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<p class="MsoNormal" style="margin-bottom: 0.0001pt;"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Femi Idowu for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">O.C. Ofoegbu with Michael Ogunjobi and Ifeoluwa Fatoki Miss for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant commenced this suit by his <i>General Form of Complaint </i>on 21/2/13 and by his amended <i>General Form Complaint </i>dated and filed on 14/2/14 sought the following reliefs -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">1. The sum of =N=8,800,000.00 being the Claimant's gratuity benefits for the 12 years (October 1993 to October 2005) that Claimant had served the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">2. Interest on the sum of =N=8,800,000.00 at the rate of 19% per annum from November 2005 (being the date from which the Claimant became entitled to be paid his gratuity) up till the date the Judgment in this suit is fully satisfied by the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">3. The sum of =N=10,000,000.00 being general damages for the loss and damage suffered by the Claimant as a direct and foreseeable result of the Defendant's neglect and/or refusal to pay the Claimant the sum of =N=8,800,000.00 being the Claimant's gratuity benefits for the 12 years (October 1993 to October 2005) that Claimant had served the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">4. The sum of =N=600,000.00 being otherwise unnecessary legal expenses that the Claimant was forced to incur as a result of the Defendant's refusal to pay the Claimant's gratuity to him.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant filed along with his Complaint statement of claim and all other frontloaded processes as required by the Rules of Court. The Defendant filed its amended statement of defence on 8/8/14. It also filed along with the list of witness, Defendant's witness statement on oath, list and copies of documents to be relied on at trial.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The trial of this case commenced on 17/3/14 and continued on 15/10/14 when the Claimant testified as <i>CW1, </i>adopted his witness statement on oath dated 14/2/14 and tendered 12 documents as exhibits. The documents were admitted as exhibits and marked as <i>Exh. C1-Exh.C12. </i>The case of the Claimant is for payment of his gratuity benefits for the period of 12 years (October 1993 to October 2005) when he worked with Nigerian Intercontinental Merchant Bank Limited. It was the case of the Claimant that sometime in October 2005, four Banks merged and became Intercontinental Bank; that in order to create a level playing field between the employees of the other Banks involved in the merger; that the employment of all the staff had to be terminated; that subsequently, the terminated staff were given new letters of appointment along with the staff of the other Banks involved in the merger, thereby entitling them to gratuity benefits from the former employment; that on the 1/8/07 he received an <i>Internal</i> <i>Memo</i> stating that his total gratuity benefit as at 31/10/10 was =N=8,800,00.00 (Eight Million, Eight Hundred Thousand Naira); that in the said memo of 1/8/07, he was given two options to invest his gratuity benefits to wit - a. Invest in Intercontinental Bank shares given the enormous potentials of the stock and its relative low price which made it the best buy or b. Invest in termed deposit with Intercontinental Bank Plc. and that pursuant to the options on the investment, the Claimant authorized the Defendant to use his gratuity benefits to purchase Intercontinental Bank shares for him.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination the Claimant testified that he was advised in 2007 that his gratuity was =N=8.8 Million only; that he did not authorize the Defendant to invest the said amount on my behalf; that he executed <i>Exh. C3</i> authorizing Defendant to buy Shares for him; that he received advise on 2/1/08 that Shares were bought for him and that <i>Tropics</i> <i>Securities</i> would manage the Shares they bought for him; that did not protest; that he protested against <i>Exh. C7</i> because there were discrepancies between the memo o<b>f </b>2/1/08<b> – </b><i>Exh. C3</i> and 4/2/11 <i>Internal Mail</i> which stated that he has only 209,000 units of Intercontinental Bank Shares; that he preceded to <i>Central Security Clearing System Ltd</i> the depository for all Shares and on 13/7/11 the <i>CSCS</i> confirmed that there were no stocks of Intercontinental Bank in his name which debunked the claim of Defendant in their memo of<b> </b>2/1/08 and Intra Mail of 4/2/11; that he has not demanded for his Share Certificates from Defendant because Shares traded in the secondary market are dematerialized and are not represented by Share Certificates; that he did not comply with <i>Exh.</i> <i>C12</i> because he is not the owner of the Shares; that from the report available to him the price of Intercontinental Bank Share in 2007 was about =N=27.00 per unit; that no Shares were bought for him and that he does not when the Shares of Intercontinental Bank fell. Witness added that he made demand for payment of his gratuity on 11/8/11 from Defendant; that he did not know the value of <i>Intercontinental Bank</i> Shares since none was bought for him; that it was not because the price of Intercontinental Bank fell that he asked for his gratuity and that this was made clear in his memo to the Managing Director of Defendant dated 11/8/11.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On 1/12/14, the Defendant opened its case and called one Nyema Dike as its <i>DW1</i>. On 23/2/15, the witness adopted his witness deposition made on 11/8/14 as his evidence in chief and tendered 4 documents. The documents were admitted without objection and marked as <i>Exh. D1-Exh. D4. </i>The case for the Defendant as deduced from the pleadings filed are that sequel to the merger of the four Banks in 2005 and the termination of appointment of all the staff of the former Banks, the Claimant became entitled to his gratuity benefits, having worked with the defunct <i>Nigeria Intercontinental Merchant Bank Limited</i>; that by an <i>Internal</i> <i>Memo</i> dated the 1/8/07, the Defendant informed the Claimant that his gratuity benefit was =N=8,800,000.00 (Eight Million, Eight Hundred Thousand Naira). In the same Memo, the Claimant was informed that he has an option to invest in <i>Intercontinental</i> <i>Bank</i> shares given the enormous potentials of the stock and its relative low price which makes it the best buy or invest in termed deposit with Intercontinental Bank Plc; that by specific documentary instructions, the Claimant authorized the Defendant to invest in Intercontinental Bank shares given the enormous potentials of the stock' that the said instructions were carried out; that furthermore, the Defendant informed the Claimant by its memo of 10/8/11that shares have been purchased for him and registered in the name <i>“Intercontinental Bank Gratuity/Oladimeji Ogunlana”</i>, though the Claimant contends that his instruction is that the shares be purchased in his name only. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination, <i>DW1</i> stated that he tendered 4 documents today for the Defendant; that those are the documents the Defendant is relying on; that he is not a staff of <i>Legacy Intercontinental</i>; that he was not a staff of Intercontinental Bank Plc. as at 2005; that he joined Access Bank Plc. on 3/12/12; that he is aware that this matter was being handled by Human Capital Department of Access Bank before now; that he does not work in the Human Resources Department; that he got information on facts deposed to in his Statement on Oath from documents he received from Human Resources Department; that <i>Exh.</i> <i>C3</i> is the Investment Form referred to <i>Exh. C1</i>; that <i>Exh. C3</i> is the Claimant’s instruction on what should be done with his gratuity; that by <i>Exh. C3</i> the investment should be in the name of Oladimeji Ogunlana; that Claimant did not give any instruction to Access Bank in the name – “Intercontinental Bank Gratuity”; that he does not have any other written instructions aside from <i>Exhibit D1 – Exhibit D4</i> he already tendered; that Intercontinental Bank Plc. calculated Claimant’s Gratuity to be =N=8,800,000.00 the sum was not paid into Claimant’s Account by the Defendant; that he believed Defendant paid =N=8,800.000 to <i>Tropics Securities</i> for the purchase of shares for the Claimant; that he has evidence of that belief (referring to refer <i>Exh. D3</i>); that he does not have proof of payment of the said sum of =N=8,800.000.00; that there is no document before the Court showing that the Claimant was informed that his Shares would be jointly managed with those of other staff; that he does not have a letter from <i>Tropics Securities Ltd</i> to the Claimant requesting to open his CSCS Account for the purchase of the said Shares.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">At the close of trial, learned Counsel on either side filed their final written addresses. The 30 page final written address of the Defendant was filed on 20/4/16. In it learned Counsel set down the following 2 issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether this Court has jurisdiction to hear and determine the suit as presently constituted and to grant the reliefs sought. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether there is evidence in support of the 2nd Amended Statement of Facts.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant has proved his case on the preponderance of evidence to entitle him to the reliefs sought in his claim before the Honourable Court.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On the day this matter was slated for adoption of final written addresses, learned Counsel to the Defendant had brought a Notice of Preliminary Objection challenging the jurisdiction of this Court to hear and determine this matter. The Court had at that time directed that the issues raised be incorporated in the final written address of Counsel since issue of jurisdiction could indeed be raised at any stage of the proceedings. The directive of Court was followed by Counsel.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Now arguing issue 1, learned Counsel argued that the Court lacks the requisite jurisdiction in this case citing <i>Madukolu v. Nkemdikim (1962)2 SCNLR 341</i>; that the issue raised and canvassed in the suit borders on the purchase of the shares of InterContinental Bank with the gratuity of the Claimant; that by section 284(1) and section 294 of the <i>Investment and Securities Act, 2007 </i>the jurisdiction over this case is vested on <i>Investment and Securities Tribunal. </i>Referring to the decision of <i>Kola-Olalere J </i>of this Court in <i>NICN/LA/322/2012 Olayinka Olusola Adebowale v. Access Bank Plc, </i>learned Counsel prayed the Court to decline jurisdiction in this case and dismiss same.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 2, Counsel argued that he objects to the adoption of the Claimant's witness statement on oath dated 14/2/14 and adopted on 17/3/14 as evidence in support of the 2nd Amended statement of facts dated and filed on 2/7/14; that Claimant not having filed any witness statement on oath in support of his 2nd Amended statement of facts dated and filed 2/7/14, same is deemed abandoned. Counsel referred to <i>Order 3 Rule 4, National Industrial Court Rule, 2007, S. 131, Evidence Act, 2011 Popoola Bamgbegbin & Ors. v. Jimoh Oriare (2009)13 NWLR (Pt. 1158) 370 </i>and prayed the Court to hold that the Claimant has not discharged the evidential burden required of him.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Respecting issue 3, Counsel argued that there is uncontroverted and unchallenged evidence before the Court that the Claimant authorised the Defendant to invest his gratuity on shares; that the Defendant carried out that instruction; that the case of the Claimant had never been a demand for payment of his gratuity benefits but rather the procedure and probably breach in the handling of the purchase of the <i>Intercontinental Bank </i>Shares and that it will be inequitable and unjust to allow the Claimant to wriggle out of his contractual obligation to the Defendant on the mere ground that the shares purchased for him bore the acronym ''Intercontinental Bank Gratuity/Oladimeji Ogunlana''. Counsel cited <i>Owners MV Gongola Hope v. SC (Nig.) Limited (2007)15 NWLR (Pt.1056) 189 at 215, Achu v. C.S.C Cross River State (2009)3 NWLR (Pt. 1129) 475 at 500 & University of Ilorin v. Oduleye (2006) LPELR-11708 (CA) </i>and submitted that the Claimant must not be allowed to approbate and reprobate at the same time. Secondly, Counsel submitted that assuming without conceding that the purchase of the shares was done under an unlawful scheme, the Claimant cannot renege on his instruction as the Defendant had taken steps by utilising the gratuity benefits to purchase the shares on behalf of the Claimant and that the Claimant is estopped thereby, citing <i>Humphery v. Harding Osuji (1998)10 SCNJ 75 at 82.<o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On a claim for pre-judgment interest, learned Counsel submitted that such interest is not granted as a matter of course as same qualifies for a claim for special damages which must be pleaded and specifically proved. Counsel placed reliance on <i>FCMB v. Akanimo (2007)12 CLRN 20 at 30 & Himma Merchants Limited v. Aliyu (1994)5 NWLR (Pt. 347) 667. </i>Learned Counsel submitted pre-judgment interest not having been proved in this case, the Court should refuse and dismiss same. On claim for legal expenses and general damages, learned Counsel argued that the Defendant was not a party to the contract between the Claimant and his Solicitors to pay legal fees of =N=600,000.00 and that the amount claimed is speculative. Citing <i>Intercontinental Bank Limited v. Brifina Limited (2012) LPELR-SC/67/2004 </i>Counsel submitted that the legal fees sought to be recovered falls within the category of special damages which must always be strictly pleaded and proved. He urged the Court to refuse same. Finally learned Counsel prayed the Court to dismiss the Claim's claim against the Defendant with substantial cost.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The final written address of the Claimant was dated and filed 21/4/16. In it, Counsel set down the following issues for the just determination of this case - <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether this Honourable Court has jurisdiction to hear and determine this suit?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Is there a valid defense in this suit?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Did the Defendant pay the Claimant’s =N=8,800,000.00 gratuity to him by using the said gratuity to purchase Intercontinental Bank Plc. shares in the name of “OLADIMEJI OGUNLANA” exclusively as instructed by the Claimant in exhibit C3?. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">4. Is the Claimant entitled to the claims endorsed <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 1, learned Counsel arged that by paragraph 26 of the statement of facts that the Claimant instituted this case following refusal of the Defendant to pay his gratuity benefits; that paragraph 27 also attested to the basis of the Claimant's claim and that on the authority of <i>Tukur v. Gongola State (1989)1 NWLR (Pt. 117) 517 </i>it is a fundamental principle that jurisdiction over a case is determined by the Plaintiff's claim. Counsel further referred to Section 254(1)(k), <i>Constitution of the Federal Republic of Nigeria, 1999, as amended</i> and submitted that by the decision in <i>Tukur v. Government of Gongola State </i>and the statement of facts filed by the Claimant this Court has the requisite jurisdiction to hear and determine this case. Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 2, learned Counsel argued that from the evidence led by <i>DW1, </i>it is apparent that the witness did not participate in the transaction which is the subject of this suit; that the information contained in the witness deposition of <i>DW1</i> was based on what he was told by the Human Resources Department of the Defendant and that the evidence of <i>DW1 </i>was hearsay evidence referring to <i>Sections 126 & 37, Evidence Act, 2011, Achora v. A.G. Bendel State (1990)7 NWLR (Pt. 160) 92 & Zaki v. Magayaki (2002) FWLR (Pt. 135) 789. </i>Counsel argued further that hearsay affidavit evidence is inadmissible except the source of information or belief is disclosed citing <i>Adebayo v. Brown (1990)6 SCNJ 1 & S. 115(4), Evidence Act, 2011. </i>Counsel submitted that all the evidence of <i>DW1 </i>were mere hearsay and hence inadmissible and that already admitted, he urged the Court to discountenance and disregard same. Counsel submitted further that once the evidence of <i>DW1</i> is expunged what is left is the unchallenged and uncontroverted evidence of the Claimant; that evidence not challenged is deemed admitted , citing <i>Military Governor of Lagos State v. Adeyiga (2012)5 NWLR (Pt. 1293) 291. </i>Respecting the Defendant's contention that there is absence of witness deposition of the Claimant relating to the 2nd amended statement of facts Counsel submitted that by <i>Order 4 Rule 4, National Industrial Court Rules, 2007</i> the expected deposition does not need to the statement of facts as argued by the Defendant; that the said witness statement on oath was admitted without objection and that the Defendant having cross examined the Claimant on the said deposition it is late in the day to object to the document and must be deemed to have waived its right to do so. Counsel cited <i>Auto Import Export v. Adebayo (2005)19 NWLR (Pt. 959) 44 & Iga v. Amakiri (1976)10 NSCC 610</i> Counsel urged the Court to resolve this issue in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">With regards to issue 3, learned Counsel reviewed the facts f the case and submitted that the Defendant did not purchase any shares of Intercontinental Bank Plc in the name of ''Oladimeji Ogunlana''. Counsel referred to <i>Exh. C6 </i>from CSCS which confirmed same; that by <i>Exh. C8, Exh. C9 & Exh. C10 </i>which the Defendant failed to respond to, the Defendant unwittingly admitted that it is yet to pay the Claimant his gratuity benefits citing <i>Trade Bank Plc v. Chami (2003)13 NWLR (Pt. 836) 158 (</i>which held that while social correspondences may be ignored business letters deserve to be answered and that failure to answer business letters amounts to an admission because what is asserted in the letter and is not denied is deemed admitted), <i>Zenon Petroleum & Co. v. Idrisiya (Nig.) Limited (2006)8 NWLR (Pt. 952) 221(</i>whild held that failure to respond to Claimant's Solicitors' letters was an admission of the detention of the trailers concerned) & <i>Gwani v. Ebule (1990)5 NWLR (Pt. 149) 201(</i>which held that failure of the Defendant to reply to letters written by the Claimant both personally and through his Solicitors constituted an admission of liability by the Defendant and lend credence to the case of the Claimant). Learned Counsel urged the Court to hold that the Defendant did not use the Claimant's gratuity to purchase the shares of <i>Intercontinental Bank Plc</i> in the name of <i>Oladimeji Ogunlana </i>exclusively as instructed by the Claimant in <i>Exh. C3.<o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Issue 4 is whether the Claimant is entitled to the claims endorsed in his 2nd amended statement of facts dated 1/7/14. With respect to the main claim, learned Counsel adopted his argument and submissions on issues 1 and 2. He prayed the Court to order payment to him of his gratuity in the sum of =N=8,800,000.00 by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On claim for interest, learned Counsel submitted that the basis for award of interest could be that the plaintiff has been kept out of his money for a period and the Defendant who had use of the money for himself ought to compensate the plaintiff for the deprivation citing <i>International Offshore Construction Limited v. S.I.N Limited (2003)16 NWLR (Pt. 845) 157 & Idakula v. Richards (2001) (Pt. 693) 111(CA). </i>Counsel added that by <i>Order 21 Rule 4 </i>of the Rules of this Court this Court is allowed to award post judgment interest while delivering Judgment. :earned Counsel urged the Court to award the interest as sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On claim for general damages, learned Counsel stated that this is within the discretionary power of the Court and that it is not quantifiable citing <i>Salau v. Araba (2004) All FWLR (Pt. 204) 88 & Framo Nigeria Limited v. Shaibu Daodu (1993)3 NWLR (Pt. 281) 372. </i>Counsel prayed the Court to award general damages to the Claimant for the loss suffered by him and to grant all his claims as sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On 20/4/16, learned Counsel to the Defendant filed a 13-page process titled <i>Defendant's Reply on Points of Law. </i>What the learned Counsel has done in this case by that process is to simply reargue his case by replying to each of the issues set down for determination by the Claimant. That is hardly the purport or necessary intendment of a reply address. the process filed has not served the purpose for which it is meant. It is not of any utility for the purpose of inclusion in this Judgment. I therefore discountenance same. However, it is imperative that I make a remark or two on the said reply on points of law. On page 2 of his Reply on Points of Law, learned Counsel to the Defendant had stated thus -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''The statement credited to His Lordship at page 13, paragraph 4.2.9 is denied as the Defendant's Counsel never had such a conversation with His Lordship. However, if the Claimant insists that His Lordship made such a statement that will amount(sic) the Honourable Court descending into the arena of conflict and indictment on the Honourable Court. We urge His Lordship to dismiss the assertion and dissociate the Honourable Court from such partial statement''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">I perused the final written address of the Claimant as filed and in particular page 13 of same. I note that there is no paragraph 4.2.9 on the said page 13. There is however paragraph 4.2.19 on the page. I read the whole of that page. I found nothing ascribed to me on that page. Indeed there could not have been any because I did not make any statement in the course of trial to warrant inclusion in final written address by any of the learned Counsel. The paragraph as quoted above from the reply on points of law by the Defendant makes neither meaning nor make sense within the context of this case, the final written address of the Claimant and indeed the whole case. Could it be some form of mix up by the learned Counsel? <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">This Judgment was adjourned 8/9/16 for delivery. As at the date of its adjournment on 8/6/16, the date for the commencement of annual vacation of Hon. Judges of this Court had not been fixed. Subsequently however and upon fixing the date for the commencement of annual vacation, the Hon President of this Court directed that Judgments must not be fixed to fall within the period of vacation. In order therefore to ensure that this Judgment is not caught by the 90 days rule for delivery of Judgment from the date of adoption of final written addresses and in compliance with the directive of the Hon. President of this Court, I directed that hearing notices be issued and served on learned Counsel on either side for this Judgment to be delivered today.</span><span style="font-size: 12.5pt;line-height:115%"><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">I have carefully read all the processes filed by learned Counsel on either side. I listened attentively and with understanding to the witnesses called at trial, watched their demeanor and the oral submissions of Counsel as well as reviewed and evaluated all the exhibits tendered and admitted in this case. Having done all this, I have come to narrow the issues for the just determination of this case to be mainly as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">1. Whether this Court has the requisite jurisdiction to hear and determine this case.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">2. Whether the Claimant has proved his case to be entitled to any or all the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left: 17.85pt; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 1, it is trite that jurisdiction is an essential integral part of a cause or matter. It determines whether a Court has the power to adjudicate on a case before it. It is either a Court has jurisdiction or it does not have. A Court cannot confer jurisdiction on itself. It is usually conferred by a statute. Once the jurisdiction of a Court is challenged, which challenge can indeed be at any stage, the issue becomes critical and must be resolved before any decision is taken or arrived at by the Court. The rational being that where a Court lacks jurisdiction whatever efforts it dissipates will tantamount to efforts in futility irrespective of the erudition or ingenuity of the Judge in the e<i>ntire trial</i>. In determining whether or not a Court is seised of jurisdiction over a cause or matter, a trial Court is enjoined to concern itself solely with the originating process and the statement of claim filed <i>vis-a-vis</i> the statute conferring jurisdiction on the Court. The submission of the learned Counsel to the Defendant is that the issues raised and canvassed in this suit border on the purchase of Intercontinental Bank Plc shares with the gratuity benefit of the Claimant and that same is within the jurisdiction on the <i>Investment and Securities & Investment Tribunal </i>by virtue of Section 284(1) & 294 of the <i>Investment & Securities Act, 2007. </i>Now what are the claims and the reliefs sought by the Claimant in this Court? By his <i>General Form of Complaint </i>filed on 20/2/13 the Claimant sought payment of the sum of =N=8,800,000.00 being his gratuity benefits for the 12 years (October 1993 to October 2005) he had served the Defendant; interest at 19% on the said sum; =N=10,000,000.00 as general damages and the sum of =N=600,000.00 being otherwise unnecessary legal expenses that he was forced to incur as a result of the Defendant's refusal to pay him his gratuity. Both the <i>National Industrial Court Act, 2006 </i>and the <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 </i>confer exclusive jurisdiction on this Court on labour, employment, industrial and related or matters connected therewith. No doubt such related matters include payment of salaries, benefits, allowances, pensions and gratuity. As if to remove doubt in the minds of any doubting Thomas, the <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 </i>specifically provides in Section 254C(1)(k) that -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> ''Notwithstanding the provisions of sections 251, 257, 271 and anything contained in this Constitution and in addition to such other jurisdictions as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> (k). relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The suit of the Claimant is for the payment of his gratuity as recited and from the constitutional provisions as stated, it is beyond argument that this suit is one of such that this Court is constitutionally empowered to adjudicate upon. I so find and so hold that this Court has jurisdiction over this case. Before I draw curtain on this point, it is imperative for me to comment on a decision of this Court cited by learned Counsel to the Defendant. Counsel had cited <i>Olayinka Olusola Adebowale v. Access Bank Nigeria Plc Suit No: NICN/LA/322/2012. </i>It was the argument of Counsel that the instant case and the case cited are on all furs and that this Court per <i>Kola-Olalere J </i>declined jurisdiction in similar circumstances. This submission is short of truth. This case and the authority cited are poles apart. The claims and the reliefs sought in the two cases are also completely different. Indeed on page 11 of that Judgment, my lord Kola-Olalere of this Court had found as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> ''However, the reliefs 3 to 12 as stated on the Complaint and reliefs C to L as contained in paragraph 24 of the statement of facts are on issues of repayment of share loans, fulfilling condition for award of share loans, right to sell shares, expunging the valued sum of share loan from claimant's indebtedness, selling of share at market price at termination of claimant appointment, the defendant not entitled to apply commercial rate to mortgage loan 2 and on interest rate in respect of the claimant's loans not to attract commercial rates''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Now His Lordship having reviewed the provisions of Section 284 of <i>Investment and Securities Act, 2007 </i>and <i>Section 254C(1), Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010</i> declined jurisdiction respecting reliefs 3-12 as sought. By the Claimant in that case. Can it be said that the instant case and that judicial authority are the same as submitted by learned Counsel to the Defendant? Did the learned Counsel cite this authority in good faith with a genuine belief that his case and the authority cited are the same as claimed? I certainly doubt that but then I would rather say nothing more on it. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Issue 2 is the determination of whether the Claimant has proved any of the reliefs sought. In the absence of any admission of facts alleged or asserted, the burden of proof remains on the Claimant in the instant case. This is also the state of the law in all civil causes and m<b>atters</b>. The law continues to remain that he who asserts must prove same. The proof must be by credible, cogent and admissible evidence. Failure by a party asserting to prove the claims sought will leave the Court with no option than to dismiss any such claims. The first relief sought by the Claimant is for the sum of =N=8,800,000.00 being the Claimant's gratuity benefits for the 12 years (October 1993 to October 2005) that Claimant had served the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Now what are the evidence led by the Claimant in proof of this head of claim? by paragraph 7 of his statement of claim and paragraph 7 of his witness statement on oath the Claimant asserted that on 1/8/07 he received a memo from the Defendant with a document attached stating that his gratuity benefits as at 31/10/05 was =N=8,800,000.00. <i>Exh. C2 </i>tendered by the Claimant and admitted without objection attested to the same fact as contained in paragraphs 7 of both the statement of facts and claimant witness statement on oath. It is worthy of note that <i>Exh. C2 </i>is the same as <i>Exh. D1 </i>tendered by the Defendant. From both exhibits, it is apparent that there is no dispute as to the entitlement of the Claimant to the sum of =N=8,800,000.00 as claimed by the Claimant. I so find and so hold. Now has the Defendant paid the said amount to the Claimant? The argument of the Defendant was that in accordance with the Claimant's instruction, it utilised same to purchase <i>Intercontinental Bank Plc</i> shares for the Claimant. See <i>Exh. D3. </i>The Defendant also alleged by <i>Exh. D4 </i>that 300,705 units of the shares were standing to the name of the Claimant in his <i>CSCS</i> account. To what extent is this assertion correct? The Claimant tendered <i>Exh. C6. </i>That exhibit was the report of request for stock position made by the Claimant to the <i>Central Securities Clearing Systems Limited. </i>That exhibit showed that the Claimant had no stock in his <i>CSCS</i> account. Again, I ask, is there any evidence of any shares purchased by the Defendant for the Claimant? I find no evidence of such. If at all, it must be on mere paper and does not translate to anything of value for all intents and purposes. In any event, this is a simple case for the payment of legitimately earned gratuity for a stated sum and which sum is not contested. There being no evidence of the payment of the sum of =N=8,800,000.00 being gratuity due to the Claimant for the 12 years he worked with the Defendant I order that the said amount be paid to him forthwith.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The second relief is for interest on the sum of =N=8,800,000.00 at the rate of 19% per annum from November 2005 (being the date from which the Claimant became entitled to be paid his gratuity) up till the date the Judgment in this suit is fully satisfied by the Defendant. Pursuant to <i>Order 21 Rule 4, National Industrial Court Rules, 2007, </i>I order that the sum due to the Claimant be paid with interest at the rate of 15% from the date of this Judgment until final liquidation. The third relief is for the sum of =N=10,000,000.00 being general damages for the loss and damage suffered by the Claimant as a direct and foreseeable result of the Defendant's neglect and/or refusal to pay the Claimant the sum of =N=8,800,000.00 being the Claimant's gratuity benefits for the 12 years (October 1993 to October 2005) that Claimant had served the Defendant. <span class="apple-style-span"><span style="color:#000099">General damages are damages which the law in its wisdom, presumes to flow automatically from the wrong inflicted on a claimant by a defendant from whom they are claimed and do not need or have to be specifically pleaded and strictly proved. They are compensatory in nature. See </span></span></span><i><span lang="EN-GB" style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";color:#000099;mso-ansi-language:EN-GB;mso-fareast-language: EN-GB">UBN Plc. v. Ajabule (2011) 18 NWLR (Pt. 1278) 152 SC; Husseni V. Mohammed (2015) 3 NWLR (pt. 1445) 100. </span></i><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";color:#000099;mso-ansi-language:EN-GB; mso-fareast-language:EN-GB">This is 2016. From the evidence led before me, the Claimant had become entitled to his gratuity as far back as 2005. In <i>Exh. C8, </i>a document dated 11/8/11 and headed <i>Subject: ReN8.8 M Gratuity Benefit for Year 1993 to 2005, </i>the Claimant had reason to appeal for the payment of the gratuity due to him stating that he had urgent financial obligations that had been long over due and that payment of the gratuity would go a long way to ameliorate his financial position. The circumstances of this case are such that call for some form of compensation to the Claimant. Under section 14 of the <i>National Industrial Court Act, 2006, </i>this</span><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings, concerning any of those matters avoided. This Court is also further empowered by the provision of Section 19(d), <i>National Industrial Court, 2006, </i>to award compensation or damages in any circumstances contemplated by the Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. Considering the foregoing, I order the Defendant to pay to the Claimant the sum of One Million Naira only as general damages/compensation for refusal/neglect in paying the said gratuity to the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span class="apple-style-span"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"; color:#000099">The final relief sought is for payment of the</span></span><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> sum of =N=600,000.00 being otherwise unnecessary legal expenses that the Claimant was forced to incur as a result of the Defendant's refusal to pay the Claimant's gratuity to him. What are the unnecessary legal expenses which the Claimant incurred resulting from the Defendant's refusal/neglect in paying the gratuity of the Claimant? The Claimant did not say. It is not for the Court to assume or for the Claimant to assume that the Court should know what those expenses are and their various heads. There being no proof of this head of claim, same is refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Finally and for the avoidance of doubt and for all the reasons as contained in this Judgment, -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. I hold that this Court has jurisdiction over this case being one for the payment of gratuity of the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. The Defendant is ordered to pay to the Claimant the sum of =N=8,800,000.00 being the Claimant's gratuity benefits for the 12 years (October 1993 to October 2005) that Claimant had served the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. I order the Defendant to pay to the Claimant the sum of One Million Naira only as general damages/compensation for the Defendant's refusal/neglect in paying the said gratuity to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. The claim for <span class="apple-style-span"><span style="color:#000099">the</span></span> sum of =N=600,000.00 being otherwise unnecessary legal expenses that the Claimant was forced to incur as a result of the Defendant's refusal to pay the Claimant's gratuity to him is refused and dismissed for lack of proof.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. The Defendant is to pay cost of this proceedings assessed at =N=100,000. 00.to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. The Judgment sum in this case, aside from the cost, shall attract interest at the rate of 15% per annum from the date of this Judgment until final liquidation.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The terms of Judgment shall be complied with within 30 days from the date of delivery.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpLast" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin: 0in 0in 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p>