendant’s Lagos Office Personnel Manager to the defendant’s General Manager, Corporate Finance and Control, forwarding the bank remittance of the said payment in lieu of status car, schedule of defendant’s staff due for the payment of the said cash in lieu of status car (with the Claimant being number 3) and copy of cheque evidences payment of cash in lieu of status car to the Claimant and other staff of the Defendant contained in Exhibit D17”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that by the conditions of service (Exhibit C2) the claimant was entitled to retain the status car purchased with funds provided by the defendant for only a maximum period of six (6) months after his retirement from the employment of the defendant, that is, up to 31<sup>st</sup> March 2012. That the claimant has however retained the said status car beyond the said period of six (6) months, which elapsed on 31<sup>st</sup> March 2012. That by the claimant’s action, he became liable to pay the defendant the book value of the status car, but which the claimant refused to do, neither did he release the car.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Undoubtedly, that there can be no basis for the claimant to contend as he did in paragraph 18 of his deposition on oath dated 28<sup>th</sup> November 2014 that he is not liable to pay the book value of the status car because what was given to him was cash payment in lieu of status car and not status car as required by the contract of service. That this is because the payment in lieu of the status car does not take away or affect other terms of the conditions of service which relate to status car, such as clause 15(d). That it is trite that where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated, referring to <i>Olaniyan v. University </i><i>of Lagos</i> [1985] NWLR (Pt. 9) 599.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In fact, that the conditions of service does not mandate the defendant to purchase status car for the entitled employees. What the conditions of service require is that the defendant should pay 100% of the market value of the status car. That the payment in lieu of the status car was to allow the claimant enjoy some level of flexibility in the choice of car to purchase. Clause 5(a)(iii) provides a classic illustration of this flexibility. That the law is clear that parties are bound by the terms of their contract and cannot go outside it to shop for terms that will favour them, citing Akinola & ors. v. LAFARGE Cement WAPCO Nigeria Plc (<i>supra</i>). In any event that documents speak for themselves; as such the meaning that can be read into the conditions of service must be the ordinary and grammatical meaning connected with the words used, citing <i>Kanmode & anor v. Dino & ors</i> [2008] LPELR-8405(CA).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that in accordance with clause 15(d) of the conditions of service, the status car (whether on the basis of payment on lieu or outright delivery) is not fully amortized and its face value must be paid if a retired employee decides to retain it. That taking into consideration the amortization from the date of disbursement of the cash in lieu of the status car in the sum of N6,072,825.00 to the expiration of 6 months after the date of the claimant’s voluntary retirement on 30<sup>th</sup> September 2011, the amortized book value of the status car as at 1<sup>st</sup> April 2012 is the sum of N1,897,757.94, which sum is now due from the claimant to the defendant. The defendant referred the Court to the breakdown of the amortized amount as per paragraph 88 of DW’s statement on oath. That the clear evidence before the Court is that money was paid to the claimant by the defendant for the status car and the claimant was meant to release the car purchased with the fund provided after a period of 6 months from the date of retirement, which elapsed on 31<sup>st</sup> March 2012. That to the extent that there is nothing in the conditions of service that allows the claimant to retain possession of the car after 6 months, the claimant is liable to pay the unamortized book value of the status car in the said sum of N1,897,757.94. The defendant then urged the Court to grant this claim to it.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim a)(iv) – Unamortized Value of Household Items</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The counterclaim here is for the sum of N537,527.78 (Five Hundred and Thirty-Seven Thousand, Five Hundred and Twenty-Seven Naira, Seventy-Eight Kobo), being the unamortized value of the household items provided by the defendant to the claimant for the use of the claimant in his personal family house at Ezekiel Evor Road, Peace Estate, Ogidan, off Lekki Epe Express Way, Lekki, Lagos. The defendant referred to clause 15(d) of the conditions of service, which provides that household items not fully amortized assigned to a management staff while in the employment of the company shall be retained by him/her for a period of 6 months from the date of his/her retirement. If the retired staff elects to keep any of the items not fully amortized after 6 months, he/she shall pay the book value of the items.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, from the evidence before the Court, on or about 10<sup>th</sup> May 2011 the defendant procured and provided for the claimant’s use at his personal family house a deep freezer, an Ignis gas/electric cooker, a 2HP Panasonic split unit AC, a 1.5HP Panasonic split unit AC and a West Point double door giant fridge, all at costs indicated at paragraph 207 of the defendant’s final written address. The defendant referred to Exhibit D15 (call-out order dated 28<sup>th</sup> March 2011 and the waybill dated 9<sup>th</sup> May 2011) as evidence of the purchase of these items. That the claimant was entitled by clause 15(d) of Exhibit C2 to retain these items for only a maximum of 6 months after his retirement from the employment of the defendant, which 6 months expired on 31<sup>st</sup> March 2012. That despite this, the claimant refused to return the items to the defendant. That under clause 15(d), the claimant is accordingly to pay to the defendant the book value of the items, which is N537,527.78. That it is trite law that where a contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated, referring to <i>Olaniyan v. University of Lagos</i> (<i>supra</i>). The defendant then urged the Court to enforce the contract in favour of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim a)(v) – Unamortized Payment for the Security Guards in the Personal Family House of the Claimant<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The counterclaim here is for the sum of N3,663,644.25 (Three Million, Six Hundred and Sixty-Three Thousand, Six Hundred and Forty-Four Naira, Twenty-Five Kobo) being the cost incurred by the defendant in respect of the seven (7) security guards in the personal family house of the claimant at Ezekiel Evor Road, Peace Estate, Ogida, off Lekki-Epe Express Way, Lekki, Lagos at the rate of N74,768.25 (Seventy-Four Thousand, Seven Hundred and Sixty-Eight Naira, Twenty-Five Kobo) per security guard from 1<sup>st</sup> April 2012 to 31<sup>st</sup> October 2102. The defendant referred to clause 15(d) of Exhibit C2, which provides that “Security Guards” assigned to a Management staff while in the employment of the company shall be retained by him/her for a period of 6 (six) months from the date of his/her retirement. That the defendant has shown in evidence before this Court that it provided seven (7) security guards to the claimant’s personal family house at Ezekiel Evor Road, Peace Estate, Ogidan, Off Lekki Epe Express Way, Lekki, Lagos (“Family House”). That the seven (7) security guards at the personal family house of the claimant were obtained by the defendant from Villeworth Security Services Nigeria Limited at a cost of N74,768.25 (Seventy-Four Thousand, Seven Hundred and Sixty-Eight Naira, Twenty-Five Kobo) per security guard per month, which amounts to a total cost of N523,377.75 (Five Hundred and Twenty-Three Thousand, Three Hundred and Seventy-Seven Naira, Seventy-Five Kobo) per month for the seven (7) Security guards.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, by clause 15(d) of Exhibit C2, the claimant was entitled to retain the said seven (7) security guards provided by the defendant for only a maximum period of six (6) months after his retirement from the employment of the defendant, that is, up to 31<sup>st</sup> March 2012. However, that the claimant continued to wrongfully retain for seven (7) months the said seven (7) security guards at the expense of the defendant. That evidence of the invoices issued to the defendant by the security guards provider, Exhibit D16 shows that from 1<sup>st</sup> April 2012 the defendant continued to pay a monthly sum of N523,377.75 (Five Hundred and Twenty-Three Thousand, Three Hundred and Seventy-Seven Naira, Seventy-Five Kobo) for the seven (7) security guards that were wrongfully retained by the claimant claim, which payment continued until 31<sup>st</sup> October 2012, thereby accumulating a total sum of N3,663,644.25 (Three Million, Six Hundred and Sixty-Three Thousand, Six Hundred and Forty-Four Naira, Twenty-Five Kobo).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in order to avoid the liability under this head of claim, the claimant inconceivably maintains that he was not a party to the contract for supply of private guards and all the figures indicated and being claimed by the defendant were arrived at without any input from him. To the defendant, this is not tenable because there is no provision in the conditions of service requiring the claimant to be a party to the contract of the supply of the guards or have input in it. That to the extent that the claimant has not in any way denied the fact that the defendant provided the security guards and that he retained them for his use beyond the six months period allowed by the conditions of service, the claimant is liable to pay his obligation under this head of claim. That the law is settled that facts not disputed, denied or controverted are deemed as admitted, citing <i>Ajomale v. Yaduat (No. 2)</i> [2003] FWLR (Pt. 1821) 913 at 1925 and <i>Ogar v. James</i> [2001] 10 NWLR (Pt. 722) 621 at 639. The defendant then urged the Court to discountenance the argument of the claimant and grant this counterclaim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaims a)(vi) and c) - Demand for the Pro-Rated Monthly Rent of the Rented and Furnished House for the Claimant’s Use as Official Residence/Order of Mandatory Injunction Compelling Him to Deliver up Possession<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendant treated these two counterclaims together. Counterclaim a)(vi) is for the sum of N1,041,666.70 (One Million, Forty-One Thousand, Six Hundred and Sixty-Six Naira, Seventy Kobo) monthly, being the pro-rated monthly rent being paid by the defendant on the house known as Gulf of Guinea Lodge located at No. 8 Sakete Close, off Cairo Street, Wuse 2, Abuja, from 1<sup>st</sup> April 2012 until delivery of possession of same, together with all the furniture and other household items therein by the claimant to the defendant. Counterclaim c) is for an order of mandatory injunction compelling the claimant to deliver up to the defendant possession of the official residence (a 5-bedroom house known as Gulf of Guinea Lodge) located at No. 8 Sakete Close, off Cairo Street, Wuse 2 Abuja, together with all the furniture and other household items therein provided by the defendant. In regards to the two counterclaims, the defendant submitted that it is entitled to both claims for the reasons given hereunder.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That at paragraphs 66 – 70 of the defendant’s witness deposition on oath, the defendant had led evidence showing that clause 15(d) of Exhibit C2 provides that “Rented and occupied Apartments”, “Household Items (not fully amortized)” assigned to a Management staff while in the employment of the company shall be retained by him/her for a period of 6 (six) months from the date of his/her retirement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the defendant showed during trial that on 13<sup>th</sup> April 2011 the defendant rented for a period of 4 years certain properties situate at No. 8 Sakete Close, off Cairo Street, Wuse 2, Abuja, comprising 2 (two) units of 5-bedroom houses referred to as Nelson Mandela Lodge and Gulf of Guinea Lodge respectively. With particular reference to the Gulf of Guinea Lodge given to the claimant for official use, the defendant paid a net yearly rent of N12,500,000.00 (Twelve Million, Five Hundred Thousand Naira) for four (4) years in advance, thus bringing the total net rent paid in advance by the defendant for that particular house for the period of four (4) years to the sum of N50,000,000.00 (Fifty Million Naira). That evidence of this transaction is contained in Exhibit D13 (the Tenancy Agreement/Letter of Award dated 13the April 2011 between the Landlord, Mr. Abiodun O. Babatunde, and the defendant company).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that upon renting the said Gulf of Guinea Lodge, the defendant furnished the house. The items of furniture installed at the house were procured by the defendant at a total cost of US$42,535.39 (Forty-Two Thousand, Five Hundred and Thirty-Five United States Dollars, Thirty-Nine Cents). That the defendant also procured and installed in the said house other various household items including Deep Freezer, Dryer, Washing Machine, Microwave & Grill, Fridge, 6 Burner Electric/Gas Cooker, 12.5 kg Gas Cylinder with 3m Long hose and regulator, Household filter (Prestige) with candles, Ironing Board, Pressing Iron (Steam Philips), Portable Emergency Light (Eurosonic), Multi Socket Adaptor, Multi Socket Extension and Solatek Fridge AVS Protector, all with a total value of N734,900.00 (Seven Hundred and Thirty-Four Thousand, Nine Hundred Naira), referring to Exhibit D14, the receipts evidencing the purchases made as well as the schedules of the furnishing and its typical household items installed by the defendant in respect of the said house. That pursuant to Exhibit C2, the claimant was entitled to continue to occupy the said house for only a maximum period of six (6) months after his retirement from the defendant’s employment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in the defendant’s witness deposition on oath, the defendant has established that the claimant was retired from the defendant’s employment on 30<sup>th</sup> September 2011, and thus the said six (6) months period expired on 31<sup>st</sup> March 2012. However, the claimant has refused to vacate and deliver up possession of the 5-bedroom house known as the Gulf of Guinea Lodge situate at No. 8 Sakete Close, off Cairo Street, Wuse 2, Abuja (“official residence”) and the furniture and the household items therein to the defendant. That it has been established without dispute during trial in this case that the rent of N50,000,000 (Fifty Million Naira) paid in advance by the defendant in respect of the said house is still running at a pro-rated monthly rent of N1,041,666.70 (One Million, Forty-One Thousand, Six Hundred and Sixty-Six Naira, Seventy Kobo) and will continue to run until the date the claimant delivers up possession of the house to the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in support of the defendant’s position, the claimant admitted during cross-examination that he is still in possession of the house. In his words –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yes, I am currently occupying a house known as Gulf of Guinea Lodge at No. 8 Sakete Close, off Cairo Street, Wuse II, Abuja.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I turned 60 years on August 24, 2015. Yes, the said Wuse II House is my official residency given to me by the defendant. Yes, I am staying in the house till today because I believe I am still a staff of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That it is clear from this evidence of the claimant himself that the defendant indeed provided the claimant with the house and the claimant has refused to yield up possession of the house despite the fact that he had been retired from the defendant’s employment. The defendant then submitted that the claimant’s excuse for remaining in the accommodation to wit: that he is still in the employment of the defendant is not tenable in the face of the overwhelming evidence (“Exhibit D6, letter of voluntary retirement dated 28<sup>th</sup> September 2016”) showing that he had been retired and the relationship between him and the defendant had been severed. Interestingly, that the claimant did not show in his pleadings or by any means during the trial that he is still acting for the defendant in any capacity as an employee of the defendant so as to give evidential support to his assertion.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that assuming without conceding that the contention of the claimant that he is an employee is even taken to be true, that at the time he gave the evidence he had attained the mandatory age of retirement of 60 years on 24<sup>th</sup> August 2015, but has continued to retain possession of the official residence at the defendant’s expense. That for the avoidance of doubt, the basis upon which the claimant claims continued entitlement to retain possession of the official residence until his attainment of the mandatory age of retirement of 60 years and even beyond is untenable. However, that it is clear that following his attainment of the mandatory age of retirement of 60 years on 24<sup>th</sup> August 2015 and the expiration of the six months grace period stipulated in the Handbook for Nigerian Managers’ Conditions of Service (“conditions of service”), which the claimant acknowledged as governing his employment, the claimant cannot continue to retain possession of the official residence from 29<sup>th</sup> February 2016, even on the basis of the case that he has himself articulated at paragraph 6 of his further deposition on oath, to wit: “My retirement was not voluntary as I intended to work for the Defendant until I attained the mandatory retirement age of 60 years”. To the defendant, by the claimant’s own admission, he is not entitled to continue to occupy the official residence of the defendant. That the established principle of law is well founded and settled that facts admitted need no proof, referring to <i>Narinder Trust Ltd v. N.I.C.M.B. Ltd</i> [2001] FWLR 1546 at 1558, <i>Nwankwo v. Nkwankwo</i> [1995] 5 NWLR (Pt. 894) 158 and <i>Olufusoye </i><i>& ors v. Olorunfemi</i> [1989] 1 NWLR (Pt. 95) 26.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That for the purpose of avoiding liability, the claimant maintains that he was not consulted by the defendant in respect of the quantum of the rent payable by the defendant for the official residence. On this, the defendant submitted that there is no provision under the conditions of service that requires the defendant to consult the claimant or any staff before arriving at a figure or quantum before renting an official residence. That in <i>Jadesimi v. Okotie-Eboh; In re Lessey</i> [1989] 4 NWLR (Pt.113) 125 the Court of Appeal held that a party cannot be heard to approbate or reprobate; he will not be allowed to base his action or defence, whether by pleadings or affidavit evidence, on a set of facts and then depart from the set of facts on which issues had been joined to meet the case of the other side.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that assuming without conceding that by the conditions of service, the defendant is not allowed to determine the quantum of the official residence without consulting the claimant, that the claimant cannot approbate and reprobate by insisting that the official residence rented by the defendant meets his status and at the same time contend that he is not liable to the payment for the official residence because the quantum of the rent was determined by the defendant without consulting him. In any event, that the claimant has not contended or proven that the quantum of the rent negotiated by the defendant is excessive or unconscionable so as to warrant a cancellation or review of his obligation in this regard. Indeed, that in the claimant’s own claims, he claimed the sum of N60,000,000.00 for 4 years at N15,000,000.00 per annum for official residence (company rented house in Abuja), referring to paragraph 53(a) of subsection captioned Benefits-in-kind for the remaining 4 years. This is more than the sum of N50,000,000.00 for 4 years claimed by the defendant. Pro-rated monthly, that the claimant’s sum amounts to N1,250,000.00 which is more than the pro-rated monthly rent of N1,041,666.70 which the defendant is claiming. Thus, the claimant cannot complain that the amount claimed by the defendant is unreasonable, whether he was consulted or not.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the extent that the claimant has shown to the Court during trial that he is unwilling to deliver up possession of the official residence at the due date and the defendant having shown by Exhibits D13 and D14 that the defendant rented the official residence and the rent continues to run due to the claimant’s refusal to yield up possession of the premises despite his retirement from the defendant’s employment, that the claimant is liable to pay to the defendant the sum of N1,041,666.70 (One Million, Forty-One Thousand, Six Hundred and Sixty-Six Naira, Seventy Kobo) on monthly basis from 1<sup>st</sup> April 2012 up to the time the claimant will yield up possession of the official residence. The defendant also submitted that the entire facts, circumstances and evidence in this case do not support the claimant’s continued stay in the official residence as his relationship with the defendant had terminated long ago, urging the Court to make an order compelling the claimant to pay the monthly rent of the official residence and also to deliver up possession to the defendant together with the appurtenances therein.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim d) – Unamortized Claim for Family Car Advanced to the Claimant</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Counterclaim d) is for an order of mandatory injunction compelling the claimant to deliver up possession of the Toyota Corolla 1.8 family car with registration No. HU 445 EKY to the defendant. The defendant referred the Court to paragraphs 90 – 95 the defendant’s witness deposition on oath (for the facts that explain the liability of the claimant in respect of this counterclaim) as well as clause 15(d) of Exhibit C2, which provides that “Family Assigned Cars (not fully amortized)” assigned to a Management staff while in the employment of the company shall be retained by him/her for a period of 6 (six) months from the date of his/her retirement. That in line with Exhibit C2 the defendant leased a brand new Toyota Corolla 1.8ltr with registration number HU 445 EKY together with a driver at a monthly rate of US$1,365.52 (One Thousand, Three Hundred and Sixty-Five United States Dollars, Fifty-Two Cents) payable in the prevailing Naira equivalent for his use as a family car while in the employment of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That contrary to the unsupported assertion of the claimant at paragraph 18 of his further statement on oath dated 28<sup>th</sup> November 2014 where he stated that no car was given to him for which he is liable to pay the book value, there is evidence to show that the claimant was given a family car that was leased from a car leasing company, Directed Services Limited, alongside three (3) other brand new Toyota Corolla 1.81tr cars for use by other staff of the defendant as family cars at a total sum of US$5,462.08 (Five Thousand, Four Hundred and Sixty-Two United States Dollars, Eight Cents) for the four (4) cars and drivers per month. That Exhibit D21 presents evidence of the invoices and payment advice between the defendant and the Directed Services Limited in respect of the family car loan given to the claimant which stands at US$1,365.52 (One Thousand Three Hundred and Sixty-Five United States Dollars, Fifty-Two Cents) per month.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the claimant had also disputed his indebtedness to the defendant in the sum of US$1,365.52 per month, the basis of the claimants contention, stated at paragraph 19 of his deposition on oath, being that the said leased car was given to him contrary to the conditions of service in September 2009 for a period of three (3) years upon the expiration of which same was to be replaced. That it is trite that where the words of a contract are clear and unambiguous, they must be given their ordinary and grammatical meaning. Parties are not allowed to import terms that are not contained in a contract, referring to <i>Kanmode </i><i>& anor v. Dino & ors</i> (<i>supra</i>). That it follows from the above principle of law that where there are conflicting views about the content of a document, the Court has the power to interpret such document in the light of its ordinary meaning. That clearly, clauses 5 of Exhibit C2 provide that: “In addition, Deputy Division Mangers, Division Managers, General Managers and the Deputy Managing Director are given Standard Car of 1.8lt as a Family Car”. That to the extent that there is nowhere in clause 5 that says that the defendant cannot lease the car to be given to the claimant as Family Car and also to the extent that there is no clause that says that the family car to be given to the claimant or any staff in his category must be purchased, the claimant’s contention that the defendant cannot recover from him any money paid on the leased vehicle must fail.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, one other erroneous contention which the claimant had expressed in paragraph 20 of his deposition on oath is that the family car was due to be replaced after a period of 3 years. That the provision of Exhibit C2 is clear and unambiguous; the relevant portion of clause 5(a) providing that “all the cars have an amortization period of Four Years”. That it is, therefore, inconceivable that the claimant could make a distinction between <i>purchase</i> and <i>lease</i> of the family car as the basis to escape liability that has accrued as a result of his refusal to return the family car after his retirement from the defendant’s employment. That what is important and in line with Exhibit C2 is the need for the defendant to provide the claimant with a brand new car for an amortized period of 4 years, and this the defendant did.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the submission of the defendant that the accurate factual position of this case is that despite the claimant’s retirement since 30<sup>th</sup> September 2011, and the expiration on 31<sup>st</sup> March 2012 of the six (6) months period in which the claimant is entitled to retain the use and enjoyment of the family car in accordance with clause 15(d) of the conditions of service, the claimant has wrongfully retained the Toyota Corolla 1.81tr family status car, thereby making the defendant continue to pay the lease charges for the said car and the driver at the monthly rate of US$1,365.52 (One Thousand, Three Hundred and Sixty-Five United States Dollars, Fifty-Two Cents) in the Naira equivalent sum of N222,525.14 (Two Hundred and Twenty-Two Thousand, Five Hundred and Twenty-Five Naira, Fourteen Kobo) until the date that the claimant returns the said car to the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that assuming without conceding that the defendant ought to have purchased the vehicle and not lease it, that the claimant is still not absolved of his liability to pay the unamortized sum in respect of the family car because he cannot turn around after taking advantage of the leased car and complain that it was not in line with his contract of employment. That it is settled that a party cannot take advantage of an irregularity which he has acquiesced to, referring to <i>Noibi v. Fikolati</i> [1987] NWLR (Pt. 52) 619.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Another leg of the claimant’s contention that he is not liable to pay the book value of the family car is that by the conditions of service, the period for the use of the car should have expired and same ought to have been replaced. Exhibit C2, which regulates the family car benefit, expressly states at clause 15(d) that “Family Assigned Cars (not fully amortized) ... if the retired staff elects to keep any of the items not fully amortized after 6 (six) months, he shall be pay the book value of the item”. To the defendant, at the time the claimant retired from the defendant’s employment and even after the period of 6 months after his retirement on 31<sup>st</sup> March 2012, the family car had not reached the 4 year limit of the amortization period. That to the extent that the family car given to the claimant was still validly within the amortization period of 4 years at the time the claimant retired and to the extent that the claimant held on to the family car beyond 6 months after his retirement, he is liable to pay the book value of the item.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the claimant’s agitation at paragraph 18 of his deposition on oath dated 24<sup>th</sup> November 2014 is without any reason, is irrelevant and ought to be discountenanced. That the claimant has no right to pick and choose the clauses in the contract of service that will bind him or otherwise. That the Court has the power to look at Exhibit C2 holistically in other to determine the intention and agreement of the parties, citing <i>AG Benue State v. Umar</i> [2008] 1 NWLR (Pt. 1068) 311 at 345. That in order to avoid liability, the claimant contended that the decision to pay dollars for the family car was entirely the decision of the defendant and that the decision was made without his input. To this, the defendant submitted that there is no provision under the conditions of service that requires the defendant to consult the claimant or any staff before arriving at an actual rate to be paid for the family car and in which currency. Besides, that the dollar amount only serves as a negotiation figure and has always been paid by the defendant in the Naira equivalent, referring to the payment advices comprised as part of Exhibit D21. Indeed, that the claimant admitted that the provision of the family car by the defendant was in keeping with his status as an employee of the defendant when he said: “…the Toyota car provided to his family was in keeping with his status as an employee of the counter-claimant”. The defendant then referred to <i>Jadesimi v. Okotie-Eboh. In re Lesser</i> [1989] 4 NWLR (Pt. 113) 125.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Yet again, that assuming without conceding that by the conditions of service the defendant is not allowed to procure a vehicle in dollars without the consent of the claimant, the claimant cannot approbate and reprobate by insisting that the family car procured by the defendant meets his status and at the same time contend that he is not liable to the payment for the unamortized value of the car because the figures were arrived at without his input. In any event, that the claimant has not contended or proven that the amount with which the defendant procured the family car is excessive or unconscionable as to warrant a cancellation or review of his obligation in this regard. The defendant then urged the Court to discountenance the argument of the claimant that he is not liable to the book value of the family car and grant the defendant’s claim for an order mandating the claimant to pay the sum of US$1,365.52 (One Thousand, Three Hundred and Sixty-Five United States Dollars, Fifty-Two Cents) from 1<sup>st</sup> April until the delivery up of possession of the said car to the defendant as well as an order of mandatory injunction compelling the claimant to deliver up possession of the Toyota Corolla 1.8ltr with registration number HU 445 EKY.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim e) – Exemplary Damages</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Counterclaim e) is for exemplary damages in the sum of N100,000,000.00 (One Hundred Million Naira). The defendant referred to <i>Odiba v. Muemue</i> [1999] 10 NWLR (Pt. 622) 174 SC, where it was held that exemplary damages may be awarded only in cases of oppressive, arbitrary or unconstitutional acts by government servants; or where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; or where expressly authorised by statute. To the defendant, the conduct of the claimant in this case (as defendant to the counterclaim) falls into the second category. It is the submission of the defendant that from a holistic view of the facts and circumstances of this case, the claimant’s conduct is blameworthy as he seeks to unjustly enrich himself by filing a lawsuit against the defendant to make baseless claims despite the fact that he had collected the sum of N14,277,714.00 (Fourteen Million, Two Hundred and Seventy-Seven Thousand, Seven Hundred and Fourteen Naira only) as six (6) months’ salary in lieu of notice and the sum of N89,235,712.50 (Eighty-Nine Million, Two Hundred and Thirty-Five Thousand, Seven Hundred and Twelve Naira, Fifty Kobo) as voluntary retirement gratuity, which is in excess of his gratuity entitlement, and has also been collecting monthly pension in the sum of N1,204,682.00 (One Million, Two Hundred and Four Thousand, Six Hundred and Eighty-Two Naira) from the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Indeed, that the claimant has, by his conduct, deliberately and arbitrarily deprived the defendant from the use of its official residence, the 5-bedroom duplex known as Gulf of Guinea Lodge, No. 8 Sakete Close, off Cairo Street, Wuse 2, Abuja, with all the furniture and other household items therein. Furthermore, that the claimant has, by his conduct, deliberately and arbitrarily deprived the defendant from the use of the family car, Toyota Corolla 1.8ltr with registration No. HU 445 EKY provided by the defendant to the claimant, in respect of which the defendant is incurring monthly lease charge in the sum of US$ 1,365.52 (One Thousand, Three Hundred and Sixty-Five United States Dollars, Fifty-Two Cents) (or Nigerian Naira equivalent using the average (central) buying and selling exchange rates as provided by the Central Bank of Nigeria for the last day of each month).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That due to this conduct, the defendant has been unduly made to expend resources, time and energy to defend the claimant’s lawsuit and also to prosecute this counterclaim to recover the defendant’s items and monies due from the claimant. Premised on the above, the defendant urged the Court to dismiss the claimant’s claims and grant all the claims sought in the defendant’s counterclaim filed in respect of this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Counterclaim f) – Award of Interest on the Judgment Sum<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Counterclaim f) is for interest on the various sums stated in the preceding paragraphs at the rate of 21% from 1<sup>st</sup> April 2012 until judgment and thereafter at the rate of 10% until final payment of the entire judgment sum. Here, the defendant referred to <i>Ekwunife v. Wayne</i> [1989] 5 NWLR (Pt. 122) 445 SC, which enunciated the principles that govern the award of interest as where it is claimed as a right; and where there is a power conferred to do so in exercise of the Court’s discretion. Also that where a claim is for the return of money, judgment should be accompanied by the award of interest for the period for which it is claimed. Even where the interest is not claimed specifically in the writ of summons and statement of claim, the Court can award interest as a consequential order. Also referred to is <i>Texaco Overseas (Nig) Unltd v. Pedmar (Nig.) Ltd</i> [2002] 13 NWLR (Pt. 785) 526 at 547, where it was held that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, apart from the claims contained in paragraphs 110(d) and (e) of the defendant’s counterclaim, every other claim sought in the defendant’s counterclaim is money judgment which is long overdue and remain unpaid by the claimant. That the defendant established, with factual particulars and evidence, the details of how the claimant has been indebted to the defendant in respect of the different claims. The defendant appreciated that the award of interest in the circumstance is based on the Court’s discretion, the exercise of which must be judicial and judicious and then submitted that this case is one that is deserving of a judicious exercise of the Court’s discretion in awarding interest on the judgment sums sought by the defendant. That this is more so as it is manifestly clear that the claimant has been depriving the defendant of its claims deliberately and in bad faith. The defendant then urged the Court to award interest in respect of the various sums sought by the defendant in paragraph 110(a)(i) – (v), (b), (c), (e) and (f) at the rate of 21% from 1<sup>st</sup> April 2012 until judgment is delivered and thereafter at the rate of 10% until final payment of the entire judgment sum.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the defendant urged the Court to enter judgment in its favour by holding that the claimant did not prove his case; and by granting it the counterclaims it seeks.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANT’S SUBMISSIONS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">In reaction to the defendant’s submissions, the claimant framed three issues for the determination of this Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l34 level1 lfo27"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant’s retirement by the defendant was a case of voluntary retirement.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l34 level1 lfo27"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->If the answer to issue 1) is in the negative, whether the claimant is entitled to the reliefs sought.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l34 level1 lfo27"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the defendant on its pleadings and evidence is entitled to succeed in its counterclaim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Claimant’s Issue 1)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Regarding this issue, the claimant submitted that it must be answered in the negative. That the claimant has in his pleadings and evidence before this Court shown that his so-called voluntary retirement was indeed foisted on him by the defendant against his will, referring to the claimant’s testimony at paragraphs 9 to 13 of his statement on oath. The claimant then referred to the <i>Black’s Law Dictionary</i>, 8<sup>th</sup> Edition, which defines “Voluntary” to be an act “done by design or intention voluntary act”. That the same edition defines “Retirement” to be the “voluntary termination of one’s own employment or career”. To the claimant, the evidence before this Court is clear that the retirement of the claimant was carried out unilaterally by the defendant. That the claimant was not even given any hint of his impending voluntary retirement. Asked if the defendant even consulted with the claimant before taking the decision to retire the claimant, Naaman Feyi Dienye, testifying for the defendant as DW, confirmed under cross-examination that it was the defendant that unilaterally retired the claimant and that the decision was taken by the defendant without prior consultation of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that it is trite that only an employee can volunteer to retire: hence the term “Voluntary Retirement”. That where an employer solely and unilaterally takes the decision to retire an employee, that represents compulsory retirement; an employer cannot voluntarily retire an employee. That unless an employee volunteers to retire, there can be no voluntary retirement, urging the Court so to hold. That learned senior counsel to the defendant went to great lengths in his final address filed on behalf of the defendant to say that the unilateral retirement of the claimant by the defendant was voluntary in that it was so provided for under clause 15(a) of the conditions of service governing the relationship between the claimant and the defendant, which was admitted as Exhibit C2 and also as Exhibit D5. That learned senior counsel maintained further that the unilateral action of the defendant in retiring the claimant was therein described as “Voluntary Retirement”. To the claimant, this contention is grossly mistaken for two major reasons.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">First, while it is indeed the law that parties are by freedom of contract free to make any contract for themselves within the limits of enforceability, and the Courts will readily enforce such contract whilst refraining from writing a new contract for the parties, yet it is also the law that in giving effect to the terms of a contract, a Court will necessarily endeavour to ascertain the intention of the parties, referring to <i>Festus Daodu v. United Bank for Africa Plc</i> [2004] 9 NWLR (Pt. 878) 276 CA, which urge Courts to interpret contracts in the interest of justice and <i>Artra Industries (Nigeria) Limited v. Nigerian Bank for Commerce and Industry</i> [1998] 4 NWLR (Pt. 546) 357 SC, where Courts were enjoined in interpreting agreements to give due regard to the entire document so as to find out the correct meaning in relation to the agreement. The claimant then submitted that this Court, in giving effect to Exhibit C2/D5, is enjoined by these judicial authorities, to “find out the correct meaning” and “interpret them in the interest of justice”. That when this is done, the flaw inherent in the submissions and contention of learned senior counsel immediately become self-evident.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Secondly, that in making his submissions learned senior counsel has contrived to place an unduly high premium on form over substance. This is so in that while the heading (form) of clause 15(a) of Exhibit C2/D5 does indeed read “Voluntary Retirement” and the body, “Decision: Staff or Company”, the truth (substance) of the matter is that in reality it is only a member of staff that can voluntarily retire. That where the retirement decision is taken by the company, the case becomes one of compulsory retirement and not voluntary retirement. That in the oft-celebrated case of <i>Parkin v. Thorold</i> (1852) 16 Beav 59; (1852) 51 ER 698, Lord Romilly, MR laid down the guiding principle which subsists until the present time in terms that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Court of Equity makes a distinction in all cases between that which is a matter form and that which is a matter of substance and if it finds that by insisting on the form the substance will be defeated, it holds it inequitable to allow a person insist on such form and thereby defeat the substance.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Referring to sections 13 and 15 of the NIC Act 2006, the claimant submitted that this Court is a court of law as well as a court of equity but statutorily enjoined to apply the rules of equity over those of the common law wherever (as with the instant submissions and contention of learned senior counsel) there is a conflict or variance between both rules. That the maxim of equity is that “equity looks to the substance rather than the form”. The claimant also submitted that when this Court looks to the substance (as opposed to the form) of clause 15(a) of Exhibit C2/D5<i>, </i>it immediately becomes clear that the voluntary retirement mentioned in the said clause can only be voluntary retirement when the decision is taken by the affected member of staff to voluntarily retire. It is the further submission of the claimant that where, as in the instant case, the retirement decision is<i> </i>solely and unilaterally taken by the company and the affected member of staff has no say whatsoever in the matter, then the substance (as opposed to the form) is that it is the company that has <i>compulsorily </i>retired the affected member of staff. In urging this Court so to hold, the claimant referred to paragraph 21 of DW’s statement on oath, which states –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I know that the Claimant was retired along with twenty-three (23) other employees. I rely on a copy of the List of employees retired alongside the Claimant contained at page 43 of the Defendant’s Bundle of Documents. I know that the document referred to herein is a list of employees retired alongside the Claimant…”<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also, that when asked during cross-examination whether or not the defendant consulted with the claimant before the “voluntary retirement” decision in respect of the claimant was taken by the defendant, DW answered in the negative and confirmed that the claimant was never consulted by the defendant on the matter.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant then, while clause 15(a) of Exhibit C2/D5 may indeed tend to show that the decision on the voluntary retirement of a member of staff may be taken by either the staff or the company, a correct inference of the intention of the parties is that clause 15(a) was never meant to upturn the laws of English grammar nor indeed do violence to language by renaming what is to all intents and purposes a compulsory retirement and dressing same in the false robes of “voluntary retirement”, urging the Court so to hold and resolve this issue in favour of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Claimant’s issue 2)<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On this issue i.e. if the answer to issue 1) is in the negative, whether the claimant is entitled to the reliefs sought, the claimant answered in the affirmative. To the claimant, his arguments on issue 1) have majorly been in respect of his first relief (relief 1) as contained in the complaint, statement of facts and witness statement on oath. That his arguments on issue 2) will, therefore, centre on his seven (7) other reliefs (reliefs 2 – 8) as filed before this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><i>Claimant’s relief 2<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify">The claimant’s relief 2 is for “a declaration that the retirement of the claimant by the defendant on the 28<sup>th</sup> September, 2011 without notice and without compliance with the usual customary practice and procedure of the defendant is contrary to good and international labour practice”. In support of this relief, the claimant pleaded facts in paragraphs 36 and 37 of his statement of facts and therein made specific references to actions representing international best practices in labour and industrial relations. The claimant also specifically pleaded requirements of the International Labour Organisation (ILO) Conventions and Recommendations on Retirement. To amplify the pleaded facts, the claimant testified in-chief at paragraphs 36 and 37 of his statement on oath and therein expressly stated that the actions of the defendant in retiring the claimant “conflicts with what is obtainable in other parts of the world and industrial relations”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The learned senior counsel had described the foregoing pleadings and evidence as “lame” (in paragraph 68 of the defendant’s final address). To the claimant then, the burden placed on the claimant as well as the duties of this Court by the rules of procedure applicable to the instant case are neither obtuse nor recondite. That the onus of proof is clear: he who asserts must prove, referring to <i>Gbafe v. Gbafe</i> [1996] 6 NWLR (Pt. 455) 417 SC. That in compliance with and obedience to the requirements of the law in this regard, the claimant has made his assertions in his pleadings and offered evidence in his testimony before this Court. That the rule is also that once the claimant who asserts has led evidence in support of his assertion, the burden of rebuttal shifts to the defendant: <i>Okubule v. Oyagbola</i> [1990] 4 NWLR (Pt. 147) 723. Accordingly, the burden is on the defendant to adduce its evidence in rebuttal. That whether the pleadings, or indeed the evidence of the claimant in this regard is “lame”, is for this Court to determine after considering the case as made out by both parties. That it is instructive that learned senior counsel in describing the pleadings and evidence in this regard as lame is not urging this Court to reach such a conclusion, but has gone ahead to reach the conclusion himself. The claimant continued that it is also the position of the law that a defendant must specifically deny averments not accepted or admitted, referring to <i>Olatunji v. Adisa</i> [1995] 2 NWLR (Pt. 376) 131.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"> <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">As required by the rules of practice and procedure, that the defendant has indeed offered its traverse of the claimant’s pleadings on the question of international best practices in labour and industrial relations. That in paragraph 35 of its statement of defence, the defendant referred to the averments by the claimant as: “Falsehoods and afterthoughts by the claimant concocted for the purpose of this case”. The defendant then proceeded to give its rationale for so concluding and describing the claimant’s averments to be by reason of the fact that: “If indeed they existed, the claimant would have over the years got them incorporated into the defendant’s conditions of service”. That the testimony in-chief of DW at paragraphs 39 and 40 of his statement on oath are the <i>ipsissima verba </i>of the aforesaid relevant pleadings of the defendant. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that, on his averments at paragraph 37 of the statement of facts on the ILO Conventions and Recommendations on Retirement, the defendant is content in its traverse at paragraph 36 of its statement of defence to describe the Recommendations as “mere recommendations”. The defendant then goes on to repeat that the Recommendations “are not incorporated into the defendant’s conditions of service”. Here as well, that the evidence of DW at paragraph 40 of his statement on oath is the <i>ipsissima verba </i>of the traverse offered by the defendant in its statement of defence. To the claimant, it is instructive that the sole reason proffered by the defendant for describing the pleadings and evidence of the claimant on international best practices in labour and industrial relations as “falsehoods and afterthoughts concocted for the purpose of this case” is that the claimant was unable, during his years in the defendant’s employment to get “them incorporated into the defendant’s conditions of service. That this contention of the defendant is not in keeping with the spirit and the letter of section 254C(1)(i) and (h) of the 1999 Constitution (as amended) as well as section 7(6) of the NIC Act 2006. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Firstly, it is the submission of the claimant that the spirit and letter of the foregoing constitutional and statutory provisions, as well as the intendment of same, is that they operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. Both provisions combine to establish standards to be aspired to. If they are “incorporated into the defendant’s conditions of service” as maintained by the defendant and as most eloquently submitted by learned senior counsel, then they would no longer be “international best practice” but rather the practice to which the parties have mutually agreed to be bound, urging the Court so to hold. That the claimant is fortified in this submission by the express provisions of section 7(6) of the NIC Act 2006 which provides in part that: “...what amounts to good or international best practice in labour or industrial relations shall be a question of fact.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, this express provision of section 7(6) of the NIC Act 2006 exposes the inadequacies inherent in the positions taken by the defendant and learned senior counsel. That by unequivocally declaring what amounts to good or international best practice in labour or industrial relations to be questions of fact, the Act is necessarily implying that such practices are not already codified in the conditions of service and would thus require to be pleaded and proved by the party alleging their existence.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Secondly, that international best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer. The actions (or inaction) of the employee are seldom, if ever, the subject of consideration in this regard. The claimant then submitted that it is disingenuous for the defendant to maintain that the inability of the claimant to get the relevant international best practices incorporated into the defendant’s conditions of service is tantamount to the non-existence of those international best practices.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That as the question of what constitutes international best practices has expressly been made one of fact, this Court is expected to make a specific finding of fact in this regard. That in coming to its decision, this Court must necessarily have regard to the preponderance of evidence, referring to <i>Onowhosa v. Odiuzou</i> [1999] 1 NWLR (Pt. 586) 173. That the principle, on civil cases being decided on preponderance of evidence and balance of probabilities, was enunciated by the Supreme Court in <i>Odofin v. Mogaji</i> [1978] 2 NSCC 275 at 277 and has been applied thereafter unerringly in all cases such as <i>Wachukwu v. Owunwanne</i> [2011] 14 NWLR (Pt. 1266) 1.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Now, the claimant’s evidence on the existence of international best practice when it comes to the matter of retirement, as contained in his testimony in-chief at paragraphs 36 and 37 of the statement on oath as well as paragraph 8 of the claimant’s further statement on oath is already before this Court. That this is the evidence that this Court is required to place into one side of the imaginary scale. Into the other side of the scale is to go the evidence of DW that the claimant’s evidence represents “falsehoods”, “afterthoughts” and “mere recommendations”. The claimant then submitted that when this Court weighs the evidence of both parties, it should find that the evidence of the defendant is indeed no evidence as all that the DW has done is to describe and explain the evidence of the claimant while offering no evidence of his own, urging the Court to accept his evidence on this point and grant his claim as contained in his relief 2.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><i>Claimant’s relief 3<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify">The claimant’s relief 3 is for “a declaration that the defendant is bound to follow its customary practice and procedure relating to involuntary retirement by paying the claimant’s retirement benefits under the following heads: 6 months payment in lieu of notice; redundancy payment; Special <i>ex-gratia</i> payment; Benefit-in-kind and other normal allowances or benefits”. In praying this Court to grant this relief, the claimant led evidence in paragraphs 21 to 33 of his statement on oath under the specific heading of “The Defendant’s Customary Practice”. The claimant therein outlined what he maintains is the customary practice and procedure of the defendant. The rebuttal evidence of DW is contained in the main at paragraphs 30 to 37 of the defendant’s witness statement on oath wherein DW basically denies the existence of any such custom or practice as alleged by the claimant. To the claimant, it is, however, instructive to note that whereas the specific relief being sought by the claimant employs the term “involuntary retirement”, the entire evidence of DW repeatedly refers to “voluntary retirement”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Section 16(2) of the Evidence Act 2011 places the burden of establishing the subject customary practice and procedure on the claimant. Section 18(2) allows the evidence of those “who would be likely to know of its existence”. That the claimant in paragraph 7 of his statement on oath and the defendant in paragraphs 7, 10, 32 and 39 of the statement on oath of DW are <i>ad idem </i>that the claimant is such a person “who would be likely to know of its existence”. That it is, however, very crucial to note the evidence of DW as contained in paragraph 10 of his statement on oath. That the claimant has argued earlier on what manner of denial meets the requirement of the law in civil proceedings. In this regard, the testimony of DW is not that there had never been cases of voluntary retirement prompted by the defendant in the past. In the same vein, the testimony of DW is equally not that in those cases of voluntary retirement prompted by the defendant in the past there were no negotiations of issues. Rather, the testimony of DW is that in those negotiations of issues during the occasions of voluntary retirement prompted by the defendant in the past, the claimant “never participated in negotiations of issues”. This is supposedly rebuttal testimony of DW on behalf of the defendant. It is this evidence that this Court is required to place in one side of an imaginary scale and weigh it against the evidence of the claimant. When this is done, it is the submission of the claimant that this Court will find that there is indeed no divergence between both witnesses (the claimant and DW) on the point that in cases of voluntary retirement prompted by the defendant in the past, there were negotiations. The point of departure between the witnesses is whether or not in those cases of voluntary retirement prompted by the defendant in the past, the claimant participated in the ensuing negotiations.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that it is <i>ipso facto </i>incorrect for learned senior counsel to assert that what the claimant is urging this Court to make a finding in the claimant’s favour on is “his evidence alone”. Quite the contrary, and as has been shown hereinbefore, this Court also has the corroborative evidence of DW as contained in paragraph 10 of the defendant’s witness statement on oath. That it is equally incorrect for learned senior counsel to state that Exhibit C8 is the only evidence provided by the claimant. The claimant’s testimony is itself “evidence provided by the claimant”. That this point is rather trite and bears no belabouring. That Exhibit C8 may indeed be the only documentary evidence, but it is most certainly not the only evidence. Again, that it not also the position of the law, as canvassed by learned senior counsel that evidence in support or corroboration must come from a witness called by the claimant. This is not the law, citing <i>Musa v. Yerima</i> [1997] 7 NWLR (Pt. 511) 27.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant had also argued that “quality of evidence required to establish a custom must not only come from the party alleging the existence of the custom but must also come from another witness that is an employee of the defendant”. To this, the claimant submitted that DW perfectly fits this bill. DW is “another witness”. He is the defendant’s witness. That <i>Elendu v. Ekwoba</i> [1995] 3 NWLR (Pt. 380) 704 is authority for the proposition that the claimant is entirely at liberty to use the evidence adduced by the defendant to prove his case. Indeed, that DW having stated in his frontloaded deposition that there were previous cases “of voluntary retirement prompted by the defendant in the past” and that in those instances, there were “negotiations of issues”, the need for the claimant to call any further witness/evidence was immediately obviated.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That all that is indeed left is for this Court to place the competing evidence of both parties on the prescribed imaginary scale. Once this is done, that this Court will in all likelihood find that: “The onus of proof is satisfied on minimal proof since there is nothing on the other side of the scale” (<i>Mobil Oil (Nigeria) Limited v. National Oil and Chemical Marketing Company Limited</i> [2000] 9 NWLR (Pt. 671) 44 at 52). On the evidence adduced by both sides, the claimant then urged the Court to find the question of customary practice of the defendant as proved and grant the claimant’s relief 3.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><i>Claimant’s relief 4<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify">The claimant’s relief 4 is for “N61,36,000.00 (Sixty-One Million, Thirty-Six Thousand Naira) only being and representing the claimant’s redundancy benefit”. In justifying this relief, the claimant testified in paragraphs 39 to 46 of his statement on oath and gave evidence to show his entitlement to the claimed redundancy payment. In rebuttal, DW on behalf of the defendant testified at paragraphs 43 to 46 of his statement on oath. However, that while the testimony of the claimant is clear in terms that the action of the defendant in retiring the claimant “is viewed as <i>constructive</i> redundancy”, DW in his testimony as well as learned senior counsel in his submissions, proceeded on the footing that the matter is one of <i>actual</i> redundancy. That this difference is critically important as when something is in law said to be constructive, it usually denotes or suggests the absence of the actual. Hence, constructive possession all but suggests that there was no actual possession; just as constructive delivery indicates that there was probably no actual delivery. That same is true of constructive notice, which is usually imputed to persons who are deemed to have had, but apparently did not have, actual notice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant then, learned senior counsel is grossly mistaken in his submissions at paragraphs 84 to 89 of the defendant’s final address as all those arguments are relevant only if the case of the claimant was one of actual (as opposed to constructive) redundancy. That on the contrary, the claimant’s testimony is that the action of defendant is “viewed as constructive redundancy” and that, this being the case, a redundancy payment is <i>included</i> in the retirement package, referring to paragraph 41 of the claimant’s statement on oath. That this is quite separate and distinct from the case of an employee that claims redundancy simpliciter.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In support of his claim, the claimant gave evidence of the procedure followed by the defendant when the defendant decided to release some members of staff in 1999. The claimant also tendered and relied on Exhibit C8 in support. That learned senior counsel has gone to some length in attempting to create a distinction between a voluntary separation exercise and a voluntary retirement exercise. That the claimant fails to see the utility in this manner of distinction; which is indeed like trying to create a distinction between six and half a dozen. That it will certainly not assist in establishing the justice of this matter if parties were to become decidedly ensnared in the realm of semantics. In substance, that whether learned senior counsel terms it separation or retirement, there can be little difference between what happened to the affected staff of the defendant in 1999 and what happened in 2011 to the claimant and the twenty-three (23) other employees of the defendant (referred to in paragraph 21 of the statement on oath of DW). Both in 1999 and again in 2011, the defendant released some members of its staff.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that where there is a difference, and a marked one at that, is in the quantum of benefits paid to the affected staff in the two situations, which difference is occasioned by the departure by the defendant from the procedure adopted in the 1999 exercise when it came to 2011. That Exhibit C8 speaks for itself. It is self-evident from the exhibit that before the 1999 exercise commenced at all, the Management of the defendant first held a briefing for members of staff. It was subsequent to this briefing that “a meeting was agreed upon between Management and staff representatives”. That it is also evident on the face of Exhibit C8 that this scheduled meeting held from 13<sup>th</sup> July 1999 to 23<sup>rd</sup> July 1999, a period of eleven (11) days. At the end of the meeting, a retirement package to be paid to the departing staff was finally agreed “after a long period of hard bar<u>g</u>ainin<u>g</u> on both sides”. That the procedure adopted and followed by the defendant in 1999 is in sharp contrast to what happened in 2011 where, by paragraph 14 of the statement on oath of DW, “the Claimant and other managers” to be affected by the defendant’s cavalier action were invited to a meeting “as a courtesy”. Contrast also a meeting that held in the afternoon of 22<sup>nd</sup> September 2011 “where the issue of voluntary retirement was discussed”, only for letters of “voluntary retirement” to be distributed in the morning of the following day, 23<sup>rd</sup> September 2011.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the differences in the separate procedures adopted and followed by the defendant in 1999 and 2011 are indeed glaring. That the claimant has in paragraph 40 of his statement on oath testified that the defendant in refusing to follow the same procedure adopted in 1999, “was trying to avoid an upward review of the last voluntary separation formula, as well as avoiding payment of Redundancy Benefit that is due to me”. That this is exactly why the claimant has approached this Court to seek assistance in getting what is due to him which the defendant is deliberately trying to cheat the claimant out of.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That Exhibit C8 contains both a Memorandum as well as an Extract from The Minutes of the Meeting. Both the Memorandum and the Extract contain the package to be paid to the affected members of staff. However, that when it comes to the meeting of 22<sup>nd</sup> September 2011 “where the issue of voluntary retirement was discussed”, the defendant has exhibited neither a memorandum nor an extract from the minutes of the said meeting. Indeed, that the defendant has placed no document whatsoever before this Court to show, or at least give an indication, of what actually transpired at the meeting. All that the defendant seeks to rely on is the mere <i>ipse dixit </i>of DW as contained in paragraph 14 of his statement on oath. The claimant then submitted that contrary to the aforesaid testimony of DW, the issue of voluntary retirement was not discussed at the meeting held on 22<sup>nd</sup> September 2011. The claimant submitted further that this is precisely why the defendant is unable to exhibit a memorandum from the meeting or an extract of the minutes taken at same. In this regard the claimant urged the Court to invoke the provisions of section 167(d) of the Evidence Act 2011 against the defendant and hold that the defendant has not exhibited a memorandum or an extract from the minutes of the meeting held on 22<sup>nd</sup> September 2011 because exhibiting those documents would give the lie to the testimony of DW. Indeed, asked during cross-examination if any of the members of staff that attended the said meeting volunteered to retire, that DW answered that not a single member of staff so volunteered. Along much the same lines, the defendant pleaded and DW testified that the claimant had “never participated in negotiations” between the defendant and workers. However, that it is clear on the face of Exhibit C8 that the claimant is listed as one of those involved in the negotiations on the part of the defendant’s Management. When confronted with this exhibit in cross-examination, that DW confirmed that the name listed on the document was indeed the name of the claimant. The claimant then submitted that having participated in the eleven-day negotiations in 1999, the claimant is best placed to know what to expect when it comes to the matter of the claimant’s “voluntary retirement” in 2011. The claimant then urged the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant had pleaded in its paragraph 20 and DW testified in paragraph 24 of his statement on oath that in claiming redundancy benefit, the claimant would receive less and that the defendant had more or less done the claimant a favour since the claimant had under the extant arrangements received more money than the claimant would have received under the various alternatives mentioned therein. Asked under cross-examination about his evidence in the said paragraph 24, DW maintained that the various heads of payment are all exclusive of each other. However, to the claimant, Exhibit C8 is documentary proof that the various heads of payments claimed are inclusive of each other and not exclusive. Indeed, “Redundancy Payment” is listed as item number five in both the Memorandum as well as the Extract from the Minutes. The claimant submitted that this is proof that when the defendant retires members of its staff before the affected staff attain the mandatory retirement age, redundancy payment is part of the retirement package. Under cross-examination, DW confirmed that the age of mandatory retirement from the services of the defendant as at 1999 was fifty-five years. This is in tandem with Exhibit C8 which expressly refers to “those aged 50 years and above”. Accordingly, the claimant urged the Court to grant him this relief and order the defendant to pay to the claimant the redundancy payment as claimed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><i>Claimant’s reliefs 5, 6 and 7<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify">To the claimant, his reliefs 5, 6 and 7 are similar in nature and flow from identical rationales. The claimant accordingly argued his entitlement to the three reliefs together. The case of the claimant is that the defendant imposed the “voluntary retirement” on the claimant as an orchestration to deny the claimant of the benefits that flow from an involuntary retirement or retirement at the instance of the defendant. This is the testimony of the claimant at paragraph 16 of his statement on oath. The claimant further testified at paragraph 23 of the same statement on oath that the defendant in calculating the amount due to employees whose retirements are prompted by the defendant pays fully all benefits-in-kind, allowances and salaries for the remaining period the employee would serve before mandatory retirement at 60. That the evidence of the claimant in this regard is supported by Exhibit C8 which contains calculations up to 54+1 years that yields the 55 years admitted by DW to be the mandatory age of retirement in 1999.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In his rebuttal evidence at paragraph 34 of his statement on oath, DW described the testimony of the claimant as “false and entirely alien to the conditions of service”. Earlier in his testimony, at paragraph 24 of his statement on oath, DW confirmed the existence of “entitlements that flow from an involuntary retirement”. However, that when asked in cross-examination to state what those entitlements were, DW changed his testimony and said that he no longer knew. Further, and curiously, that DW later in his evidence repeatedly referred to the payment by the defendant to the claimant of what DW termed as “Voluntary Retirement Gratuity payment”. The relevant testimony of DW is to be found at paragraphs 45, 51, 57, 59 and 63 of his statement on oath. However, that in his entire testimony before this Court, DW failed to show what clause of Exhibit C2/D5 made provision for the payment of a “Voluntary Retirement Gratuity”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that the so-called “Voluntary Retirement Gratuity payment” is not provided for by Exhibit C2/D5 and was unilaterally created by the defendant to cheat the claimant out of the claimant’s legitimate end-of-service benefits, referring to the repeated assertions by DW under cross-examination that the claimant’s gratuity had in actual fact not been paid and was still being held by the defendant. The claimant then urged the Court to so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant further submitted that if a “Voluntary Retirement Gratuity payment” not provided for, or contemplated by, Exhibit C2/D5 can exist within the practice of the defendant, then it is not illogical to surmise that an “Involuntary/Compulsory Retirement Gratuity payment” not provided for by Exhibit C2/D5 similarly so exists within the practice of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the evidence adduced by both parties is what this Court is enjoined to place on either side of the imaginary scale in order to discover where the evidence preponderates. That this Court must make its finding based on the evidence of the claimant and DW. The choice is between the testimony of the claimant which was logical, coherent and unambiguous and that of DW which could not be so described and wherein words like “Gratuity”, “<i>Ex gratia</i>”, “Magnanimously” and “Erroneously” would appear to have been employed interchangeably as though each was a synonym of the others. Lastly, that the claimant in seeking these reliefs is not asking for anything which the defendant did not do in 1999. That it is not the quantity but the quality of evidence that matters in a case: <i>Agih v. Ejinkeonye & Bros Ltd</i> [1992] 3 NWLR (Pt. 228) 200. The claimant then urged the Court to find in his favour and grant the claimant’s reliefs 5, 6 and 7.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><i>Claimant’s relief 8<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify">The claimant’s relief 8 includes a prayer for pre-judgment interest. However, that the claimant noted that this Court does not award this species of interest: <i>Kurt Severinsen v. Emerging Markets Telecommunication Services Limited</i> [2012] 27 NLLR (Pt. 78) 374. Accordingly, the claimant abandoned this leg of his relief.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Claimant’s issue 3)</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant’s issue 3) is whether the defendant on its pleadings and evidence is entitled to succeed in its counterclaim. The claimant answered this in the negative arguing that the counterclaim as formulated is misconceived. That the defendant’s Exhibit D6 is unambiguously clear on the question of “any indebtedness to the Company” by the claimant. That as with all documents, Exhibit D6 speaks for itself: “From the above entitlements, we shall deduct any indebtedness to the Company and any indebtedness to any third party in respect of which there is a subsisting Company commitment. We will also make necessary deductions from the said entitlements for income tax (PAYE)”. Further to Exhibit D6, that DW testified in-chief that the defendant had since paid the claimant’s entitlements. Asked during cross-examination if the sum paid by the defendant to the claimant was paid in error, DW affirmed that same was NOT paid in error.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, in the light of the oral and documentary evidence before this Court, it can no longer lie in the mouth of the defendant to maintain that the claimant is still indebted to the defendant. That whatever indebtedness that may have existed must be taken to have been duly deducted by the defendant before the defendant paid over the claimant’s entitlements. That DW was unequivocal in asserting that the entitlements were not paid in error. Under cross-examination, DW was equally unambiguous in his testimony that the claimant was neither consulted, nor was he privy to the computations that yielded the final entitlements sum.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that the counterclaim before this Court is for recovery of indebtedness, which if indeed such indebtedness had truly existed would have been deducted by the defendant pursuant to Exhibit D6. The claimant then submitted that the logical inference and deduction to be made from the oral and documentary evidence of the defendant is that the claimant is not indebted to the defendant. That if the claimant was truly indebted to the defendant, the defendant would have effected the necessary deductions from the claimant’s entitlements before paying over the balance (if any) to the claimant. That the testimony of DW is that the claimant’s entitlements were not paid in error. In any event, that the defendant’s counterclaim before this Court is not one for the recovery of moneys paid in error or overpayment<b>.</b> Asked under cross-examination if the defendant ever at any time informed the claimant of any existing indebtedness to the defendant, the curious answer of DW was that it was the claimant’s counsel that informed the defendant. The claimant then invited the Court to draw the necessary conclusions from the adduced evidence and dismiss the counterclaim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, during cross-examination DW also admitted that on all the items listed in paragraphs 74 to 102 of his statement on oath, no money was being deducted by the defendant from the salary of the claimant for the amortization of any of the listed items. DW further admitted that the amortization was expected to be done via years of service and not cash deductions/repayments. Asked specifically if the claimant was ever told that he owed the defendant any amount, DW answered “No”. To the claimant then, in essence it was the action of the defendant in forcefully retiring the claimant that led to this issue ever arising. The claimant in paragraph 13 of his further statement on oath testified that all the subject items would have been fully amortized if the defendant had allowed the claimant to attain the mandatory retirement age. The claimant testified further in paragraph 16 of the said further statement on oath that but for the action of the defendant, the claimant would have been afforded time to plan for his retirement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The foregoing notwithstanding, that the defendant’s Exhibit D6 expressly stated that the claimant’s indebtedness to the defendant would be deducted from whatever terminal benefits were to be paid by the defendant to the claimant. That DW in his evidence in-chief as well as under cross-examination was unequivocal that the sums paid to the claimant by the defendant were not paid in error but were in fact made “magnanimously”. The claimant then submitted that whatever sums the defendant truly believed the claimant owed the defendant must have been fully deducted by the defendant before the balance was made available to the claimant “magnanimously”. That this is DW’s testimony; and it is in agreement with the defendant’s own Exhibit D6. That the logical inference to be drawn is that there in truth is no indebtedness to talk about or speak of, urging the Court so to hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that he is not indebted to the defendant; and this is why the defendant NEVER notified the claimant of any such indebtedness. That it may also explain why this matter had been pending before this Court for almost one and a half years before the defendant suddenly realised that there was indebtedness and then hurriedly amended its statement of defence to for the first time include a counterclaim. The claimant then urged the Court to dismiss the counterclaim as altogether misconceived.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimant submitted that there is some novelty in this case as it involves an employer forcefully retiring an employee and yet claiming that under the contract between the parties, the employee had voluntarily retired. That this Court must take occasion to make a statement about this sort of behaviour which seems to fly in the face of ordinary thinking and would appear to be at odds with commonsense. That there seems to be no jurisdiction in the world where what is being attempted by the defendant herein has ever been accomplished. That voluntary retirement must only mean retirement by the voluntary action of the employee. In any event, that a defendant repeating itself <i>ad nauseam</i> that it is the conditions of service, and the conditions of service alone, that governs the relationship of the parties, and yet when it suits the same defendant it conveniently goes outside the conditions of service to invent a Voluntary Retirement Gratuity payment.<b><u><o:p></o:p></u></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, it was because of situations such as this that this Court was created; and that indeed the 1999 Constitution was amended to make this Court a creation of the Constitution. That as the Court noted in <i>Kurt Severinsen v. Emerging Markets Telecommunication Services Limited</i> (<i>supra</i>), the jurisdiction of this Court is invoked not for the enforcement of mere contractual rights, but for preventing labour practices regarded as unfair. The claimant then urged the to dismiss the counterclaim and enter judgment in his favour as per the complaint and statement of facts.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE DEFENDANT’S REPLY ON POINTS OF LAW<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the defendant, in its reply on points of law, it will be responding to the following assertions made by the claimant –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The retirement decision was taken by the company and the claimant had no say in the matter. Thus, it is the company that has compulsorily retired the claimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The arguments or evidence adduced by the defendant to debunk the claimant’s case about international best practices allegedly cannot weigh more than the evidence adduced by the claimant to establish the existence of the international best practice.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The testimony of DW allegedly corroborates the claimant’s evidence on the existence of the customary practice which entitles him to the third relief before the Court and this obviates the need for the claimant to call any further witness.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimant’s retirement is allegedly viewed as “constructive redundancy”. Thus, redundancy payment is a part of an all-inclusive retirement package which the claimant is entitled to.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant allegedly imposed the “voluntary retirement” on the clamant as an orchestration to deny him of the benefits that flow from an involuntary retirement.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->It was the action of the defendant in forcefully retiring the claimant that allegedly led to the unamortized claims and if the defendant had allowed the claimant to attain the mandatory retirement age, all the subject items would have been fully amortized.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l31 level1 lfo28"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->If the claimant was truly indebted to the defendant, the defendant would have made the necessary deductions from the claimant’s entitlements before paying over the balance (if any) to the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The Claimant’s Retirement was Voluntary and Consistent with the Conditions of Service</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The response of the defendant here is that this Court can only look at the contract of employment for the intention of the parties (clause 15(a) of Exhibit C2/D5), not to the laws of English grammar as contended by the claimant, referring to <i>Edet v. Chaggon</i> [2008] 2 NWLR (Pt. 1070) 85 at 101, <i>Ekondo Community Bank Ltd v. Anieting</i> [2013] LPELR-21139 and <i>Animashawun v. Osuma </i><i>& ors</i> [1972] All NLR 367 SC. The defendant then proceeded to rehearse arguments it already made on the issue – in the main going beyond the pale of a reply on points of law. The defendant, however, drew the Court’s attention to the claimant’s call to this Court to apply equity. To the defendant, this ploy is fundamentally flawed because, as stated in <i>The Vessel Leona II v. First Fuels Ltd</i> [2002] LPELR-11284(SC); [2002] 12 SC (Pt. I) 55 “equity cannot rectify a contract”. In any event, that he who comes to equity must come with clean hands and do equity. That the claimant did not do this, considering that notwithstanding the facts that the claimant has been paid 6 months’ salary in lieu of notice in accordance with the conditions of service (which ended his employment) and he has been receiving monthly pensions as a retiree, the claimant has wrongfully retained, at the expense of the defendant, possession of the official residence known as Gulf of Guinea Lodge situate at No. 8 Sakete Close, Off Cairo Street, Wuse 2, Abuja, rented by the defendant, the family car leased by the defendant, and other assets purchased by the defendant. Thus, that having not come with clean hands or done equity, the claimant is not entitled to the exercise of this Court’s equitable jurisdiction in his favour.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>International Best Practices Relied Upon by the Claimant are Barren and Unreliable<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendant’s response here is that the claimant did not provide any evidence of the international best practices he relies on. That the claimant’s reference to his testimony in chief at paragraphs 36 and 37 of his statement on oath as well as paragraph 8 of his further statement on oath as evidence of international best practice is nothing but an ingenious attempt as discharging the duty placed on him. To the defendant, the <i>ipse dixit</i> which the claimant used to cite or make reference to the international best practices which he relies upon to found his claims cannot at the same time serve as proof of the existence of the international best practices. That the claimant cannot prove existence of an international best practice by his mere <i>ipse dixit</i>. That the ingenious effort by the claimant’s counsel in the final written address to manufacture evidence which the claimant did not adduce at trial is futile. That it is trite that arguments no matter how intelligent, beautiful and ingenious cannot replace evidence, referring to <i>C.C.C.T & C.S. Ltd v. Ekpo</i> [2008] All FWLR (Pt. 418) 198 SC at 205, 221, <i>Abraham N. Osadare </i><i>& ors v. Liquidation, Nigeria Paper Mills Ltd & anor</i> [2011] LPELR-9269(CA), <i>Nigeria Arab Bank Ltd v. Fely Keme Nigeria Ltd</i> [1995] 4 NWLR (Pt. 387) 100 at 111, <i>Mannussom v. Koiki</i> [1993] 12 SCNJ 114 at 124 – 125 and <i>The Branch Controller West African Examination Council Ilorin v. Alade</i> unreported Appeal No. CA/IL/3/2011) delivered on 18/11/11 per Ikyegh JCA.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then reiterated its argument that the totality of the points it made in relation to the issue of the claimant’s failure to incorporate the international best practices in the conditions of service are not inconsistent with section 7(6) of the NIC Act, but advances it. Furthermore, that the alleged ILO’s Conventions and Recommendations on Retirement, referred to in paragraphs 37 and 38 of the claimant’s statement facts, if they exist at all, are mere “recommendations”, as they are stated to be by the claimant who did not tender them before this Court, and are not incorporated into the defendant’s conditions of service, and thus not applicable to the employment of the claimant with the defendant. The defendant then proceeded to reiterate its argument that the claimant did not prove the existence of the international best practices which the claimant relies upon. That the claimant has not discharged the burden of proving that the alleged international best practices exist in the first place; such as his reference in paragraph 37 of his statement of facts to “International Labour Organisation’s ILO Conventions and Recommendations on retirement” without tendering it in Court, or the reference to practices of other countries in paragraph 8 of his further statement on oath without tendering documents that show the said practices. That to the extent that publications of the ILO and other countries (sovereign states) are in documented forms, the only way the claimant can prove the existence of those documents is to tender them before this Court. That the claimant cannot discharge this burden by any other means; not by his <i>ipse dixit</i> which is not different from his oral evidence which was merely reduced into writing. The defendant referred the Court to section 125 of the Evidence Act 2011, which makes it very clear that the content of a document cannot be proven by oral evidence; and section 106(f) of the Evidence Act, which provides that documents relating to the proclamations, treaties or acts of State of any other country are to be proven by journals published by their authority or commonly received in that country as such or by a copy certified under the seal of the country or sovereign.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify;tab-stops:4.0in">To the defendant, given the claimant’s failure to tender the required documentation to prove international best practices that he has alleged, it can be reasonably presumed that those documents, assuming they exist at all, if presented, will speak against him or will be adverse or unfavourable to his case, relying on section 167(d) of the Evidence Act. That to the extent that the claimant did not adduce evidence to support his reliance on the international best practices, the averment in his pleadings and the claims which are based on these international best practices must collapse. That it is the law that where pleadings are not supported by evidence, they go to no issue and must fail, referring to <i>Abubakar v. Joseph</i> [2008] 13 NWLR (Pt. 1104) at 357 SC. That where, as in this case, the claimant fails to satisfy the evidential burden of proving his case, the defendant is not obliged to provide any rebuttal evidence. This is because the burden of proof in civil cases rests on the party who asserts the affirmative of an issue, referring to <i>U.N.I.C v. U.C.I.C</i> [1999] 3 NWLR (Pt. 593) 17 at 26 – 27. The defendant then urged the Court to note that a claimant must succeed on the strength of his own case (which in this case is the strength of his proof of the international best practices) and not the weakness of the defence, citing <i>Dumez Nigeria Limited v. Nwakhoba</i> [2008] 18 NWLR. (Pt. 1119) 361 SC, <i>Kodilinye v. Ubanefo Odu</i> [1935] 2 WACA 336 and <i>Adenle v. Oyegbade</i> [1967] NMLR 136.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any event, that even if the claimant discharged the burden of proving the international best practices that he relied upon, that the international best practices cannot override the clear agreement between the parties as contained in the clause 15(a) of the conditions of service (Exhibit C2). That the law is clear that parties are at liberty to contract freely and regulate the scope or extent of their rights and relationship in a contract on their own terms, so long as these are not illegal and or unlawful, referring to <i>Afrotech v. Mia & Sons Ltd</i> [2000] 15 NWLR (Pt. 692) 788; [2000] SC (Pt. II) 1 at 13.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The Claimant Has Failed in Proving the Existence of the Alleged Defendant’s Customary Practice<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Here, once again the defendant rehearsed arguments it had proffered, all in the name of debunking the submissions of the claimant. In the main, the defendant merely reargued its case in the name of a reply on points of law. The defendant then proceeded to submit that contrary to the submission of the claimant, the testimony of DW at paragraph 16 of his sworn deposition does not in any way corroborate the claimant’s assertion that a customary practice exists. That for the testimony of a witness to corroborate another, such testimony must give strength and support and not contradiction to the testimony of the other witness, referring to <i>Dagayya v. State</i> [2006] 7 NWLR (Pt. 980) 637 SC. That even if the testimony of DW does not contradict the claimant’s testimony, the claimant is still bound to fail in his assertion of the existence of the alleged customary practice given section 18(2) of the Evidence Act, which states that where evidence of a custom is required, the opinions of persons who know of its existence should be given in evidence. That by section 18(2) of the Evidence Act, the evidential standards required by anyone who would give evidence as to the existence of a custom are: (a) knowledge of the existence of the custom and (b) the opinion of such person. That the testimony of DW does not meet these standards. That the claimant’s reliance on <i>Musa v. Yerima</i> [1997] NWLR (Pt. 511) 27 is erroneous, misleading and wholly inapplicable given that the provision of the Evidence Act which was construed by the Court in the case is section 149(d), which deals with non-production of evidence and not non-production of witness. That after making this distinction, the Court went on to clarify as follows: “Thus, the section deals with the failure to call evidence and not the failure to call a particular witness”. That in the instant case, what the claimant is required to do by virtue of sections 18(2) and 73 of the Evidence Act is to call a particular witness and not evidence. This, the claimant has failed to do. Therefore, he cannot by subterfuge take advantage of the principle which relates to the calling of evidence as they are clearly distinct requirements.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the law is settled on the consequence of failure to call a witness when required, referring to <i>Oba R. A. A. Oyediran of Igbonla v. His Highness Oba Alebiosu II & ors</i> [1992] 6 NWLR (Pt. 249) 350, which held that it will be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive, as well as <i>Adeogun v. Ekunrin</i> [2003] 2 NWLR (Pt. 856) 52 SC at 80 – 81, which reiterated that it will be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive. The defendant then urged the Court to hold that the claimant has failed to adduce evidence to establish the existence of the alleged customary practice and even if he has done so, the evidence is unsubstantiated and uncorroborated.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The Claimant’s Heads of Claims are all Exclusive and Contradictory<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Once again, the defendant here went beyond the pale, arguing more on the facts than the law thus virtually rearguing its case. The defendant urged the Curt to note that “constructive redundancy” is not provided for in the conditions of service; as such its utilization by the claimant in his submissions should be discountenanced. That the claimant cannot blow hot and cold at the same time – relying on the one hand on customary practice and then jettisoning it for the conditions of service on the other hand. That it is trite that where a party presents contradictory evidence before the Court, the Court is bound to reject both pieces of evidence, citing <i>Lasun v. Awoyemi & ors</i> [2011] LPELR-5116(CA), <i>Ude v. Nwara</i> [1993] 2 NWLR (Pt. 278) and <i>Onafowokan v. State</i> [1987] 3 NWLR (Pt. 61) 538 at 553. The defendant then simply itemized what it termed the contradictory arguments of counsel to the claimant. The discussion of the learned senior counsel here was nothing other than a rehearse of his earlier arguments.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The Claimant’s Claim for Involuntary Retirement Benefits is Unfounded and Unmeritorious<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Yet again, what the defendant did here was merely to reargue its case calling on the Court to note that the submissions of the claimant here are nothing but half-truths, which should be discountenanced. The defendant went on to submit that there is no benefit accruable to the claimant under “involuntary retirement” and in fact there is no such concept, term or agreement between the parties that is described as “involuntary retirement”. That the claimant had unilaterally introduced this phrase “involuntary retirement” into this case without any basis and for the sole purpose of obtaining benefits that are ordinarily not accruable to him under the conditions of service which binds the parties. However, that even if the term “involuntary retirement” exists the claimant has failed to give evidence or particulars of such benefits. That it is trite that the Court is not allowed to speculate, but only act on evidence before it, as judgments should not be based on unpleaded and unproved facts, citing <i>Omidiora v. Fed. Civil Service Comm.</i> [2007] Vol. 44 WRN 53 CA at 73 and <i>Oyinloye v. Esinkin</i> [1999] 10 NWLR (Pt. 624) 540; [1999] 6 SCNJ 278. The defendant then called on the Court to discountenance the claimant’s request for the bizarre and unproven involuntary retirement benefits and resolve this issue in favour of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The Claimant has Failed in His Attempt to Deny His Liability in the Counterclaim<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Here, the defendant urged the Court to note that the claimant has not denied the liabilities of the sums claimed by the defendant in the counterclaim, neither has he presented any evidence to rebut the claims. That what the claimant simply did was to use speculation and assumption as his defence, which speculation, assumption, guess work, etc has no place in law, referring to <i>Omidiora v. Fed. Civil Service Comm.</i> (<i>supra</i>).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that the claimant’s argument that because the defendant did not make necessary deductions from his entitlements to settle his liabilities, then he is not indebted, is untenable and begs the question. In any case, that this is an attempt by the claimant’s counsel to introduce a new defence by way of a final address, as neither the claimant’s pleadings nor evidence contained this defence. That it is trite that it is improper for a new defence to be introduced in a final address as the claimant has attempted doing in his final address, citing <i>Elder Ogbonnaya Onwuchekwa </i><i>& anor v. Chief Peter Chukwu Onwuegbu & ors</i> (<i>supra</i>).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the light of the foregoing, the defendant then submitted that it is not in doubt that the claimant has not put forward any defence or evidence to controvert or challenge the defendant’s evidence of its counterclaim. That it is settled law that evidence that remains unchallenged or attacked ought to be relied upon, referring to <i>Unity Life </i><i>& Fire Insurance Co. Ltd v. I.B.W.A. Ltd</i> [2001] NWLR (Pt. 713) 610 and <i>Amayo v. Erinmwingbovo</i> [2006] 11 NWLR (Pt. 992) 699. The defendant then urged the Court to discountenance the arguments of the claimant on this issue and resolve it in favour of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the defendant urged the Court to dismiss the claimant’s case and grant its counterclaim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. Before considering the merits of this case, I need to make a remark or two on the submissions of counsel. In the first place, a reply on points of law must remain just that – a reply on points of law. It is not meant to be anything else. In fact, it is not proper to use a reply brief to extend the scope of the initial final written address. See <i>Cameroon Airlines v. Otutuizu</i> [2011] LPELR-827(SC); [2011] 4 NWLR 512 and <i>Tetrazzini Foods Ltd v. Abbacon Investment Ltd</i> [2015] LPELR-25007(CA). A situation where learned senior counsel would assume that it is another avenue of rearguing a case should certainly not be encouraged (<i>Cross Country Ltd v. AG Moeller Ltd</i> [LPELR-24091(CA)), not when to start with learned senior counsel had submitted an 86-paged final written address. So to file a 35-paged “reply on points of law”, which turns out to merely reargue positions already canvassed in a final written address of 86 pages is uncalled for. In paragraph 2 of the reply on points of law, the learned senior counsel did not even hide the fact that his reply will be responding on the enumerated assertions (meaning not necessarily law) made by the claimant. It is bad enough that a final written address is 86 pages. Even in election petition cases where there could be truckloads of hard evidence, final written addresses are limited to only 40 pages. So for an employment case such as the instant case where only two witnesses were heard and only a handful of exhibits tendered, it is questionable why the final address of learned senior counsel should be 86 pages, and the reply on points of law 35 pages. Learned senior counsel did not seem to realise that precious/valuable judicial time needs to be preserved especially in this era of enlarged dockets. Brevity today is the watchword. This experience, if anything, calls for the formal restriction of the number of pages that written addresses must have, as is the case with election petition cases.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As second remark is that in the opening and closing paragraphs of the written address of the claimant (paragraphs 2.3 and 5.2 respectively to be specific), counsel to the claimant made allusions the fact of this Court not granting his prayer to amend his originating processes by bringing in facts and documents to show that the retirement of the claimant was done in contravention of extant Nigerian regulations and that the Department of Petroleum Resources (DPR) had written to the defendant demanding a reversal of the so-called “voluntary retirement”. This Court in a considered ruling on 1<sup>st</sup> July 2015 turned down the prayer of the claimant. I am not aware that the claimant appealed against this ruling. So for counsel to the claimant to continually refer to this fact in circumstances that suggest that either a submission is still being made on it or that counsel disagrees with the decision of the Court on it (without appealing against it) is surely improper conduct on counsel’s part. I had cause in an earlier case to denounce this sort of conduct by counsel. In <i>Chief J. A. Emasealu v. Akoko-Edo Local Government, Edo State & anor</i> unreported Suit No. NIC/LA/31/2011 the judgment of which was delivered on 13<sup>th</sup> May 2014, this Court<span lang="EN-GB"> expressed profound displeasure at counsel to the 1<sup>st</sup> defendant (</span>Prince H. I. O. Oshomah<span lang="EN-GB">) for “</span>bringing up issues that have long been settled, issues that only the appellate process can resolve”. This Court in a considered ruling had held that the case in question was not statute-barred. Counsel, however, chose to allude to by raising the issue in his final written address in the matter. This Court had even earlier cautioned counsel. Yet, despite<span lang="EN-GB"> the caution, counsel had “the shameless nerve, the audacity, the effrontery, the impudence and the temerity to raise the issue once again”. This Court concluded by holding that: “His stance is contemptuous of the Court; and with this sort of practice, Prince Oshomah should be heading towards a disciplinary inquiry by the Bar”. Unfortunately, it is this sort of conduct that has played out in the instant case.</span><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any event, this thing about counsel harping on “the sad and untimely demise” of the former counsel intuits and indeed inputs some sort of wrongdoing on the part of the late former counsel for not having the desired facts and documents brought in. Additionally, if the continual reference to “the sad and untimely demise” of the late former counsel is to steer up sentiments or emotions, counsel must know better that sentiments and emotions have no place in court proceedings. See <i>Babawuro Usman v. The State</i> [2014] LPELR-22879(SC) per the concurring judgment of Rhodes-Vivour, JSC. I agree with the learned senior counsel that the submission of the counsel to the claimant smacks of an affront to the authority of this Court. I was prepared to overlook this after reading the opening paragraphs (paragraph 2.3 to be specific) of the claimant’s written address; but when it was repeated in the closing paragraphs (paragraph 5.2 to be specific) of the written address, it dawn on me that counsel to the claimant must be read to be up to some mischief. I do not think that this is conduct that should be condoned or encouraged at all. As it is often said, a word is enough for the wise.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">These remarks made, I now address the merit of the submissions of both counsel in this case. The issues before the Court can broadly and simply be said to be whether the claimant is entitled to and so has proved the reliefs he claims from this Court, and whether too the defendant is entitled to and so has proved its counterclaim. I shall start with the reliefs claimed by the claimant before addressing the defendant’s counterclaim; and in terms of the reliefs claimed by the claimant, they are principally declaratory reliefs, orders for the payment of sums of money and interest on the sums claimed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The case of the claimant is that he was abroad and on 28<sup>th</sup> September 2011 simply saw a bank alert on his telephone indicating that his account has been credit with the sum of N14,277,000.00 representing 6 months’ payment in lieu of notice; that the text message concluded with a statement that read “J. A. Owulade – Voluntary Retirement”. See paragraphs 9 and 10 of the claimant’s deposition of 17<sup>th</sup> December 2012. To the claimant, since the decision to retire was not his but the defendant’s (he having not reached the retirement age of 60 years), the retirement is involuntary and so is wrong, unlawful and illegal, it being contrary to the binding contractual documents binding him and the defendant as well as the usual customary practice and procedure of the defendant. To the claimant then, the defendant imposed the “voluntary retirement” on him as an orchestration to deny him the benefits that flow from an involuntary retirement or retirement at the instance of the defendant. In this regard, the claimant testified at paragraph 23 of his deposition of 17<sup>th</sup> December 2012 that the defendant in calculating the amount due to employees whose retirements are prompted by the defendant pays fully all benefits-in-kind, allowances and salaries for the remaining period the employee would serve before the mandatory retirement at 60. To the claimant, his evidence in this regard is supported by Exhibit C8 which contains calculations up to 54+1 years that yields the 55 years admitted by DW to be the mandatory age of retirement in 1999. On the other hand, the case of the defendant is that it acted lawfully when it retired the claimant for it acted pursuant to clause 15(a) of Exhibit C2, which allowed either the claimant or the defendant to voluntarily retire the claimant. In other words, that the defendant has the contractual right to voluntarily retire the claimant as per clause 15(a) of Exhibit C2. Clause 15(a) has been reproduced in this judgment. Under “Decision”, it indicates, “Staff or Company”, thus suggesting that either the staff or company may make the decision to retire the staff. The first issue that arises from all of this, therefore, is whether in law the defendant can voluntarily retire the claimant as it did; and even as per clause 15(a). In other words, even if clause 15(a) were to state that the defendant can voluntarily retire the claimant, is this valid in law?<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">We cannot answer all these questions without first understanding how voluntary retirement is understood in labour law. The term voluntary retirement is often used in contradistinction to compulsory or mandatory retirement. I am not aware of any decided case in Nigeria that specifically defined “voluntary retirement”.<span style="font-family:"Verdana","sans-serif";color:#009933"> </span><i>WAEC v. Oshionebo</i> [2006] LPELR-7739(CA); [2006] 12 NWLR (Pt. 994) 258 chose to explain the difference between a letter of resignation and a notice of retirement. <i>Rufus Femi Amokeodo v. IGP</i> [1999] LPELR-468(SC); [1999] 6 NWLR (Pt. 607) 467; [1999] 5 SC (Pt. II) 1 on the other hand treated the issue of voluntary retirement from the stand point of pension rights. <i>Chief D. A. Eboreime v. Mr. B. S. Arumene</i><span style="font-family:"Verdana","sans-serif";color:#009933;mso-bidi-font-weight: bold"> </span>[1977] LPELR-12812(CA) dealt with <a name="18660">Regulation 20(1) and (2) of the Unified Teaching Service (Staff) Regulations published as M.S.L.N. No.1 of 1974, which provides as follows –<o:p></o:p></a></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(i) Subject to any other age as may from time to time be prescribed by the Ministry, the retiring age for teachers shall be forty-five years.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(ii) A teacher who has reached the age of forty-five years may elect to retire voluntarily or may be called upon by the Board to retire, subject to the giving of not less then six months' notice in either case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">On this, all the Court said was that “it is clear from these that attainment of the age of 45 years and giving of not less than six months’ notice are the two conditions precedent to voluntary retirement under the Regulations”. What I could discern from all these cases is that they treated the issue at hand from the prism of the employee being held to have the right. The cases were all silent on whether the employer had such a right. See also<b><span style="font-family:"Verdana","sans-serif";color:#CC0000"> </span></b><i>Mr. Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc</i> [2015] LPELR-24630(CA) where the employees had the option to voluntarily retire and be given as incentive an enhanced (up 36 months’) basic salaries pay or be later compulsorily retired without of course the 36 months’ basic salary pay incentive. The textbooks are more forthcoming, however.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Elizabeth Slade QC MA (Oxon) – <i>Tolley’s Employment Handbook</i> (LexisNexis: UK), 2008, 22<sup>nd</sup> Edition at paragraph 42.4 at page 867 talks of early retirement in place of voluntary retirement stating in the process that “there is no legal impediment to employees voluntarily retiring early, subject only to the giving of any notice required under the contract of employment”. The author all through did not talk of the employer having the right to voluntarily retire an employee. In fact on the issue of change of retiring age, the author at paragraph 42.5 at page 868 was very specific that “in the absence of consent by the employees, or incorporation of an agreement reached through collective agreement, a change cannot be unilaterally imposed through the contract”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The more specific book on the subject, V. K. Kharbanda – <i>Cases and Materials on Resignation and Retirement</i> (Law Publishing House: Allahabad), 2005 at page 498, is very revealing. It explains that “the idea behind voluntary retirement is to allow the employees to leave the employment gracefully and still receive all retiral benefits”. It then proceeds to state as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Voluntary retirement should be a purely voluntary act of the employee concerned. There should not be any coercion or threat of force or illegal incentives behind voluntary retirement.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Unless termination of service is the result of a voluntary move on the part of the employee, he cannot be said to have voluntarily retired. A mere submission of the employee to the termination of service by the employer cannot be said to be a voluntary act of the employee. This is particularly so in a case where the employer has a power, under the terms of employment, to terminate the service although such power has to be exercised after notice or on giving pay in lieu of notice. A voluntary retirement is the act of the employee, just as dismissal or removal from service is an act of the employer.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Now, if voluntary retirement is the act of the employee (not the employer’s) then it means that an employer cannot voluntarily retire an employee. In other words, an employer cannot take the decision to retire his employee and then claim that it is voluntary retirement. This is the sense in which the term “voluntary retirement” is understood in the world of work and under labour/employment law; and I so find and hold. For what it is worth, even the defendant appears to appreciate this for in paragraph 203 of its final written address, for instance, the learned senior counsel to the defendant talked of “…the claimant’s voluntary retirement on 30 September 2011”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The issue, however, is that the defendant thinks otherwise, pleading sanctity of contract given clause 15(a) of Exhibit C2. The question, therefore, is whether an employer who chooses to go against the orthodoxy of voluntary retirement being an act of the employee, not the employer’s, has acted fairly. In other words, can the doctrine of sanctity of contract be qualified by the rule against unfair labour practices? I posed this question in open Court to the learned senior counsel, and all I got from him was that the doctrine of sanctity of contract is an overriding principle which cannot be qualified by the rule against unfair labour practices. It is no longer in doubt that under section 254C(1)(f) of the 1999 Constitution, as amended, this Court has jurisdiction over unfair labour practices or international best practices in labour, employment and industrial relation matters; and by section 7(6) of the NIC Act 2006, this Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations. See <i>Olufemi Amodu v. Epesok Paper Mill Limited</i> unreported Suit No. NICN/LA/304/2013 the judgment of which was delivered on 22<sup>nd</sup> June 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The argument of the defendant is that clause 15(a), the provision on “voluntary retirement” in the conditions of service, permits the defendant to voluntarily retire the claimant. In support of this argument, the defendant stressed the need for the Court to give effect to the principle of sanctity of contract in treating the conditions of service, the contract binding both parties, as a product of the wishes of the parties. First, the defendant seems to have forgotten that the conditions of service was designed by the defendant without any input from the claimant. The terms in the conditions of service were not the product of any mutual discussion between the claimant and the defendant. Secondly, in principle and within the realm of labour law, can an employer actually be said to have the right to voluntarily retire an employee? Alternatively put, when in labour law we talk of voluntary retirement, is it from the stand point of the employee or that of the employer? Thirdly, and related to all this, is the question whether the defendant, even given the sanctity of contract rule, can provide in the conditions of service, as it did in the instant case, a clause permitting it to voluntarily retire the claimant. In other words, is a clause such as the one under consideration a fair clause in terms of labour practices? I indicated earlier that in the world of work as well as under labour/employment law, voluntary retirement is understood only in terms of the employee making or taking the decision to retire unhindered by the employer. A voluntary retirement is the act of the employee, not the employer’s. So when an employer writes in the conditions of service as the defendant did under clause 15(a) of Exhibit C2, that employer has gone beyond the pale and so has acted unfairly. The act of the employer (the defendant in the instant case) in that regard is accordingly a labour practice that is unfair.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant argued that nothing can be read into the conditions of service binding on it and the claimant. Here, the defendant did not address its mind to <i>Mr. Kurt Severinsen v.</i><i> Emerging Markets Telecommunication Services Limited</i><span lang="EN-GB"> [</span>20<span lang="EN-GB">12]</span><span lang="EN-GB"> </span><span lang="EN-GB">27</span> NLLR (Pt. <span lang="EN-GB">78</span>) <span lang="EN-GB">374 NIC, where this Court held that its</span><span lang="EN-GB"> </span>jurisdiction is invoked not for the enforcement of mere contractual rights, but for preventing labour practices regarded as unfair. A basic rationale of labour law (and hence the labour standards it gives rise to) is that it evolved to protect workers/employees. As such a basic principle of labour law is that conditions of service, where ambiguous, and based on the <i>contra proferentem</i> rule (a rule in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included), must be interpreted in favour of the employee.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In this sense, I agree with the claimant that the spirit and letter of section 254C(1)(f) of the 1999 Constitution, as amended, and section 7(6) of the NIC Act 2006, as well as the intendment of same, is that they operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. Even when section 7(6) of the NIC Act 2006 declares that what amounts to good or international best practice in labour or industrial relations is a question of fact, it means that such a practice is not already codified in the conditions of service and would thus require to be pleaded and proved by the party alleging their existence. See<i><span style="font-size:16.0pt;mso-bidi-font-weight: bold"> </span>Oyo State v. Alhaji Apapa & ors</i> [2008] 11 NLLR (Pt. 29) 284. Additionally, as argued by the claimant, international best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom, if ever, the subject of consideration in this regard.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the whole, therefore, it is my finding and holding that clause 15(a) of Exhibit C2 in providing that the defendant can voluntarily retire the claimant goes beyond the orthodoxy of labour law wherein voluntary retirement is the decision of the employee, not the employer’s. To the extent that clause 15(a) allows the defendant to voluntarily retire the claimant, it is accordingly an unfair clause and so an unfair labour practice on the part of the defendant. The retirement of the claimant by the defendant on 28<sup>th</sup> September 2011 is, therefore, involuntary. Is it thereby wrongful, unlawful and illegal? This remains the question.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To start with, whether it is termination or dismissal or, as (is presently the case) retirement, it is erroneous to think that any of this can be wrongful, unlawful and illegal, all at the same time. <i>BCC Plc v. Ager</i> [2010] 9 NWLR (Pt. 1199) 292 SC held that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. That where the Court makes a finding of wrongful dismissal, a payment in lieu of notice will apply; but where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination as what the employer did was a nullity before the law. The point is that a wrongful termination, dismissal or retirement would ordinarily stand subject to the payment of damages; but one that is unlawful and illegal will not stand and so reinstatement of the affected employee will have to be ordered. An unlawful and illegal termination, dismissal or retirement cannot, therefore, be at the same time wrongful given the stance of the Supreme Court in <i>BCC Plc v. Ager</i>; it can only be either. So when the defendant in the instant case “voluntarily” retired the claimant without notice, that was wrongful, not unlawful and illegal, since the defendant ordinarily has the right of termination, which is what the action of the defendant (having to “voluntarily” retire the claimant vide a phone text message and crediting the claimant’s account with the sum of N14,277,000.00 representing 6 months’ payment in lieu of notice) in the instant case approximated to; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the case of the claimant that his retirement was contrary to the usual customary practice and procedure of the defendant and as such is contrary to good and international labour best practice. The reliefs claimed by the claimant are necessarily hinged on what the claimant termed as “the usual customary practice and procedure of the defendant” and “good and international labour best practice”. The issue that accordingly arises here is whether the claimant proved the existence of “the usual customary practice and procedure of the defendant” as well as “good and international labour best practice”, both against which his retirement and hence monetary reliefs can then be gauged. While the defendant thinks the claimant did not discharge the burden of proof, the argument of the claimant is that he has sufficiently discharged the burden of proof. The law is that he who asserts has the burden to prove. See<i> Ademola Bolarinde v. APM Terminals Apapa Limited</i> unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on 25<sup>th</sup> February 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In paragraphs 21 – 35 and 40 of the statement of facts, the claimant pleaded facts as to the defendant’s customary practice; and in paragraphs 36 – 39, the claimant pleaded international best practice in labour, referring to as it were “the International Labour Organisation’s (ILO) relevant Conventions and Recommendations on retirement”. According to the claimant, his evidence establishing “the usual customary practice and procedure of the defendant” and “good and international labour best practice” are to be found in paragraphs 21 – 33, 36, 37 and 38 of his sworn deposition of 17<sup>th</sup> December 2012 as well as paragraph 8 of his further statement on oath of 18<sup>th</sup> February 2014. Under cross-examination, the testimony of the claimant is that it is paragraphs 21 – 31 of his deposition of 17<sup>th</sup> December 2012 that he described the customary practice. All these paragraphs provide as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">21. The customary practice of the Defendant until my case has always been to treat retirement at the instance of the company as redundancy. Thus, any decision on the part of the company to downsize its staff strength by way of retirement before their contractual age of retirement is viewed as constructive redundancy.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">22. Where the decision to prompt voluntary retirement is made by the Defendant, it will engage its management and the workers union to wit: PENGASSAN and NUPENG in a tripartite meeting where the company’s decision will be made known and the three parties will agree on the formula to adopt for the purpose of paying entitlements in carrying out the exercise.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">23. In calculating the amount due as severance to employees whose voluntary retirement is prompted by the Defendant, the Defendant pays fully all the benefits-in-kind, allowances and salaries for the remaining period the employee would served (sic) before mandatory retirement at 60. At the time of my purported retirement I had four years of service remaining.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">24. At the tripartite meeting, PENGASSAN and NUPENG represent the interest of their members while the Management represents the interest of the Managers and the Company.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">25. Also at the tripartite meeting, defendant usually will present a list of those it wants to retire voluntarily; whatever is the existing formula for such exercise as at the last time it was done will be upgraded to make sure it conforms with current practice in the oil industry; a new Voluntary exercise Package that will present to the affected staff will be agreed upon by the parties; and the unions will be implored to inform and persuade their members to accept the new package being offered.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">26. After the above stated steps in paragraph 26 (sic) above, those interested to accept the package and retire will then write individually requesting to retire voluntarily.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">27. Other people though not affected by the Company’s list but who sees (sic) the retirement package as attractive also have the freedom to elect to retire voluntarily during the exercise.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">28. The workers who indicated their interest to retire voluntarily would then write officially to the company signifying their intention and the company will subsequently meet with them on individual basis to confirm their interest.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">29. It is only when the above procedure is followed that retirement decision made by the company can be termed voluntary retirement in line with Clause 15 of the managers condition of service as well as similar provisions in the Collective agreement between PENGASSAN and the Defendant.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">30. When workers or employees intend to retire voluntarily on their own, the above procedure will not be required under clause 15 of the Conditions of Service.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">31. Everyone who has ever left the services of the Defendant under Clause 15 of the Conditions of Service at the instant (sic) of the Company before the current exercise involving me, applied to retire in line with the above stated practice.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">36. I have travelled widely and I know as a fact that in many countries of the world that I have been to, no worker can be retired without notice except the retirement is mandatory and the employer has a duty to notify the employee in writing of the date which he intends the employee to retire and the employee’s right to make a request not to retire on the intended date.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">37. The mode of my retirement by the Defendant without notice is in contravention of the usual custom and practice of the Defendant in such retirements and conflicts with what is obtainable in other parts of the world and industrial relations.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">38. My retirement by the Defendant on 28<sup>th</sup> September 2011, contravenes binding contractual documents between me and the Defendant and was done in violation of established custom and practice of the Defendant’s workplace.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">8. Although I was on leave when the Defendant held the purported meeting stated in paragraph 25 of its statement of defense, it is against international best practice in labour and the Defendant’s customary practice for a sensitive issue like voluntary retirement to be discussed in the kind of forum provided by the Defendant which at best can be described as a town hall meeting. The discussion ought to have been private and strictly individualized which the Defendant failed to do.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Additionally, the claimant submitted that paragraph 10 of the DW’s statement on oath of 31<sup>st</sup> January 2014 is the needed corroborative evidence to authenticate his proof of “the usual customary practice and procedure of the defendant”. Paragraph 10 of DW’s deposition states as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">In answer to the averments and depositions contained in paragraph 7 of the Claimant’s Statement of Facts and the Claimant’s Witness Statement on Oath, I admit only to the extent that, prior to the Claimant’s promotion to management position, the Claimant was a member of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) and held several positions in the Union. The Claimant however, never participated in negotiations of issues of “voluntary retirement” promoted by the Defendant in the past.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant placed reliance on Exhibit C8 as corroborating his claim to “the usual customary practice and procedure of the defendant”. Under cross-examination, the claimant testified that Exhibit C8 is an example of the implementation of the customary practice. Exhibit C8 is a memorandum from District Human Resources & Org Manager to Managing Director (MD). It is dated July 23, 1999 and titled “Voluntary Separation of Staff 1999”. At the second page of Exhibit C8 is this statement –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">However, after a long period of hard bargaining on both sides, the following package was agreed to be applied to those that will be released in 1999.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The package was then submitted to the MD for approval. The MD gave his approval.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">From all of this, can it then be said that the claimant has discharged the burden of proving “the usual customary practice and procedure of the defendant” and “good and international labour best practice” he relies on? I start with the claimant’s reliance on “the International Labour Organisation’s (ILO) relevant Conventions and Recommendations on retirement”. What is this “ILO relevant Conventions and Recommendations on retirement”? All ILO Conventions and Recommendations are appropriately titled and numbered e.g. the eight ILO core Conventions, which all ILO members including Nigeria must subscribe to, namely, Forced Labour Convention No. 29; Freedom of Association and Protection of the Right to Organize Convention No. 87; Right to Organize and Collective Bargaining Convention No. 98; Equal Remuneration Convention No. 100; Abolition of Forced Labour Convention No. 105; Discrimination (Employment and Occupation) Convention No. 111; Minimum Age Convention No. 138; and Worst Forms of Child Labour Convention No. 182. So, I repeat the question: what is this “ILO relevant Conventions and Recommendations on retirement” in terms of its appropriate title and number? I do not think that the claimant appreciates the nature and character of ILO Conventions and Recommendations. Even the defendant! In arguing that ILO Recommendations are mere recommendations, the defendant thereby expressed ignorance as to their true nature and character. Conventions are the main instruments through which the ILO lays down labour standards to be observed by member States. Recommendations then explain the true import of the standards laid down in Conventions. Both Conventions and Recommendations are held in very high esteem by the ILO that members States are held strictly to their observance. The seriousness with which the ILO holds member States to the observance of Conventions and Recommendations is such that a special body, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has been set up to regularly examine government reports on the application of Conventions and other obligations set out in the ILO Constitution and then assesses the conformity of national law and practice with the provisions of ILO Conventions. The report of the CEACR is published annually. The membership of the CEACR (20 in all) is drawn only from the top echelon of legal practice (with specialization in labour law) around the world and includes Judges, Law Professors and Law Practitioners. See generally <a href="http://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/committee-of-experts-on-the-application-of-conventions-and-recommendations/lang--en/index.htm">http://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/committee-of-experts-on-the-application-of-conventions-and-recommendations/lang--en/index.htm</a> as accessed on 26<sup>th</sup> June 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">ILO Conventions and Recommendations accordingly are certainly not treated lightly as they typify the minimum benchmark of labour standards that the ILO itself enjoins on member States and so are a very veritable source of the international best practice of labour or industrial relations, once it is shown to <i>actually</i> exist. The issue, therefore, with the case of the claimant in the instant case is that the claimant has not shown to this Court that there is <i>actually</i> an ILO Convention and Recommendation on Retirement. If the claimant expects that it is the Court that will do this for him, he must be in error as courts are adjudicators, not investigators. See<i> Ademola Bolarinde v. APM Terminals Apapa Limited</i> unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on 25<sup>th</sup> February 2016. Even if there exists “an ILO Convention and Recommendation on Retirement”, the claimant did not indicate to this Court what its provisions are and how these provisions authenticate all he pleaded in his statement of facts. Certainly, the testimony of the claimant in his two depositions cannot be proof enough of what “an ILO Convention and Recommendation on Retirement” stipulates. It is, therefore, my finding and holding that the claimant did not prove the existence of “an ILO Convention and Recommendation on Retirement” to enable him rely on same as proof of any of his claims hinged on it.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I now proceed to the claimant’s reliance on “the usual customary practice and procedure of the defendant”. I indicated earlier the paragraphs of the pleadings and depositions that the claimant relied on as proof of this customary practice and procedure. The rule is that evidence of customary practice (and customary procedure) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in<i> Queen v. Chief Ozogula</i> [1962] WNLR 136, <i>Adeyemi & ors v. Alhaji Shitu Bamidele & ors</i> [1968] 1 All NLR 31, <i>Richard Ezeanya & ors v. Gabriel Okeke & ors</i> [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt.388) 142 at 165 and <i>Orlu v. Gogo-Abite</i> [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The contention of the claimant, however, is that paragraph 10 of the DW’s statement on oath of 31<sup>st</sup> January 2014 is the needed corroborative evidence to authenticate his proof of “the usual customary practice and procedure of the defendant” as well as Exhibit C8. I already reproduced what the said paragraph 10 states. In it, the defendant only admitted that the claimant was a member of PENGASSAN and held various positions in the union. The claimant was a senior staff hence the pleading in paragraph 7 of his statement of facts that he was a member of PENGASSAN and even held various positions. The law, however, is that evidence of membership of a senior staff trade union cannot be verbal or by the admission of the opposing party, even if such admission is in the pleadings. It has to be documentary, which the claimant did not provide to this Court. See <i>Aghata N. Onuorah v. Access Bank Plc</i> [2015] 55 NLLR (Pt. 186) 17. What this means is that the claimant cannot rely on the fact of his membership to claim any entitlement; nor the admission of the defendant be the corroborative proof needed to establish “the usual customary practice and procedure of the defendant”; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As to whether Exhibit C8 is the corroborative evidence (note as I indicated earlier that under cross-examination, the claimant testified that Exhibit C8 is an example of the implementation of the customary practice he relies on), in stating that “…the following package was agreed to be applied to those that will be released in 1999”, Exhibit C8 is clearly a one-off document meant only for those to be released in 1999. It cannot, therefore, be evidence (corroborative or not) of “the usual customary practice and procedure of the defendant”; and I so find and hold. Additionally, Exhibit C8 cannot be the basis for the claim for of N89,235,712.50 <i>ex gratia</i> as the claimant stated under cross-examination and which he claimed is based on custom; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">What all this means is that the claimant has not proved the existence of “the usual customary practice and procedure of the defendant” as to have any of his claims given on that basis. To the extent that reliefs 1, 2, 3 and 4 are all hinged on “the usual customary practice and procedure of the defendant”, they cannot be granted. I must point out here that I held earlier that to the extent the defendant “voluntarily” retired the claimant without notice, the “voluntary” retirement was wrongful. It is only in this sense that relief 1 is grantable; and I so find and hold. On the contention of the claimant that his “voluntary” retirement is wrongful, unlawful and illegal because it is contrary to “the usual customary practice and procedure of the defendant”, relief 1 is accordingly not grantable; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In holding that the claimant’s “voluntary” retirement was wrongful since it was involuntary and without notice, the question is the measure of damages, though the claimant did not even ask for damages. However, the Supreme Court in<i> Ekeagwu v. The Nigerian Army</i> [2010] LPELR-1076(SC); [2010] 16 NWLR 419 per His Lordship Onnoghen, JSC reminded us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are: whether the termination/dismissal/retirement of the plaintiff is wrongful; and the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful. The case of <i>British Airways v. Makanjuola</i> [1993] 8 NWLR (Pt. 311) 276 at page 288 then held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If the former, the quantum of damages may be the employee’s salary in lieu of notice; but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice. See <i>Olufemi Amodu v. Epesok Paper Mill Limited</i> unreported Suit No. NICN/LA/304/2013 the judgment of which was delivered on 22<sup>nd</sup> June 2016, where this Court applied <i>British Airways v. Makanjuola</i>.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I already held that the retirement of the claimant was wrongful as it was involuntary and without notice. This means that ordinarily the measure/quantum of damages is salary in lieu of notice. The defendant had argued that it paid the claimant 6 months’ pay in lieu of notice, which sum amounted to N14,277,714.00; and that even if his retirement was involuntary, in accepting the payment in lieu the claimant had waived any right to complain against his retirement. The claimant under cross-examination acknowledged receiving the sum of N14,277,714.00 as payment in lieu of notice. On the authority of <i>British Airways v. Makanjuola</i>, therefore, the payment of N14,277,714.00 is the measure of damages had the claimant asked for damages. This means that in this regard, the claimant really has no case at all’ and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any event, in not returning the sums paid to him by the defendant, the claimant must be read to have accepted the fact of his involuntary retirement. The law is that once an employee accepts payment after his employment is terminated, it is late in the day for him to complain that his employment was not properly determined. See <i>Ekeagwu v. Nigerian Army</i> [2006] 11 NWLR (Pt. 991) 382 and <i>Osaye v. The Honda Place Limited</i> [2015] 53 NLLR 51. Additionally, <i>Julius Berger (Nig.) Plc v. Nwagwu</i> [2006] 12 NWLR (Pt. 995) 518 CA held that where an employee receives his terminal benefits after his employment is brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined because the acceptance of payment by the employee renders the determination mutual. See also <i>Morohunfola v. Kwara College of Technology</i> [1990] 4 NWLR (Pt. 145) 506 SC, <i>Adeniyi v. Governing Council of Yaba College of Technology</i> [1993] 6 NWLR (Pt. 300) 426; [1993] 7 SCNJ (Pt. II) 307, <i>John Holt Ventures Ltd v. Oputa</i> [1996] 9 NWLR (Pt. 470) 101 CA, <i>Iloabachie v. Phillips</i> [2002] 14 NWLR (Pt. 787) 264 CA, <i>Etim Okon Ante v. University of Calabar</i> [2001] 3 NWLR (Pt. 700) 231 and <i>Umoh v. ITGC</i> [2004] 4 NWLR (Pt. 703) 281 CA, which held that where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract was not validly and properly determined. It is, therefore, my finding and holding that the claimant thereby accepted his retirement though it was involuntary.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I must also add here that in reliefs 3 and 4, the claimant is claiming for redundancy, which he put at N61,036,000.00, while at the same time claiming for salaries, allowances and benefits in kind for the remainder of years (4 years) he had to mandatorily retire. Conceptually, an employee cannot claim for redundancy (on the one hand) and salaries, allowances and benefits in kind (on the other hand). See <i>Isheno v. Julius Berger Nig. Plc</i> [2003] 14 NWLR (Pt. 840) 289, which held that redundancy does not carry along with it any other benefits except those benefits enumerated by the terms of contract to be payable to an employee declared redundant. The case went on to hold that no employee is entitled to both retirement and redundancy benefits. <i>PAN v. Oje</i> [1997] 11 NWLR (Pt. 530) 625 CA on the other hand held that redundancy benefits do not include gratuity benefits. See also <i>Shell Pet. Dev. Co. (Nig.) Ltd v. Nwawka</i> [2003] 6 NWLR (Pt. 815) 184, <i>Nigerian Society of Engineers v. Mrs. Bimbo Ozah</i> [2015] 64 NLLR Pt. 225 1 at 34 – 35, which cited with approval the case of <i>PAN v. Oje</i> and this Court’s decision in <i>Mr. Mohammed Dungus & ors v. ENL Consortium Ltd</i> [2015] 60 NLLR (Pt. 208) 39. So apart from basing his claim of redundancy on the unfounded “the usual customary practice and procedure of the defendant”, the combined claim for redundancy, salaries, allowances and benefits in kind at one and the same time is fatal to the claimant’s case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Reliefs 5, 6 and 7 are for salaries, allowances and benefits in kind for the balance of 4 years that the claimant would have worked if he were not involuntarily retired by the defendant. These claims can only be grantable if my holding was that the involuntary retirement was unlawful and illegal. The fact that I held it to be merely wrongful since it was without notice and that the claimant was paid N14,277,714.00 in lieu of notice, the wrongfulness of the retirement had been cured; as such there is no longer any basis for the claims for salaries, allowances and benefits in kind for the 4 years the claimant would have worked had he not been retired by the defendant. Reliefs 5, 6 and 7 are accordingly not grantable. In any event, having to hinge the unlawfulness and illegality of his retirement on “the usual customary practice and procedure of the defendant” and “good and international labour best practice”, both of which were not proved (as I held earlier), means that the claimant did not even prove the very basis upon which reliefs 5, 6 and 7 can be considered and granted. Note that under cross-examination, the claimant confirmed paragraph 54 of his deposition of 17<sup>th</sup> December 2012 and then testified that it is a combination of both customary practice and his conditions of service that gave rise to the sums he claimed therein. He went on to acknowledge that the customary practice is why he has most of the items as per the said paragraph 54. Reliefs 5, 6 and 7 accordingly fail.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant abandoned relief 8 in virtue of this Court’s decision in <i>Mr. Kurt Severinsen v.</i><i> Emerging Markets Telecommunication Services Limited</i><span lang="EN-GB"> [</span>20<span lang="EN-GB">12]</span><span lang="EN-GB"> </span><span lang="EN-GB">27</span> NLLR (Pt. <span lang="EN-GB">78</span>) <span lang="EN-GB">374 NIC. The relief accordingly is hereby ruled abandoned.</span><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the whole, the claimant’s case in the main fails. Only relief 1 succeeds, and this is only to the extent that “the retirement of the claimant by the defendant on 28<sup>th</sup> September 2011 before the mandatory age of retirement and without notice is involuntary, and is therefore wrongful”. I so declare. This declaratory claim aside, all other reliefs of the claimant fail and so are accordingly dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This leaves out the defendant’s counterclaim, to which I now proceed. The defendant’s counterclaim can broadly be put as claims for N38,052,678.40 being the total outstanding and unpaid sum due to and retained by the claimant in respect of various unamortized allowances, loans, costs and indebtedness, comprised of sums specifically owing and due from the claimant to the defendant; N1,041,666.70 being the prorated monthly rent paid on the official residence given to the claimant by the defendant; US$1,365.52 (or its Naira equivalent) being the lease charges for the family car, Toyota Corolla 1.8ltr Reg. No. HU 445 EKY; a mandatory injunction compelling the claimant to deliver up the official residence with all the furniture and other household items therein; a mandatory injunction compelling the claimant to deliver up possession of the family car Reg. No. HU 445 EKY; exemplary damages in the sum of N100,000,000.00; and pre- and post-judgment interest.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For the claims for N38,052,678.40 as unamortized allowances, loans, costs and indebtedness and US$1,365.52 (or its Naira equivalent) being the lease charges for the family car, the defendant relied on clause 15(d) of Exhibit C2, the conditions of service. I already held that the retirement of the claimant by the defendant was involuntary, it not being of the volition of the claimant. This being the case, can the defendant even make these claims? DW under cross-examination testified that it is the action of the defendant in retiring the claimant that activated the repayment of the sum referred to in paragraph 54(c)(i) of his deposition. DW went on that as per paragraphs 74 – 102 of his deposition, none of the sums indicated therein was deducted while the claimant was in service. That they only became due under the conditions of service upon the retirement of the claimant. If the claimant had not been retired by the defendant, the question of the claimant enjoined to pay off these sums will not have arisen. The evidence before the Court is that while in service, there was no obligation on the claimant to pay any of these sums. The obligation to pay only arose as a result of the retirement of the claimant by the defendant. Is it not, therefore, a question of the defendant eating its cake and having it if allowed to benefit from its act of wrongly retiring the claimant? I think so. The principle which disallows an employer from benefiting from his wrongdoing can be seen in <i>OSHC v. Shittu</i> [1994] 1 NWLR (Pt. 321) 476 CA. The case held that where an 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 employer’s 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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any case, in these claims the defendant continued payment of the rental charges even after the defendant discovered that the claimant had overstayed his welcome. For instance, it is the case of the defendant that it provided seven (7) security guards to the claimant’s personal family house at Ezekiel Evor Road, Peace Estate, Ogidan, Off Lekki Epe Express Way, Lekki, Lagos (“Family House”) at a cost of N74,768.25 per security guard per month, which amounts to a total cost of N523,377.75 per month for the seven (7) Security guards. Also, the defendant had argued that despite the claimant’s retirement since 30<sup>th</sup> September 2011, and the expiration on 31<sup>st</sup> March 2012 of the six (6) months period in which the claimant is entitled to retain the use and enjoyment of the family car in accordance with clause 15(d) of the conditions of service, the claimant has wrongfully retained the Toyota Corolla 1.81tr family status car, thereby making the defendant continue to pay the lease charges for the said car and the driver at the monthly rate of US$1,365.52. So when the defendant discovered that the claimant overstayed his welcome in this regard, why did it not just stop paying the monthly charges for security guards and the lease rentals for the family car? The employer must be read to have condoned the acts of the claimant. The rule is that an employer who upon the knowledge of an infraction by an employee chooses to condone must be held to it. See <i>Ekunda v. University of Ibadan</i> [2000] 12 NWLR (Pt. 681) 220 CA, <i>ACB Plc v. Nbisike</i> [1995] 8 NWLR (Pt. 416) 725 CA, <i>Nigerian Army v. Brig. Gen. Maude Aminu Kano</i> [2010] 1 MJSC (Pt. I) 151 and <i>Lawrence Idemudia Oborkhale v. LASU</i> [2013] 30 NLLR (Pt. 85) 1 NIC. It is accordingly my finding and holding that counterclaims a)(i) – (vi) and b) i.e. the claims by the defendant from the claimant for N38,052,678.40 as unamortized allowances, loans, costs and indebtedness and US$1,365.52 (or its Naira equivalent) being the lease charges for the family car have been condoned and so are not recoverable. They are accordingly dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Counterclaim c) is for an order of mandatory injunction compelling the claimant to deliver up to the defendant possession of the official residence, a 5 bedroom house known as Gulf of Guinea Lodge, located at No. 8 Sakete Close, off Cairo Street, Wuse 2 Abuja, together with all the furniture and other household items therein provided by the defendant. Under cross-examination, the claimant testified and acknowledged that he was currently occupying a house known as Gulf of Guinea Lodge at No. 8 Sakete Close, off Cairo Street, Wuse II, Abuja; and that said Wuse house is his official residence given to him by the defendant. The claimant’s rationalization for still staying in the house is that he believes he is still a staff of the defendant. The claimant also testified and acknowledged that he turned 60 years on 24<sup>th</sup> August 2015. Both parties are agreed that the mandatory retirement age is 60 years. Aside from the false belief of the claimant that he is still a staff of the defendant, the claimant has clocked the retirement age of 60 years since last year. The claimant has no legal, rational or logical basis to continue to occupy the official residence given to him by the defendant. He must deliver possession of the said residence forthwith to the defendant. The defendant’s counterclaim c) succeeds and is hereby granted.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Counterclaim d) is for an order of mandatory injunction compelling the claimant to deliver up possession of the Toyota Corolla 1.8 family car with registration No. HU 445 EKY to the defendant. For the reasons given regarding counterclaim c), counterclaim d) succeeds and is hereby granted. Accordingly, the claimant must deliver up possession of the said family car to the defendant forthwith.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Counterclaim e) is for exemplary damages in the sum of N100,000,000.00. The justification provided by the defendant for the award of this counterclaim is that from the facts and circumstances of this case, the claimant’s conduct is blameworthy as he seeks to unjustly enrich himself by filing a lawsuit against the defendant to make baseless claims despite the fact that he had collected the sum of N14,277,714.00 as 6 months’ salary in lieu of notice and the sum of N89,235,712.50 as voluntary retirement gratuity, which is in excess of his gratuity entitlement, and has also been collecting monthly pension in the sum of N1,204,682.00 from the defendant. This is not good enough justification for the award of exemplary damages as prayed for by the defendant. Counterclaim e) accordingly fails and is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Counterclaim f) is for pre-judgment interest on the various sums claimed at the rate of 21% from 1 April 2012 until judgment and post-judgment interest thereafter at the rate of 10% until final payment of the entire judgment sum. I did not award any monetary sum; as such counterclaim f) fails and so is dismissed. In any event, this Court does not award pre-judgment interest. See<i> Mr. Kurt Severinsen v.</i><i> Emerging Markets Telecommunication Services Limited</i><span lang="EN-GB"> [</span>20<span lang="EN-GB">12]</span><span lang="EN-GB"> </span><span lang="EN-GB">27</span> NLLR (Pt. <span lang="EN-GB">78</span>) <span lang="EN-GB">374 NIC, which was cited by counsel to the claimant when he abandoned the claimant’s relief 8. I thought learned senior counsel would take a cue from this and abandon the defendant’s counterclaim f); but he did not.</span><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For the avoidance of doubt, the claimant’s case in essence fails. Only relief 1 succeeds in the only part earlier indicated; and the defendant’s counterclaims fail except for counterclaims c) and d), which are granted. Accordingly, the judgment of this Court is only in the following terms –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l30 level1 lfo35"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->It is hereby declared that “the retirement of the claimant by the defendant on 28<sup>th</sup> September 2011 before the mandatory age of retirement and without notice is involuntary, and is therefore wrongful”.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l30 level1 lfo35"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->All other claims of the claimant fail and are accordingly dismissed.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l30 level1 lfo35"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of mandatory injunction is hereby granted the defendant wherein the claimant shall forthwith (but not later than a week from the date of this judgment) deliver up to the defendant possession of the official residence, a 5 bedroom house known as Gulf of Guinea Lodge, located at No. 8 Sakete Close, off Cairo Street, Wuse 2 Abuja, together with all the furniture and other household items therein provided by the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l30 level1 lfo35"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of mandatory injunction is hereby granted the defendant wherein the claimant shall forthwith (but not later than a week from the date of this judgment) deliver up to the defendant possession of the Toyota Corolla 1.8 family car with registration No. HU 445 EKY to the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l30 level1 lfo35"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->All other counterclaims of the defendant fail and so are dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>