Download PDF
<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><b><u><span style="font-family: "Comic Sans MS";mso-ansi-language:EN-US">Representation</span></u></b><span style="font-size:10.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US">:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:10.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US">Precious Kalu for the Claimant<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:10.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US">J. I. Ogamba with R. C. Obijuru (Miss), E. C. Diala (Mrs), M. C. Soronnadi, I. F. Dike and E. N. Ugwu for the Defendant<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"; mso-ansi-language:EN-US"> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:3.0in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-ansi-language:EN-US">JUDGMENT</span></u></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-ansi-language:EN-US"><o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">The Claimant commenced this suit by way of a Complaint on 30th March 2015 and claimed against the Defendant as follows:<o:p></o:p></span></p> <ol style="margin-top:0in" start="1" type="1"> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l0 level1 lfo1"><s><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">N</span></s><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">478,337.00 (Four Hundred and Seventy-Eight Thousand, Three Hundred and Thirty-Seven Naira) only, being outstanding/balance of the salary for the months of August 2012, September 2012, October 2012 and November 2012, which the Defendant ought to pay to the Claimant but failed to pay. <o:p></o:p></span></li> </ol> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><s><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">N</span></s><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">2,034,266.17 (Two Million, Thirty-Four Thousand, Two Hundred and Sixty-Six Naira, Seventeen Kobo) being outstanding/balance of the gratuity, which the Defendant ought to pay to the Claimant but failed to pay. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; line-height:normal;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><s><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">N</span></s><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">309,000.00 (Three Hundred and Nine Thousand Naira) being the one month salary in lieu of notice of termination of employment which the Defendant ought to pay to the Claimant but failed to pay. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><s><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">N</span></s><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">463,367.25 (Four Hundred and Sixty-Three Thousand, Three Hundred and Sixty-Seven Naira, Twenty-Five Kobo) being interest over the unpaid gratuity from January 2013 to 28<sup>th</sup> February 2015 at the rate of 10% per annum.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">The complaint was filed with the Statement of Facts, Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on, which were served on the Defendant. The Defendant entered conditional appearance on 14/5/2015 vide a motion for extension of time, and filed a Statement of Defence and other accompanying processes. Hearing commenced on 20/1/2016. The Claimant testified as CW1 and tendered the following documents as Exhibits:<o:p></o:p></span></p> <ol style="margin-top:0in" start="1" type="1"> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:110%; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit A</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">- Spring Bank Plc’s Offer of Appointment Letter dated 28<sup>th</sup> April, 2006.<o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:110%; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit B- </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">Enterprise Bank Plc’s Offer of Appointment dated 22<sup>nd</sup> October 2011. <o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:110%; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit C & C1</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">- Email print out and the covering certificate. <o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:110%; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit D – Letter acknowledging Claimant’s Resignation dated 30<sup>th</sup> November 2012.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE"><o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:110%; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit E & E1- E-mail correspondence dated 21/6/2012 and the covering certificate.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE"><o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">Exhibit F &F1- E-mail correspondence dated 11/1/2013 and the covering certificate <o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">Exhibit G - Solicitor’s letter dated 8<sup>th</sup> March 2013.<o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo2"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">Exhibit H- Letter dated 2<sup>nd</sup> October 2012.<o:p></o:p></span></li> </ol> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Kingsley C. Akujuobi, a Manager in the Defendant’s Human Resources Department testified as the DW1 and did not tender any document as Exhibit. However, Defendant’s Counsel obtained the leave of Court to raise his objection to the admissibility of Exhibit B. Hearing ended on 1/6/2016 Both parties were ordered to file their final written addresses in accordance with the rules of court. The Defendants’ counsel filed his address on 30/6/2016. Counsel for the Claimant filed his address on 20/10/2016. These were duly regularized and parties’ adopted their final written addresses on 1/11/2016. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">The Defendant’s Counsel formulated two issues for determination in his final address, as follows: <o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.75in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in; line-height:normal;mso-list:l3 level1 lfo3"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">Whether the onus of proof shifts to the Defendant until it has been proved by the Claimant with reliable evidence.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.75in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in; line-height:normal;mso-list:l3 level1 lfo3"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">Whether the Claimant is entitled to the reliefs sought in the circumstances of this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Regarding issue one; counsel contended that it is a cardinal principle that the burden of proof in a suit rests on the person who would fail if no evidence at all were given on either side. This burden does not shift to the Defendant until it has been proved by the plaintiff with reliable and credible evidence. Citing <b><i>Ansambe vs. B.O.N. LTD (2005) 8 NWLR (Pt. 928) 650, Amodu vs. Amode (1990) 5 NWLR (Pt. 150) 356</i></b> and Sections 131-133 of the Evidence Act, it is counsel’s contention that the Claimant in the extant case did not discharge the burden of proof cast on him owing to the fact that while the Claimant averred in pleadings that the Defendant owed him various sums of money, he did not tender any proof to substantiate the monetary claims. Also, counsel submitted that the Claimant’s allegations of being owed by the Defendant contained in paragraphs 5, 6, 9, 10, 12, 18, 19, 20, 21 and 22 of the statement of facts were denied in paragraphs 5, 10, 13-15 of the statement of defence with the Defendant showing the total amount the Claimant was entitled to, and paid. Counsel citing <b><i>Nwanu vs. Okoye (2010) LPELR 2116 SC </i></b>further submitted that having joined issues with the Claimant, the burden was placed upon the Claimant to prove the difference between what he claimed and what was paid to him by the Defendant. Again, counsel posited that the Claimant admitted in the Reply to the Statement of Defence that his monthly salary of <s>N</s>309,000.00 was paid from October, November 2011 to February, July, August, September, October 2012; and the Defendant does not need to adduce evidence in proof of these admitted facts. See <b><i>Atanda vs. Liasu (2012) LPELR 1966 2 SC</i></b>.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Furthermore, counsel argued that in Exhibit B tendered by the Claimant in proof of his averment that he was paid less than what was due him, clause 5 of the said exhibit reads that the “Bank reserves the right to review the salary structure based on the Bank policies or business exigencies.” It is counsel’s argument that this clause which formed the contract of employment between the parties in this case is the foundation of the Defendant’s self-sustaining model, in which staff including the Claimant had to achieve set targets to earn full salary. Similarly, counsel citing <b><i>INEC vs. Oshiomole (2008) 48 WRN 25 at 83</i></b>, submitted that Exhibit H is an authentic proof and an estoppel on the Claimant that the Claimant was aware of this model, and under cross-examination admitted that performance was directly related to remuneration. Counsel submitted further that having being aware of the workings of the self-sustaining model, which formed a part of his employment contract, the Claimant is bound by this term and cannot turn around and complain of its implementation, citing <b><i>Longe vs. First Bank (2010) 6 NWLR (Pt. 1189) 1</i></b>. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Again, it is counsel’s contention that Exhibits B, C and D, is germane in the determination of when the Claimant’s resignation took effect. Citing <b><i>WAEC vs. Oshionebo (2006) 12 NWLR (Pt. 994) 288</i></b>, counsel submitted that 12 November 2012, the date Exhibit D was received by the Defendant is the effective date of the Claimant’s resignation. More so, it was submitted by counsel that the Claimant failed to discharge the burden of proving his forced resignation, and Exhibit C did not indicate any force or pressure on the Claimant to resign but instead shows an amicable agreement for the Claimant to hand over. Also, counsel argued that Exhibit B is the benchmark of the contractual relationship between the parties because the Claimant’s employment lacks statutory flavour; and the said exhibit provided that either party may terminate this contract by giving one month notice or payment in lieu. Counsel argued further that the Claimant in face of his admitted ineptitude chose to resign and is not entitled to one month salary in lieu of notice of termination or any interest over unpaid gratuity. It is counsel’s argument that this option exercised by the claimant is in agreement with the general rule that an employee has a right to end his employment by resignation, citing <b><i>Faponle vs. UNILORIN Teaching Hospital Management Board (1991) 4 NWLR (Pt. 183) 43</i></b>. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Further, counsel argued that the Claimant’s averment that he was supposed to be paid <s>N</s>6,334,266.17 like other managers is immaterial because each contract is distinct from each other and extrinsic facts would not be used to interpret the contract between parties. He cited the case of <b><i>Cooperative and Commerce Bank Plc vs. Amadi Rose (1998) 4 NWLR (Pt. 544</i></b>). More so, counsel submitted that the onus of proof as to the manner the Defendant withheld the sum of <s>N</s>2,034,266.17 was not discharged by the Claimant; and more fatal is the inability to tender the pay slips and conditions of employment of those staff mentioned to show that they are similar to that of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">With respect to issue two, counsel referred the court to the case of <b><i>Edeani Nwavu vs. Okoye & Ors (2008) 18 NWLR 29, </i></b>where it was held inter alia that the person who asserts a fact must prove it. He argued that the Defendant joined issues with the Claimant on his pleadings on the reliefs claimed in this suit, shifting the burden of proof on the Claimant to prove his claim; which the Claimant failed to discharge by his inability to furnish relevant evidence. It is counsel’s submission that from the state of pleadings and evidence, the Claimant has been unable to prove that he is entitled to his claim. The court was urged by counsel to hold that the Claimant is not entitled to the reliefs sought in this suit and dismiss the entire claim.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span><span style="font-size:4.0pt; mso-bidi-font-size:8.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">In the Claimant’s final address, one issue was formulated for determination, to wit: <o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">Whether the Claimant has proven his claim to be entitled to the reliefs sought</span></i></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">In arguing this issue, counsel urged the court to expunge Exhibit H that was tendered by the Defendant through the Claimant from its record; owing to the fact that Exhibit H was not pleaded and/or frontloaded, and therefore came as a surprise to the Claimant, contrary to the rules of court. The basis of counsel’s position stems from the following authorities:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l2 level1 lfo4"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">1.<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">LANA vs. UNIBADAN (1987) 4 NWLR (Pt. 64) 245<o:p></o:p></span></i></b></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l2 level1 lfo4"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">2.<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">DIKE vs. NZEKA (1986) 4 NWLR (Pt. 34) 144<o:p></o:p></span></i></b></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l2 level1 lfo4"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><b><i><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">EMEGOKWUE vs. OKADIGBO (1973) 4 SC 113</span></i></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE"> <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Furthermore, counsel citing <b><i>Ezeonwu vs. Onyedi (1995) 3 NWLR (Pt. 438) 527</i></b>, submitted that this court ought not to have admitted Exhibit H into evidence, irrespective of the fact that the CW1 recognized it during cross-examination. Parties are bound by their pleadings, and the court has a duty to expunge it. Learned Counsel for the Claimant cited <b><i>Moral vs. Okwuayange (1990) 1 NWLR (Pt. 125) 225</i></b>, and submitted that the Claimant having proven that he was paid half salary for the months of August 2012, October 2012 and November 2012, which was admitted by the Defendant, the facts are deemed admitted. Similarly, counsel argued that the proof that the Claimant was paid full salary is in the Defendant’s custody, which the Claimant requested for a provision of same in Paragraph 3 of the Reply to the statement of defence. It is counsel’s further argument citing <b><i>Aku Nmecha Transport Service Ltd vs. Atoloye (1993) 6 NWLR (Pt. 298) 233, </i></b>that in light of the Defendant’s withholding of the evidence of full payment, this court is empowered to construe that if the withheld evidence had been produced, it would be adverse to the Defendant’s interest.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">In the same vein, counsel submitted that the self-sustaining model emphasized by the Defendant’s counsel in his final address was not tendered in evidence, and as such, counsel urged the court to disregard every argument on it. Also, counsel asserted that the Claimant never maintained that his performance was low or poor, and reliance on Exhibit H that was not pleaded or frontloaded is an error this court should not allow the Defence to make. It is counsel’s contention that paragraphs 5, 6 and 7 of the statement of facts were not denied because the Defendant did not adduce any fact to controvert the assertions contained in the paragraphs, and stating in paragraph 5 of the statement of defence that the defendant “puts the claimant to the strictest proof thereof” amounts to inadequate transverse. See <b><i>Achmura vs. Ajufo (1988) 3 NWLR (Pt. 30) 1</i></b>. Again, citing the case of <b><i>Adefemi vs. Abegunde (2004) All FWLR (Pt. 203) 2109</i></b>, counsel submitted that 30/11/2012 the date of the letter acknowledging the acceptance of resignation is the effective date of resignation because resignation takes effect on the date it was written, which in the instant case is 30/11/2012 the day the resignation was acknowledged to be received.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Again, counsel contended that the Claimant deposed to the facts of his forced resignation in paragraphs 13 and 14 of the Witness Statement on Oath, to the effect that the Claimant’s resignation letter was done under duress, the presence of which invalidates the resignation and reverts the parties back to the terms of Exhibit B which provides that either party may terminate the employment contract by giving one month notice or payment in lieu of such notice. Also, counsel argued that the Defendant has a duty as the payer to tender documents showing how much other managers who left its employment were paid; and the principle of withholding evidence operates against the Defendant to the effect that the court is correct to construe that if such documents were produced it will be against the Defendant’s interest. See <b><i>Onah vs. State (1985) 3 NWLR (Pt. 12) 236</i></b>. Counsel submitted that it is needful for interest to be ordered over the unpaid gratuity because as commercial customs demand, interest is paid by debtors and persons who hold the money of others. In conclusion, counsel urged the court to hold that the Claimant has proven his case to be entitled to his reliefs and grant them.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:2.0in;margin-bottom:.0001pt;text-indent:.5in;line-height:normal"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US; mso-bidi-language:HE">COURT’s DECISION<o:p></o:p></span></u></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In his written address, the Claimant’s counsel has urged the court to expunge Exhibit H from record on the ground that it is inadmissible in evidence. His reasons are that, although tendered through the Claimant during cross examination, the document was not pleaded or frontloaded. I have examined the document together with the pleading of the Defendant and I observe that facts contained in the document were pleaded. The Claimant himself referred to this document in paragraph 6 of his reply to the statement of defence. When he was shown the document under cross examination, he identified is as the letter he referred to. It was tendered through him but his counsel said he had no objection to its admissibility. Only for counsel to now turn around to argue that the document ought to be expunged. I do not see any defect in the document for it to be expunged. It is relevant, pleaded and was admitted without objection. The Claimant’s counsel is overruled.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Having reviewed the submissions of the learned counsels to the parties in their final written addresses, I shall now proceed to determine the case. To do that, there is need to first examine the facts presented by the parties in this matter. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant’s case is that he was employed as Assistant Manager by the then Spring Bank Plc. The bank was later named Enterprise Bank when it was acquired by AMCON on 5<sup>th</sup> August 2011. Enterprise bank (now Heritage bank), the Defendant in this suit, employed the Claimant on 22<sup>nd</sup> October 2011 as a Deputy Manager on a monthly salary of <s>N</s>309,000.00, back-end quarterly payment of <s>N</s>664,000.00 (payable every 90 days) and gratuity of <s>N</s>6,334,000.00 to be paid at termination of the employment. The Claimant said these are the monies normally paid to Deputy Managers of the Defendant. The defendant paid him the monthly salary of <s>N</s>309,000.00 from October 2011 to July 2012. In August 2012, the Defendant started paying the Claimant half salary at <s>N</s>154,500.00. This sum was also paid for the months of September and October 2012. In November 2012, the Claimant was paid the sum of <s>N</s>294,163.00 as salary. The Defendant never explained to the Claimant why he was being paid half salary. The outstanding salaries to be paid to the Claimant is the sum of <s>N</s>463,500.00. On 5<sup>th</sup> November 2012, the claimant received a written instruction through e-mail from the Head, Human Resources Department of the Defendant, Ezel Oseji, to hand over to the Regional Head before the close of business of that day. When the Claimant insisted that he should be issued a letter to properly terminate his appointment, Ezel Oseji phoned the Claimant to instruct the Claimant to resign his appointment as the Defendant will only pay the Claimant his arrears of salary and entitlements if he submits a letter of resignation. Ezel Oseji further told the Claimant that the Defendant will not give him a letter of termination and if the Claimant insists, he will not be paid any sum. Because of the precarious situation he was placed and in order to be paid his entitlements, the Claimant tendered a letter of resignation. The Defendant also terminated the employment of some deputy managers and paid each of them various sums in the range of <s>N</s>6miilion as gratuity or terminal benefits. When he went to the bank in December 2012 to check his account, he discovered that the Defendant paid him only <s>N</s>4,300,000.00 instead of <s>N</s>6,334,266.00. The Defendant withheld the sum of <s>N</s>2,034,266.00 from the Claimant’s entitlement. The Claimant’s back-end payment payable every 90 days is <s>N</s>664,000.00. On his exit, he spent 61 days out of the 90 days. When the back-end payment is prorated, he is entitled to the sum of <s>N</s>450,045.00 but he has not been paid this sum. The shortfall of his salary from August 2012 to November 2012 which the Defendant failed to pay him is the sum of <s>N</s>463,500.00. He has made demands for payment of these sums but the Defendant refused to pay.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">In defence of the claims, the Defendant averred that when the Claimant was employed by the Defendant, the policy of remuneration of staff based on level of performance applied to the Claimant. When the Claimant accepted his employment, he also accepted the performance based remuneration policy of the Defendant. The Defendant did a review of the performance of all the branch and regional heads and found that the performance of the Claimant’s branch was low. The Defendant even reduced performance threshold from 50% to 40% and still the Claimant was only able to achieve 36% performance score. The Claimant’s performance based on the 40% threshold was reviewed by the parties together and when the Claimant found that his performance was low, he opted, on his own accord, to hand over to the regional head. The Claimant was advised to do a proper handover in writing to the Regional Head and he did so willingly. The Claimant chose to resign his appointment because of the benefits which will accrue to him if he resigned. The Defendant did not force the Claimant to resign and did not terminate the Claimant’s employment. The Claimant also happily collected his terminal benefits from the Defendant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:132.45pt"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant was paid the sum of <s>N</s>309,000.00 as monthly salaries for the months of October and November 2011, February, March, April, May, June, July, August, September and October 2012. For the months of December 2011 and January 2012, the Claimant was paid the sums of <s>N</s>154,917.71. The claimant was paid all that he earned. The Defendant does not owe the Claimant the sum of N463,500.00.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant was entitled to <s>N</s>4,307,811.87 gratuity and he was paid this sum in addition to the sum of <s>N</s>269,079.66 end of service payroll benefit. The Claimant accepted these sums thankfully. The Defendant did not withhold the sum of <s>N</s>2, 034,266.17 from the Claimant. The Claimant is not entitled to backend payment of <s>N</s>450,045.00 or any sum. The Claimant resigned on 7<sup>th</sup> November 2012 which was 38 days after the last backend payment in September 2012. When prorated, the Claimant’s backend entitlement was <s>N</s>269,079.66 already paid to him. The Claimant was paid all that was due to him into his bank account no 1800002265.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">In the Claimant’s reply to the statement of defence and additional evidence, he also averred that his employment letter did not mention self-sustaining model alleged by the Defendant. His monthly salary of <s>N</s>309,000.00 was paid to him for the months of October 2011 to July 2012. He averred that the Defendant is required to supply evidence that he was paid his full salary of <s>N</s>309,000.00 for the months of October 2011, November 2011 and February 2012 to October 2012. The Defendant was mischievous to have given him a target far higher than that for other branches bigger than the Claimant’s branch. This was done as a ploy to terminate his employment. The sum of <s>N</s>294,163.00 was credited into his account in December 2012 but no explanation was given for it only that it was simply described as net terminal benefits. As a Deputy Manager, he is entitled to an average sum of <s>N</s>6,334,266.00 gratuity which sum was paid to other Deputy Managers. The Defendant acknowledged receipt of his resignation on 30<sup>th</sup> November 2012 which was the effective date of his resignation. The date makes it 61 days from the last back-end payment made in September 2012<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">On careful examination of the facts and evidence presented by the parties, it is my view that the issue which is to be resolved in this case is whether the Claimant has proved his case which will entitle him to the claims he sought. I shall consider this issue by examining each of the reliefs sought by the Claimant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The first claim of the claimant is for the sum of </span><s><span style="font-size: 12pt; font-family: "Comic Sans MS";">N</span></s><span style="font-size: 12pt; font-family: "Comic Sans MS";">478,337.00 which sum he expressed as the outstanding or balance of his salary for the months of August 2012, September 2012, October 2012 and November 2012. The Claimant told this court that on his employment on 22/10/2011 as a </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Deputy Manager, his monthly salary was <s>N</s>309,000.00. He was paid this sum for the months of October 2011 to July 2012. However, for the months of August, September and October 2012, he was paid half salary of <s>N</s>154,500.00 while in November 2012, the Defendant paid him the sum of <s>N</s>294,163.00 as salary. The total balance of his salary for these months is the sum of <s>N</s>463,500.00.</span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";"> </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Defendant has explained that the remuneration policy of the Defendant is based on level of performance. Because the Claimant’s performance was abysmally low, his pay was reduced by 50% calculated according to his overall performance for the period. The claimant was paid the sum of <s>N</s>309,000.00 as monthly salaries for the months of October and November 2011, February, March, April, May, June, July, August, September and October 2012. For the months of December 2011 and January 2012, the Claimant was paid the sums of <s>N</s>154,917.71 in line with the self-sustaining model of the Defendant to drive performance. The Defendant also averred that the Claimant was paid all that he earned and that the Defendant does not owe outstanding salary of <s>N</s>463,500.00 to the Claimant.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:145.35pt"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:145.35pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";">From the evidence of the parties, it is clear to me that the claimant’s monthly salary was <s>N</s>309,000.00. The Defendant has clearly admitted that it actually reduced the Claimant’s salaries for some months using its performance based remuneration policy. The only months admitted by the Defendant to have reduced salary by half are December 2011 and January 2012. I have observed however that the months whose salaries the Claimant complained of are those of August, September, October and November 2012. He said in the months of August, September and October 2012, the salaries were reduced by half and the total balance accruing from the reduction is the sum <s>N</s>463,500.00 in addition to the shortfall of <s>N</s>14,837.00 for November 2012. The Defendant has averred however that the complete salary of <s>N</s>309,000.00 was paid to the Claimant for the months of August, September and October 2012. The Defendant did not mention anything about the shortfall of salary for the month of November 2012. The Claimant denied this allegation of the Defendant in paragraph 5 of his reply to the statement of defence and put the Defendant to prove that he was paid his full salaries for the months he complained about in this suit. When the Claimant said he was not paid full salaries for the months of August, September, October and November 2012, a duty is imposed on the Defendant, since the Defendant said the Claimant was paid his full salaries for the months of August, September, October 2012, to produce evidence of the payment of full salaries for the months to the Claimant. Being the employer responsible for the payment of salaries to the Claimant, the Defendant is expected to keep and have the evidence of the payment. Merely alleging that the Claimant was paid or that it is not indebted to the Claimant is not sufficient to absolve the Defendant from liability. The Defendant has a duty to show evidence of actual payment and receipt of the salaries by the Claimant. The Defendant did not produce any evidence to support its averment that the Claimant was paid the full sums of <s>N</s>309,000.00 for the months of August, September and October 2012. There is nothing before the court to dispute the Claimant’s claim that he was only paid half salaries for the months of August, September and October 2012.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in;tab-stops:145.35pt"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in;tab-stops:145.35pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">In admitting that it actually reduced the Claimant’s salaries, the Defendant <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in;tab-stops:145.35pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">averred that it was done so in accordance with the Defendant’s policy on <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:145.35pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">remuneration based on level of performance. I have not been shown any document, be it employment letter, condition of service, memorandum, collective agreement or policy statement of the Defendant embodying or prescribing that payment of salary to staff of the Defendant will be based on level of performance. The Claimant’s employment letter is Exhibit B. There is nothing in its content suggesting there is such a policy in the Defendant’s employment. I must say it clearly that the said policy of the Defendant, if at all it is being practiced, is arbitrary, unfair, unlawful and offends all known labour enactments. In any case, I find that the Claimant was not paid his full salaries for the months of August, September and October 2012. He was paid only the sum of <s>N</s>154,500.00 for each of these months. The balances for the months are <s>N</s>154,500.00 each month. For the month of November 2012, the Claimant said he was paid only <s>N</s>294,163.00. This leaves a balance of <s>N</s>14,837.00 which brings the total outstanding salary of the Claimant for these months to the sum of <s>N</s>478,337.00. This claim succeeds.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant also claims the sum of </span><s><span style="font-size: 12pt; font-family: "Comic Sans MS";">N</span></s><span style="font-size: 12pt; font-family: "Comic Sans MS";">2,034,266.17 as the balance of his gratuity. He averred in support of this claim that on his employment, he was entitled to the sum of </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">N6,334,000.00 as gratuity to be paid at termination of the employment</span><span style="font-size: 12pt; font-family: "Comic Sans MS";">. He further averred that </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">when he went to the bank in December 2012 to check his account, he discovered that the Defendant paid him only <s>N</s>4,300,000.00 instead of <s>N</s>6,334,266.00. The Defendant had withheld the sum of <s>N</s>2,034,266.00 from his gratuity. The Claimant, in order to justify his claim for <s>N</s>6,334,000.00 gratuity, named some deputy managers whose employments were terminated by the Defendant and stated how much each of these deputy managers were paid as gratuity. The gratuity paid to these named deputy managers ranged between <s>N</s>6,550,640.00 and <s>N</s>6,196,573.00. The Defendant denied the Claimant’s claim for <s>N</s>6,334,000.00 and averred that the Claimant was entitled to only the sum <s>N</s>4,307,811.87 as gratuity and he was paid the sum. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The parties’ evidence is clear on the point that the claimant received the sum of <s>N</s>4,300,000.00 as gratuity from the Defendant. The issue raised by the Claimant is that his gratuity was the sum of <s>N</s>6,334,000.00 and not the sum of <s>N</s>4,300,000.00 paid to him. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">The burden of proof of his allegation that he is entitled to the sum of </span><s><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">N</span></s><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">6,334,000.00 </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">as gratuity is on the Claimant. He has to satisfy this court with cogent evidence that he was entitled to be paid the sum of </span><s><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">N</span></s><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">6,334,000.00 </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">as gratuity. The Claimant merely said he was entitled to the sum as gratuity on termination of his employment as a Deputy Manager without pointing this court to any condition of service or terms of the employment which entitled him to gratuity or which specified the amount of gratuity to be paid to him on termination of his employment. The Claimant did not also give any explanation as to how he arrived at the sum. He relied on the sum of gratuity paid to other Deputy Managers. This</span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";"> evidence is mere speculation. Besides the fact that no proof of payment of the alleged amounts to those deputy managers is placed before the court, the fact that these </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">other deputy managers were paid the various sums, as alleged by the Claimant, does not qualify the Claimant to seek to be paid the similar amount. The Claimant must go further to show the terms of the employment contract between him and the Defendant which qualifies or entitles him to the sum of gratuity he claims. I do not think the Claimant is the one to decide how much he should be paid as gratuity. In the absence of any such evidence, it is my view that the Claimant has not adduced any basis for his claim for balance of <s>N</s>2,034,266.17. This claim has not been proved. It accordingly fails.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In relief 3, the Claimant claims the sum of <s>N</s>309,000.00 from the Defendant. The Claimant wants the Defendant to pay him the sum, which is his one month salary, in lieu of notice of termination of his employment. To determine this claim, it is necessary to know the mode by which the employment was terminated and who terminated the employment. </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant stated that on 5<sup>th</sup> November 2012, he was instructed by the Defendant’s Head, Human Resources, Ezel Oseji, to hand over to the Regional Head before the close of business of that day and when he insisted that he should be issued a letter to properly terminate his appointment, Ezel Oseji told him on phone to resign his appointment as the Defendant will only pay him arrears of salary and entitlements if he submits a letter of resignation. Because of this, he resigned his employment. The Claimant said he was forced to resign. The Defendant averred that the Claimant’s performance was below threshold and when the Claimant discovered this, he decided to hand over to the Regional Head. The Claimant chose to resign his appointment because of the benefits which will accrue to him if he resigned. The Defendant did not force the Claimant to resign and did not terminate the Claimant’s employment. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">Although the Claimant attempted to say that it was the Defendant who terminated the employment by instructing him to hand over and forced him to resign, I do not find this allegation to be of any moment. The Claimant did not show to this court a copy of the resignation letter he submitted to the Defendant. This court did not have the opportunity to see the reason given by the Claimant for his resignation in the letter. Secondly, the Claimant was only directed in Exhibit C to “do a proper hand over to the Regional Head before close of business today 5<sup>th</sup> November 2012”. There is nothing in Exhibit C suggesting that the Claimant’s employment was terminated by the Defendant. The Claimant’s resignation put an end to the service relationship with the Defendant. Accordingly, it was the Claimant who terminated the employment and not the Defendant. The Claimant </span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">is not entitled to one month salary in lieu of notice of termination.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"> Therefore, his claim for payment of salary in lieu of notice from the Defendant is misconceived, without any basis and has no merit. The claim fails.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The final claim of the Claimant is for the sum of <s>N</s>463,367.25 which he described as 10% interest per annum on the unpaid balance of his gratuity from January 2013 to 28<sup>th</sup> February 2015. Since the claim for gratuity has failed, the claim for interest on the sum automatically fails.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">In the result, reliefs 2, 3, and 4 fail and are hereby dismissed. Only relief 1 succeeds. In that regard, the Defendant is ordered to pay the sum of <b><s>N</s>478,337.00</b> <b>(Four Hundred and Seventy Eight Thousand, Three Hundred and Thirty Seven Naira)</b> to the Claimant within 30 days from the date of this judgment, after which it shall attract interest at the rate of 10% per annum until it is finally paid. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><b><span lang="EN-GB" style="font-size: 13pt; font-family: "Comic Sans MS";">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:355.25pt"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Judge<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Bookman Old Style", serif;"> </span></p> <p class="MsoNormal"><span lang="EN-GB"> </span></p>