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JUDGMENT 1. On May 11, 2016 the claimant filed this complaint against the defendant, and by the amended statement of facts, the claimant is seeking for the following reliefs: i. A Declaration that the defendant’s refusal to pay the claimant his end of service benefits in line with the Policy and as practiced by the defendant in her previous retrenchment exercise of employees; particularly that of July and November 2013 amongst others; is wrongful, oppressive, unfair and contrary to the defendant’s Policy (HCP Manual Revised 2013); which envisage fair treatment and equality to all employed staff. ii. A Declaration that the defendant’s refusal to pay the Claimant his end of service benefits in line with the defendant’s Policy Manual (Handbook regulating the contract of employment between the claimant and the defendant); amounts to a breach of contract of employment. iii. A Declaration that the claimant is entitled to be paid his end of service benefits under redundancy as contained in the defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013; to wit: the payment of monetary compensation of the sum of #20,074,000.00K (Twenty Million, Seventy-Four Thousand Naira) being the 100% of gross annual salary (less tax and bonus) of a Deputy General Manager. iv. A Declaration that the claimant is entitled to be paid his end of service benefits under the Gratuity Scheme having spent a minimum of 6 years in the services of the defendant in line with the defendant’s Policy Manual, to wit: gratuity payment of the sum of #12,450,000.00K (Twelve Million, Four Hundred and Fifty Thousand Naira) being the 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the defendant (6 years). v. An Order directing the defendant to pay the claimant the sum of #20,074,000.00K (Twenty Million, Seventy-four Thousand Naira) being the 100% of gross annual salary (less tax and bonus) of a Deputy General Manager. PARTICULARS • Gross Annual Salary --------------- #24,900,000.00K • (less tax and bonus) -----------------#20,074,000.00K • 100% of same = #20,074,000.00K vi. An Order directing the defendant to pay the claimant the sum of #12,450,000.00K (Twelve Million, Four Hundred and Fifty Thousand Naira) being 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the Defendant (6 years). PARTICULARS • Monthly total package (less bonus) #2,075,000.00K • Number of years -------------6 • Total sum ------------------------------- #12,450,000.00K vii. An Order directing the defendant to pay to the claimant compensation damages (general) of the sum of #2,500,000.00K (Two Million, Five Hundred Thousand Naira) for breach of contract of employment and the cost of litigation of this suit. viii. A post judgment interest of 25% on the judgment sum from the date of judgment until final liquidation of the judgment sum. ALTERNATIVE REDUNDANCY CLAIM ONLY ix. A Declaration that the defendant’s termination of the claimant’s employment on the 16th of April, 2015 for no just cause is wrongful and thus entitles the claimant to damages; OR x. A Declaration that the defendant’s termination of the claimant’s employment via forced resignation/involuntary resignation amount to a constructive dismissal which is wrongful and thus entitles the claimant to damages; xi. An Order directing the defendant to pay compensation damages to the claimant for wrongful termination of employment/constructive dismissal in the sum of either #24,900,000.00K (Twenty-four Million, Nine Hundred Thousand Naira) or #22,360,944.21K (admitted by the defendant) being claimant’s Gross Annual Emolument. Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its statement of defence together with other defence processes in compliance with the Rules of this Court. 2. CLAIMANT’S CASE AS PLEADED The case of the claimant is that he was a Deputy General Manager of the defendant before his employment was terminated together with fourteen (14) of his other colleagues via involuntary/force resignation. That Bank PHB Plc. was fully operational before it was nationalized by the Nigerian Deposit Insurance Corporation (NDIC) and the Central Bank of Nigeria (CBN) in 2011 to become the Defendant. He continued his pleadings that it is a standard practice of the defendant Bank to ask employees to put in their letters of resignation (involuntary/force resignation) whenever they want to disengage staff on the basis of redundancy and the affected staff will be paid their entitlements in accordance with the Defendant’s HCM Policy Manual, to wit: the payment of the staff basic salary in lieu of notice, redundancy and gratuity payment. He went on that he was only paid his basic salary in lieu of notice by the defendant and was not paid his gratuity and for been rendered redundant. 3. DEFENDANT’S CASE AS PLEADED The case of the defendant, on the other is that the claimant voluntarily resigned from his employment with the defendant. It avers further that the defendant took over the assets of Bank PHB and some of her liabilities or obligations; specifically it did not take over the employment agreement of the claimant and any other employee of Bank PHB. The defendant avers again that the Keystone Bank Limited Human Capital Policies and Procedure (HCP) Manual, Revised in 2013 was not mentioned in the claimant’s Letter of Employment dated August 5, 2011 as part of his contract, and that it cannot be regarded as a new agreement entered into between the claimant and the defendant. That the defendant only made some ex-gratia payments to its ex-staff after considering its relatively stronger financial position at the time but denies that any of the ex-staff referred to by the claimant were paid in accordance with the HCP Manual Revised in 2013. During hearing of the case, the claimant gave evidence as CW 1 while one Julius Oyedeji testified as testified as DW1 on behalf of the defendant. Thereafter, parties filed their final written addresses as directed by the Court. 4. DEFENDANT’S WRITTEN ARGUMENTS Counsel to the defendant formulated eight issues for determination in his final written address this way: i. Whether the claimant who is literate and of full age is bound by the documents; his Letter of Employment dated 5th August 2011 and his Letter of Resignation of his employment dated 17-4-15 both of which he signed? ii. Between the claimant and the defendant, who terminated the claimant’s contract of employment? iii. Whether the claimant has been able to prove that his employment in 2008 by Bank PHB was transferred to Keystone Bank Limited in August 2011? iv. Whether the claimant who had been paid his benefits under his contract of Employment with the defendant Keystone Bank(dated 5th August 2011) in April, 2015 can in May, 2016 bring a suit claiming more benefits under the “Human Capital Policies and Procedures Manual” (hereafter called the HCPPM)? v. Whether the Keystone Bank Human Capital Policies and Procedures Manual (HCPPM) Revised in 2013 forms part of the Contract of Employment of the claimant when it was not incorporated in the said Letter of Employment dated 5th August 2011? vi. Assuming while not conceding that the Keystone Bank HCPPM Revised in 2013 was part of the claimant’s contract of employment, whether the claimant has proved its claim for gratuity? vii. Assuming while not conceding that the Keystone Bank HCPPM Revised in 2013 was part of the claimant’s contract of employment, and also assuming that it was the defendant who terminated the claimant’s employment, whether the claimant has proved that the defendant terminated his contract of employment within the meaning of Redundancy as is contained in the Keystone Bank HCPPM Revised in 2013? viii. Where the contract of the parties provide for at least six (6) modes of terminating the contract whether it is proper for the employer to terminate under one mode? 5. Arguing the first issue, counsel maintained that the claimant is an adult, of full age and that he signed the duplicate copy of his Letter of Employment dated 5-8-11 (Document C3) and his Letter of Resignation of his appointment (Document C5). Counsel contended that when a literate person of full age signs a document, he is bound by the contents of the document except in cases of fraud, deceit or misrepresentation, citing Omiyi v. Alabi [2015] 2 SCNJ 494. He went on that these exceptions were not raised by the claimant in this case; therefore, the claimant is inextricably bound by the contents of these documents. 6. Arguing issue two of who terminated the claimant’s contract of employment? Counsel submitted that the claimant signed his Letter of Resignation of his appointment, document C5. He wrote it and signed it even though he said he did it on the advice of the management. To counsel, therefore; the claimant terminated his own employment. He continued that the claimant could have rejected the Management’s advice but he went ahead to write and signed his Letter of Resignation. Hence, the claimant cannot say that it was the defendant who terminated his employment, referring to Omiyi v. Alabi (Supra). 7. Arguing issue three of whether the claimant’s employment with Bank PHB was transferred to Keystone Bank Ltd, counsel referred the Court to paragraphs 6, 11, 12, 16, 17, 18, 20, 21 and 22 of the Amended Statement of facts dated 5-10-17 and filed on the same date, paragraph 4 of the defendant’s Statement of Defence filed on 7-2-2016 and the claimant’s Reply to the defendant’s Statement of Defence filed on 3-2-2017. He submitted that the defendant joined issues with the claimant on its claim that his employment was transferred from Bank PHB to the defendant Bank. Counsel went on that neither Document C4 nor any other Document tendered in this suit can displace the contents of Document C3, the Written Agreement, between the parties. That Document C3 is the foundation of the relationship or Agreement between the claimant and the defendant and it is to the effect that the claimant was employed on 5th August, 2011. 8. Counsel argued further that the transfer of employment or service from Bank PHB to the Defendant Bank is by contract. No such contract has been tendered by the claimant. The fact that the claimant has pleaded more than Thirty (30) documents to prove that his employment with Bank PHB was transferred to Keystone Bank is evidence that there is no agreement of transfer of service between it and the defendant. If there is such a document or agreement, he would have tendered it and that will be all. Counsel referred the Court to the cases of Basinco Motors Limited v. Woermann-Line and Another [2009] 6 SCNJ 222; Akauve Moses Osoh and others v. Unity Bank Plc. [2013] 2 SCNJ 1083; Knight Frank & Rutley (Nig.) v. A.G. Kano State [1998] 4 SCNJ 167 and to section 128(1) (a) - (d) of the Evidence Act, 2011. 9. Counsel submitted in addition that of all the documents relied upon by the claimant; it is only Document C4 that stated that Keystone Bank Ltd, the Defendant “has assumed the years of service of all legacy staff”. It did not use the word “transfer”. It used the word “assume”. He continued that admissible documents must be construed together to determine at what point was the contract, citing Koiki & ors v. Magnuson [1999] 5 SCNJ 298; Delek Nig. Ltd. v. OMPADEC [2007] 2 SCNJ 218; Yadis Nig. Ltd. v. GNIC Ltd. [2007] 5 SCNJ 86 Okonkwo v. Co-operative and Commerce Bank Plc. & ors [2003] 2 SCNJ 90; Balio Nig. Ltd. v. Navcom Nig. Ltd. [2010] 5 SCNJ 125; Adesoye Olanlege v. Afro Continental Nig. Ltd. [1996] 7 SCNJ 145; International Messengers Nig. Ltd. v. Pegofor Industries Ltd. [2005] 5 SCNJ 120. Counsel again submitted that parties are bound by their contract as represented by Document C3 and that the Court lacks the power to re-write the agreement of parties, citing Okechukwu v. Onuorah [2000] 12 SCNJ 146 (b) Anyaegbunam v. Osaka [2000] 3 SCNJ 1(c) Nigerian Bank for Commerce and Industry v. Alfijir (Mining) Nig. Ltd. [1999] 12 SCNJ 249;AfrotechPechnical Services (Nig.) Ltd. v. MR & SONS Ltd. [2000] 12 SCNJ 298; Evbuomwon v. Elema [1994] 7-8 SCNJ 243. 10. On the plea of the Claimant that the defendant is estopped by Document C4 and other like documents from stating that the claimant’s employment with Bank PHB was not transferred to the Defendant Keystone Bank Limited, counsel submitted that estoppel is generally utilized as a shield and not a sword. It cannot be used to found a cause of action unless it is supported by consideration which is not the case here, citing Abalogu v. SPDC of Nigeria Ltd. [2003] 6 SCNJ 262. 11. Arguing issue four of whether the claimant who had been paid his benefits under his contract of Employment of 5th August 2011 in April 2015 can, in May 2016 bring a suit claiming more benefits under the “Human Capital Policies and Procedures Manual” (HCPPM), counsel submitted that claimant’s employment was not determined by the defendant as the claimant resigned from his employment by a letter dated 17-4-15. He continued that the claimant was paid his end of service entitlement of three (3) months’ salary in lieu of notice on 28-4-15. To counsel, the law is that the effect of accepting payment on termination of employment validates the termination, citing Morohunfola v. Kwara State College of Technology [1990] 7 SCNJ 51; and so, the claimant can no longer bring this suit to challenge either his resignation or the benefits paid thereunder. 12. Arguing issue five of whether the Keystone Bank Human Capital Policies and Procedures Manual (HCPPM) Revised in 2013 forms part of the Contract of Employment of the claimant when it was not incorporated in the said Employment of August 5, 2011; counsel submitted that the HCPPM was not incorporated into the claimant’s contract of employment (Document C3); therefore, it is not binding on the defendant for the claimant, citing Friday U-Abalogu v. The Shell Development Co. of Nigeria Limited [2003] 13 NWLR (Pt. 837) 309 or [2003] LPELR -18 (S.C.) that the word “expected” as used in the contract of employment dated 5-8-2011, under clause 1: Code of Conduct, means that it does not bind the employees. They are only expected to comply with the Bank’s code of conduct, rules and regulations. It is obvious that the employer is not expected to comply with it nor does it binds it. 13. Arguing issue six of whether the claimant has proved its claim for gratuity, counsel contended that assuming that Keystone Bank Limited’s HCPP Manual Revised in 2013 is part of the claimant’s contract, there is no provision in the HCPP Manual Revised in 2013 of Keystone Bank Ltd. for payment of gratuity to any staff who has spent less than five (5) years in the Bank; referring to page 28 of the HCPP Manual Clause 5.1. He went on that the claimant’s contract of Employment of 5-8-2011 is Document C3 and that the claimant’s letter of Resignation was dated 17-4-2015. The claimant; therefore, did not spend up to five (5) years in the defendant’s Bank. Also, counsel submitted that the defendant Bank was given Banking license by the Central Bank of Nigeria on 5-8-2011; thus, the claimant spent exactly 3 years 8 months and 12 days including the day he resigned with the defendant. Counsel maintained that there is nothing in Clause 5.1 on page 28 of the HCPP Manual Revised in 2013, which says that if a staff is transferred from another Bank to Keystone Bank Ltd. his period of service in the other Bank will count as the number of years he spent in Keystone Bank Ltd. Clause 5.1 is specific and it states that it is the number of years spent in the Defendant Keystone Bank Ltd. that entitles the employee to gratuity. Therefore, the claimant is not entitled to any gratuity payment whether he was employed or his service was transferred from Bank PHB. 14. Arguing issue seven of whether the claimant has proved that the defendant terminated his contract of employment within the meaning of Redundancy as it is contained in the Keystone Bank HCPPM Revised in 2013, counsel submitted that the claimant pleaded contraction of available work in a move to cut down employment cost in paragraphs 43 and 45 of his Amended Statement of Facts; and in paragraph 35 thereof that one Executive Director by name Mr. Innocent Ike informed him that the retrenchment of workers was because of the need to restructure the defendant for profitability. Counsel contended that contraction of work and restructuring of the defendant, are conclusions which only the Court can reach. That the defendant denied paragraphs 35, 43 and 45 of the Amended Statement of Facts in paragraphs 17 and 20 of the Statement of Defence. The details and particulars of the alleged contraction of work and restructuring would have tilted the weight of evidence in the scale of justice in favour of the claimant who carries the heavy burden of proof like a heavy box on his head but that the claimant failed to do this. Therefore, counsel urged the Court to hold that the claimant failed to prove that his appointment was terminated under Redundancy. 15. Arguing issue eight of where the contract of the parties provide for at least six (6) modes of terminating the contract whether it is proper for the employer to terminate under one mode; counsel submitted that assuming that the HCPP Manual is part of the contract of employment of the claimant and that the defendant terminated the claimant’s employment under one mode, the claimant’s employment was properly terminated, citing Katto v. CBN [1999] 5 SCNJ 1. 16. CLAIMANT’S WRITTEN ARGUMENTS In the final written address of the claimant, his Counsel formulated three issues for determination of the Court as follows: i. Whether the claimant’s date of joining the defendant’s employment was September 2008 or August 5, 2011. ii. Whether the claimant’s employment was terminated by the defendant through a force/involuntary resignation. iii. Whether the circumstances surrounding the claimant’s exit from the defendant’s employment amounts to Redundancy as contemplated in the contract of employment and recognized globally. 17. Arguing the first issue, counsel contended that the employment of the claimant with the defendant was with effect from September 2008; he referred the Court to paragraphs 6, 7, 8 and 10 – 23 of the Amended Statement of Fact, paragraphs 8, 9 &10 of CWSO and the contents of Exhibits C.1 & C.2 and maintained that by way of general traverse, the defendant joined issued with the claimant in its Defence. He continued that the defendant’s Witness however, did not challenge neither did he contradict the above evidence in his Witness Statement on Oath. Counsel argued that this evidence was admitted by the defendant, citing Oguma v. I.B.W.A. (supra). He also referred the Court to the evidence of DW.1 under cross-examination, which states that the claimant was not employed as fresh employee by the defendant through EXH. C3 (Offer letter of August 5, 2011. 18. On Documents C.11, C.12, C.22 & C.23 counsel submitted that the defendant was established without any assets of its own or its own employees but was simply created for the sole purposes of carrying on and continuing the banking business of Bank PHB Plc. and to assume all the recorded deposit liabilities and other liabilities of Bank PHB Plc. including the employment agreement between Bank PHB Plc. and its staff. To counsel, the claimant’s date of employment in September 2008 and the fact that his employment was transferred to the defendant is very probable since the claimant was only expected to prove his case on the basis of probability, citing L.S.B.P.C. v. Purification Tech. (Nig.) Ltd [2013] 7 NWLR (Pt. 1352) 182; Registered Trustees, L.C.N. v. Obat [2009] All FWLR (Pt. 477) 67 at pp. 88 – 89 and the provisions of Companies and Allied Matters Act (CAMA, CAP. C20) Laws of Federation of Nigeria (2010). 19. Counsel canvassed that the absence of any letter expressly determining the employment of the claimant by either Bank PHB Plc. or by NDIC before EXH. C3 was issued by the defendant and with the defendant’s explanation in EXH. C4 is proof that the claimant’s employment was transferred from Bank PHB Plc. to the defendant without any break in the employment and that EXH. C3 was only a confirmation of the transfer. 20. On Employer’s Successor Clause Contained in EXH. C23 (PAA Agreement), counsel referred the Court to Clause 4.3 of EXH. C23 at its page 15, that document provides for the transfer of all employment contracts from the erstwhile staff of Bank PHB Plc. to the defendant if the defendant failed to communicate to NDIC by Written Notification within ninety (90) days from August 5, 2011 specifying whether it elects to assume or not to assume such employment contract between Bank PHB Plc. and its staff and that the defendant did not give any written notification of not assume the claimant’s employment contract between Bank PHB Plc. within the specified period. 21. On Exhibits C1, C3 and C4; counsel submitted that the proper inference to be drawn from the testimony of DW.1 is that the probation clause was not applicable to the claimant because the claimant has already been confirmed by Bank PHB Plc. via the letter dated July 22, 2009 with the subject: ‘Confirmation of Appointment’ (EXH. C2) after he had served his probation period. He further argued that this inference accords with EXH. C4, citing F.B.N. Plc. v. M.O. Nwadialu & Sons Ltd. [2016] 16 NWLR (Pt. 1543) 1 C.A at p. 48 para H and Maku v. Al-Makura [2016] 5 NWLR (Pt. 1505) 201 SC He also referred to Sections 84 and 85 of the Evidence Act, 2011. 22. Responding specifically to issue 5 of the defendant of Whether the Defendant’s HCM Policy Manual forms part of the contract, counsel submitted that EXH. C4 is the defendant’s Memo and it is one of the Circulars and Policy Statements of the defendant recognized and incorporated in EXH. C3. Thereby, it is part of the terms of the claimant’s contract. To counsel, it is an elementary principle of labour law that Employer’s Handbook forms part of the terms of employment contract, citing Baba v. N.C.A.T.C. [1991] 5 NWLR (Pt. 192) 388 at 413 paragraphs A-C. Referring to Clause 5.4 of Exh. C13 at its page 28, counsel submitted that an employee such as the claimant can be entitled to both gratuity and redundancy benefit at the same time upon exit, once the Court finds that his employment was terminated on the basis of Redundancy. 23. Arguing issues two and three, which are whether the claimant’s employment was terminated by the defendant through a force/involuntary resignation and whether the claimant’s exit from the defendant’s employment amounts to Redundancy as contemplated in the contract of employment and recognized globally; counsel argued that the claimant has led evidence to show that he and his colleagues resigned from the defendant’s employment on April 16, 2015 by EXHS C5, C17, C18 & C19 without given the defendant any notice prior to their resignation letters. Evidence was also led to show that it was the defendant that paid them salaries in lieu of notice by EXHS C15, C17(a), C18(a) & C19(a) before the Court. Counsel contended that these evidence show that his resignation was involuntary. There was also evidence of similar resignation in the past from the defendant’s employment by EXHS. C7, C16 & C20 (b). Counsel submitted that the defendant admitted making this payment to the claimant and that the payment was in accordance with the terms of the contract at paragraph 18 of its defence and at paragraph 3.10 of its FWA. He referred the Court to Sylvester Azuka Egwuatu v. Diamond Bank Plc. [2015] 59 NLLR (Pt. 204) 283 NIC. That the failure of the defendant to provide evidence in respect of Appendix Form is in line with page 71 clause 4.0 on (Exit management Process) of EXH. C13; points to the fact that resignation of the claimant was not voluntary. He urged the Court to invoke the provision of Section 167(d) of the Evidence Act, 2011 against the defendant. 24. Furthermore, counsel argued that ex-employee of the defendant who received redundancy payment as terminal benefits from the defendant or ex-gratia payment as the defendant calls it; have the same employment terms with the defendant as that of the claimant’s employment terms with the defendant, referring to EXHS. C3, C6, C7, C8, C9, C10 and C20 (a) and the case of Mbilitem v.Unity Kapital Assurance Plc. [2013] 32 NLLR (Pt. 92) 196 NIC. He went on that the onus rests on the defendant to prove that its current financial position is weaker compared to his earlier financial position when it made those earlier ex-gratia payments to exited staff before it can be excused from paying the claimant. However, this argument will only apply where the Court finds that the said payment to the ex-staff was strictly ex-gratia and outside the terms of the contract with no obligation on the defendant to pay same. 25. On the claimant’s Alternative Relief of Constructive Dismissal, counsel submitted that where the claimant’s relief for Redundancy payment fails, the Court is bound to consider its alternative claim for constructive dismissal. However, as a matter of procedure, a trial Court whose decision is not final, is obliged to consider and pronounce on the alternative claim even if the main claim succeeds. To him, the law is settled that force exit/involuntary resignation amounts to constructive dismissal of an employee and this entitles the employee to compensation damages for wrongful dismissal/termination of employment. That the failure of an employer to pay an employee all his terminal benefits/entitlements upon the determination of the employment as provided for in the contract of employment shows that the employer has breached the contract of employment. He referred the Court to the cases of Sylvester Azuka Egwuatu v. Diamond Bank Plc. (supra); Mr. Stephen Ilesanmi Olorunda v. First Bank of Nigeria Plc. (supra); Julius Berger Nig. Plc. v. Nwagwu [2006] 12 NWLR (Pt. 995) 518; LUTH & M.B. v. Adewale [1998] 5 NWLR (Pt. 550) 406; Chiedu v. Subaru Motors Nig. Ltd. [2016] 66 NLLR (Pt. 237) 567 NIC; Ijebu Ode Local Government v. Adedeji Balogun & Co [1991] 1 NWLR(Pt. 166) 36; Bello v. A.G. Oyo State [1986] 5 NWLR (Pt. 45) 828 and UBN Ltd. v. Odusote Book Stores Ltd. [1995] 9 NWLR (Pt. 421) 558. Finally, counsel submitted that issues two and three formulated for determination can be resolved on the fact of who paid monetary compensation in lieu of notice between the claimant and the defendant in compliance with EXH C13. 26. Counsel to the defendant also filed objection to the admissibility of the list of the claimant’s document at page 541 of the record. Document C4 is listed as No. 4 on the claimant’s List of Documents, it is a Memo titled: “Update on Staff Welfare”; it was received via e-mail to all staff of the Defendant on December 13, 2011 at 7:15am. Counsel contended that this document was sent to the claimant’s colleague and not to the claimant himself; therefore, same cannot be tendered by the claimant. Another reason given for challenging the admissibility of the document is that because it was generated via computer, it was not tendered in line with the provisions of sections 37, and 83(1) and (4) of the Evidence Act, 2011. 27. In respect of Documents C6, C7, C8, C9 and C10 relied on by the claimant, counsel argued that these documents relate to letters of Employment, Resignation letters and the Bank Account Statement of some ex-staff of the defendant and they were given to the claimant by third parties and the claimant cannot be cross examined on them; hence, they offend sections 37 and 83(1) of the Evidence Act, 2011. 28. On document C11, counsel maintained that only a Certified True Copy of page 8 of Saturday Punch of August 6, 2011 is admissible in evidence and not Document C11; which is a photocopy and uncertified true copy of the page. To counsel, whether Notice to Produce was given or not, or whether the document was produce or not is irrelevant to his objection to the admissibility of the document; referring to Ogbuninya v. Okudo (No.2) [1979] All N.L.R. 105: [1979] 6-9 S.C. 24 and to sections 2, 4 and 5 of the National Library Act, 1970 CAP. N56 Laws of the Federation of Nigeria, 2004. He also urged the Court to reject Document C12 on the ground of same being a photocopy without any foundation. On the claimant’s additional list of documents; counsel again objected to the admissibility of Documents C16, C16A, C17, C17A, C18, C18A, C19, C19A, C20, C20A, C21 C22 and C23. He also urged the Court to rejects these documents on similar grounds of same not tendered by their makers and not being the certified. 29. Responding to the objection to the admissibility of the claimant’s documents list at page 541, the claimant’s counsel submitted that the defendant who failed to comply with Order 3 Rule 11 and Order 34 of the NICN (Civil Procedure) Rules, 2017 is deemed to have admitted these documents and cannot be allowed to raise any objection to any of the documents whether during trial or at Final Written Address as the defendant did by its application. To the claimant’s counsel, the defendant is not permitted in law to raise any objection to the claimant’s admitted documents at this stage of the suit by the provisions of the cited Rules of Court. He continued that the failure of the defendant react to those documents by giving notice of admission or non-admission of the documents before trial commenced forecloses the defendant from raising any objection to any of the admitted documents of the claimant now, citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 at 635-636; Famuyide v. R.C. Irving & Co. Ltd. [1992] 7 NWLR (Pt. 256) 639 at 653 paras D-G; Umeanadu v. A-G., Anambra State [2008] 9 NWLR (Pt. 1091) 175 at 193 paras E-F; Chief of Air Staff v. Iyen [2005] 6 NWLR (Pt. 922) 496 and Owners of the MV Arebella v. N.A.I.C. [2008] 11 NWLR (Pt. 1097) 182 at 205 paras G-H. 30. On Documents C4, C5, C6, C7, C8, C9, C10, C11, C16, C16 (a), C17, C17 (a), C18, C18(a), C19, C19(a), C22 and C23; counsel submitted that they are documentary hearsay evidence; which is not an issue of admissibility per se but it is an issue of weight and probative value to them. Furthermore, in respect of the defendant’s Objection to Documents C4, C5, C6, C7, C8, C9, C10, C11, C16, C16(a), C17, C17(a), C18, C18(a), C19, C19(a), C22 and C23; being Documentary Hearsay, counsel noted that the making of these documents involve several persons, which include the defendant and that going by the defendant’s arguments, these several persons must be called as witnesses by the claimant for the sole purpose of tendering them as exhibits. Counsel continued that these several persons were listed by the defendant’s counsel in his arguments as: (1) Lawani A. Adeyinka (2) Yakubu Suleiman Abdullah (3) Adesina Bimbo (4) KazeemBusari (5) Raymond Onomerike (6) John Onyema (7) Mohammed Zubair (8) Bashir Shuaibu (9) Mohammed Ciroma (10) Julius Okheleigbe (11) Ifeanyi Onuba and (12) Dr. Yerima Ngama- then Minister of State. 31. Counsel submitted that from the nature and the content of the documents in question, they are not of such nature that the law imposes on the claimant the onerous duty of calling all these twelve (12) persons as witnesses for the sole purpose of tendering the documents in evidence so as to satisfy the provision of section 83(1) of the Evidence Act. He argued that this is where subsection 5 of section 83 of the Evidence Act comes in; because this subsection allows the court to draw any reasonable inference from the form or contents of the documents in which the statement is contained or from any other circumstances. To counsel, the position of the defendant’s counsel on the documents in question is clearly contrary to the practice and procedure of this Court, which is in accordance with principle of fair hearing, equity and international best practices. He went on that by virtue of Section 83(2)(a) of the Evidence Act, 2011 the maker of a document need not come where undue delay or expense would be caused if he is to come and testify. 32. In addition, counsel submitted that Documents C4 and C23 were properly certified as public documents and same are substantially in compliance with the format as provided for in the Evidence Act. He referred the Court to Brila Energy Ltd. v. FRN [2018] LPELR-43926(CA); Nwoke v. Ezeuko [2001] FWLR (Pt. 38) 1275 at 1290 para C. He contended that the issue of weight and probative value Court will attach to the claimant’s Documents/Exhibits have been settled by the Schedule of Documents and Notice to Admit or Object to Documents filed by the claimant pursuant to Order 3 Rule 11 and Order 34 Rule 2 of the NICN (C.P.) Rules, 2017 and by the provisions of sections 20 and 21(1) of the Evidence Act, 2011. He continued that the failure of the defendant to respond to the claimant’s aforementioned process in accordance with the aforementioned Rules of this Court is that the defendant shall be deemed to have admitted the documents and he urged the Court to so hold. 33. COURT’S DECISION I have gone through the facts of the case as pleaded and presented to the Court in evidence, the written arguments of counsel to the parties and their cited authorities; from all of these, I am of the considered view that the followings are issues to resolve between the parties: i. Whether or not Documents C.4, C.6, C.7, C.8, C.9, C.10, C.11, C.12, C.16, C.16 (a), C.17, C.17 (a), C.18, C.18 (a), C.19, C.19 (a), C.20, C.20 (a), C.21, C.22 & C.23 tendered in evidence and relied on by the claimant; together with his list of additional documents were properly admitted in evidence as exhibits and should be relied on by the Court. ii. What are the documents containing the terms and conditions of the claimant’s employment with the defendant? iii. Whether or not the defendant took over the liabilities of the claimant’s employment from his former employer and whether the claimant’s date of employment with the defendant is September 18, 2008 or August 5, 2011. iv. Whether or not it is unfair labour practice for the defendant to pay ex-gratia to some of its ex-employees retrenched like the claimant without paying same to the claimant. v. Whether the claimant resigned from his employment voluntarily or he was forced to resign by the defendant thereby amounting to constructive dismissal. vi. Whether or not the claimant’s exit from the defendant’s employment was as a result of redundancy or he is entitled to gratuity from the defendant as contemplated in his contract of employment. As agreed by counsel to the parties and allowed by the Court, this case is being used as test case for its sister case with Suit No: NICN/IB/53/2016 between John Onyema v. Keystone Bank Ltd. This means that the decision in this case abides in the sister case in principle. 34. ON THE ADMISSIBILITY OF THE CLAIMANT’S DOCUMENTS For various reasons, counsel to the defendant copiously objected to the admissibility of eighteen out of the twenty five documents of the claimant together with his list of additional documents. These documents are already admitted in evidence as exhibits before the Court including the claimant’s List of additional Documents. The documents objected to are: Documents C4, C6, C7, C8, C9, C10, C11, C12, C16, C16(a), C17, C17(a), C18, C18(a), C19, C19(a), C22 and C23. In response to the objections, counsel to the claimant submitted that by the provisions of Order 3 Rule 11 (2) and (3) together with the provisions of Order 34 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017; the defendant ought to have indicated its intension to object to those documents within fourteen (14) days of receiving the claimant’s complaint and other initiating processes on this case including the schedule of Documents. He further contended that any document and exhibit contained in the schedule, which is not objected to by the defendant may be deemed admitted and shall not be allowed to be objected to at the trial, except as the Court may otherwise direct. 35. Order 3 Rule 11 the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides thus: (1) In addition to the provisions of Rules 8 and 9 of this Order, the claimant shall file along with the claim, a schedule of all documents and exhibits to be relied upon at the trial and upon filing, forward an advance copy of same to the defendant(s). (2) Within fourteen (14) days of the receipt of the schedule referred to in sub-rule 1 of this rule, the defendant shall file an acknowledgment indicating the document(s) the admissibility of which the defendant shall not be objecting to as well as those documents the admissibility the defendant shall be objecting to at the trial. (3) Any document and exhibit contained in the schedule which is/are not objected to by the defendant(s) may be deemed admitted and shall not be allowed to be objected to at the trial, except as the Court may otherwise direct. Order 34 Rule 2 of the NICN (CP) Rules, 2017 provides: (1) Either party may, not later that seven (7) days after close of pleadings by notice in writing filed and served, require any other party to admit any document and the party so served shall not later than four (4) days after service give notice of admission or non-admission of the document, failing which the party so served shall be deemed to have admitted it unless; (2) When a party decides to challenge the authenticity of any document, such a party shall not later than seven (7) days after service on the party of that document, give notice that the party does not admit the document and requires it to be proved at the trial. 35. At page 430 of the record is the claimant’s notice to admit to facts pursuant to Order 34 Rules 1 & 3 of the NICN (CP) Rules, 2017. However, there is no evidence before the Court showing that the claimant complied with the provision of Order 34 Rule 2 of the NICN (CP) Rules, 2017; by requiring the defendant through notice in writing filed and served, to admit any of his documents within seven (7) days after close of pleadings. Therefore, I find and hold that Order 34 Rule 2 of the NICN (CP) Rules, 2017 is not applicable to this case. Again at page 277 of the record is the Schedule of the claimant’s documents and notice to the defendant to admit or object to the scheduled documents pursuant to Order 3 Rule 11 of the current Rules of this Court and sections 20 & 21 of the Evidence Act, 2011. From the provisions of Order 3 Rule 11 (2) of this Court reproduced above, it is very clear that the defendant was required to have indicated its intension to object to the admissibility of the eighteen documents of the claimant within 14 days of receiving the schedule of all documents of the claimant together with other initiating processes. This schedule was filed on February 3, 2017 and the defendant filed its objection to the claimant’s documents on May 23, 2018 together with its final written address, see page 541 of the record. This means that the objection was raised, over a year after the schedule was filed and served on the defendant. Thus, the defendant did not indicate its intension to object to the said eighteen documents of the claimant within the stipulated period in the Rules of this Court. In Owner v. Insurance [2008] 5 SCNJ 109, the Supreme Court held thus at page 120: "Rules of Court are not mere rules but they partake of the nature of the subsidiary legislations by virtue of Section 18(1) of the Interpretation Act; therefore, have the force of law. Rules of Court must be obeyed. This is because when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless, there must be a sanction; otherwise, the purpose of the rules will be defeated. Rules of Court are not only meant to be obeyed, they are also binding on all the parties before the Court." See also Sharon Properties Ltd v. Paul B. Nigeria Plc. (2014) LPELR-23728(CA) and Bhojsons v. Daniel Kalio [2006] 5 NWLR (Pt.973} 330 at 355. For these reasons, I find that the defendant is deemed to have admitted these documents by virtue of the provisions of Order 3 Rule 11 (2) & (3) of the NICN (C.P) Rules, 2017. Consequently, I hold that the defendant is precluded from raising the objection at this stage of the proceedings. 36. Besides, part of the reasons for the objection of the defendant’s counsel to the admissibility of these documents; particularly Documents C.4, C.6 to C.10 was that they were not tendered by their makers or owners. These documents involve several people including the defendant and to insist on calling all of them as witnesses by the claimant for the sole purpose of tendering the respective documents in evidence as exhibits will be cumbersome and it will unnecessarily prolong the proceedings in my considered view. By the provisions of section 12(2)(b) of the NIC Act, 2006; this Court is allowed to depart from the provisions of Evidence Act if the interest of justice will be better served. In my firm view, by allowing the claimant to tender the documents in question in evidence; this Court has rightly departed from the provision of the Evidence Act in order to avoid prolonging the proceedings unnecessarily, thereby serving the interest of justice better. Moreover, the said documents are already in the Court’s record and whether or not they are tendered and admitted as Exhibits, this Court can still look at or consider them in writing this judgment with the authority of the Court’s decision in Agbahomore v. Eduyegbe [1999] 3 NWLR (Pt. 594) 170 at 182, paragraph E. In the circumstances, the objection of the defendant to the admissibility of the 18 documents of the claimant as shown above is hereby over ruled and dismissed. I hold that the documents in question were rightly admitted in evidence by the Court in this case. 37. Which of the Documents before the Court are containing the terms and conditions of the claimant’s employment with the defendant? In an action on contract of service, the Court will confine itself with the terms and conditions of the said contract. In other words, the rights, duties and obligations of the parties to the contract of service will be determined by the terms and conditions of the contract of service executed by the parties. How then do we determine the document(s) which, contain(s) the terms and conditions of the contract in question? These will be shown to the Court by the agreement of the parties or through their arguments. In the case at hand, the claimant pleaded and argued that prior to his employment with the defendant he was in the employment of Bank PHB with effect from September 15, 2008 through Documents C.1 and that the employment was even confirmed through Document C.2 before the Court. See paragraphs 6 to 8 of the Statement of Facts at pages 7 & 8; paragraphs 8 to 10 of the claimant 1st Written Statement on Oath at page 18 and paragraphs 6 to 8 of the Amended Statement of Facts at pages 463 & 464 of the record. At this point Document C. 1 is a document containing the terms and conditions of the claimant’s employment with Bank PHB. Whether or not this document is enforceable against the defendant will be resolved under a different framed issue in this judgment. 38. Both parties agreed that Document C.3 is the letter of employment issued to the claimant by the defendant. This document is at pages 34 to 38 of the record. Hence, I find that Document C.3 contains some terms and conditions of the employment in question. 39. Continuing his averments in paragraphs 47 to 49 of the Statement of Facts, the claimant pleaded the Human Capital Policies and Procedure Manual Revised, 2013 as a document also containing the terms and conditions of his employment. This is Document C.13 before the Court. However, in paragraph 3.12 of his final written address, counsel to the defendant contended that Document C.13 is not incorporated in the contract of employment between the parties as contained in Document C.3 of August 5, 2011; and so, same is not binding on the defendant, relying on Abalogu v. SPDC Ltd [2003] 13 NWLR (Pt. 837) 309. As contended by the claimant’s counsel, Abalogu v. SPDC Ltd (Supra) was decided on Collective Agreement between the parties and not on Employer’s Handbook like the content of Document C.13. Moreover, page 2 of Document C.3 is sub-titled ‘Terms of Employment’; the first term under it is Code of Conduct. This term states in part: All employees are expected to comply with the Bank’s code of conduct, rules and regulations as contained in the Human Capital Staff Policy and all such other circulars and policy statements that may be issued from time to time. 40. In my considered view, Document C. 13 is the Human Capital Staff Policy mentioned in Document C.3, which the claimant was expected to comply with together with the rules and regulations contained/stated therein as part of his terms and conditions of the contract of his employment. Therefore, contrary to the argument of counsel to the defendant, I find and hold that Document C.13 also contains parts of the terms and conditions of the contract of employment between the parties. Furthermore, I find that Documents C. 4 titled ‘Update on Staff Welfare’; C. 15: the ‘End of Service Advise’, and C.25: the ‘Confirmation of Remittance of Accrued Pension Contribution’ are other circulars and policy statements that were issued at different times by the defendant and these documents also contain the terms and conditions of the contract of employment between the parties. Consequently, I hold that the terms and conditions of the contract of employment between the claimant and the defendant in this case are contained in Documents C.3, C.4, C.13, C.15 and C.25 before the Court. 41. Whether the defendant took over the assets & liabilities of the claimant’s former employer and whether the claimant’s date of employment with the defendant is September 18, 2008 or August 5, 2011. i. Whether the defendant took over the liabilities on the Claimant’s contract of employment with Bank PHB The claimant pleaded in paragraphs 10 – 23 of the Amended Statement of Facts that his employment agreement with Bank PHB Plc. and the years of service already spent with Bank PHB Plc. before he joined the defendant were assumed by the defendant as its liability from Bank PHB Plc. pursuant to a Purchase and Assumption Agreement (PAA) of August 2011 between the defendant and NDIC, see pages 371 of the record. On the other hand the defendant pleaded in paragraph 8 of the statement of defence at page 244 of the record that it took over the assets of Bank PHB and only some of her liabilities or obligations and specifically, that it neither took over the employment agreement of the claimant nor that of any other employee of Bank PHB. See paragraph 5 of the written statement on oath of the D.W.1 at page 251 of the record on the evidence of the defendant on the same pleading. 42. Document C.23 is the ‘Purchase and Assumption Agreement (PAA) of August 2011’ between the Nigeria Deposit Insurance Company and Keystone Bank Limited, now the defendant. Clause 4.3 of this document is titled: ‘Agreement with Respect to Certain Existing Agreements’ and it provides: (a) Subject to the provisions of Clause 4.3(b), with respect to agreements existing as of the Effective Date which provide for rendering of services by or to the Failing Bank, within ninety (90) days after Effective Date, the Assuming Bank shall give the NDIC written notice specifying whether it elects to assume or not to assume each such agreement. Except as may be otherwise provided in this Clause 4, the Assuming Bank agrees to comply with the terms of each such agreement. The Assuming Bank shall be deemed by the NDIC to have assumed agreements for which no notification is timely given. (b) The provisions of Clause 4.3(a) regarding the Assuming Bank’s election not to assume certain agreements shall not apply to agreements that are subject to Clause 4.1 and 4.2 but shall apply to employment agreements between the Failing Bank and its employees. --- See page 385 of the record. 43. The provision in Clause 4.3 (b) above means that the provision on election to assume agreement in clause 4.3 (a) applies to contract of employment. There is no evidence before the Court that the defendant declined assuming liability on existing employment agreement between Bank PHB and its employees within 90 days from August 5, 2011 when this Agreement was made as required by this clause. Even though the agreement quoted above is not between the claimant and the defendant but between the defendant and the Nigeria Deposit Insurance Company (NDIC); the Law is that “the purchaser of a company buys its assets and liabilities”, see Per Rhodes-Vivour, JSC’s holding in A. O. Afolabi & Ors. v.Western Steel Works Limited & Ors [2012] 7 iLAW/ SC.29/2004. See also paragraph 48 of the unreported decision of this Court delivered on May 24, 2018; Suit No: NICN/LA/430/2014 Between Madam Oyesola Ogunleye v. Sterling Bank Plc. By these decisions, the defendant in the instant case is not allowed to take over assets and only some of the liabilities of Bank PHB, which it purchased as contended by its counsel. But that the defendant takes over all Bank PHB’s pending liabilities as well, particularly those that have to do with the employees of Bank PHB and this includes, all liabilities on the contract of employment of the claimant with Bank PHB. Consequently, I find and hold that the defendant took over liabilities of the claimant’s contract of employment from Bank PHB. ii. Whether the claimant’s date of employment with the defendant is September 18, 2008 or August 5, 2011. 44. It is the case of the claimant in paragraphs 6, 19, and 20 of his amended statement of fact that he joined the services of Bank PHB Plc. on September 18, 2008 by virtue of his employment letter dated June 30, 2008 (Document C.1). See also paragraphs 6 of his statement on Facts and 8 of his written statement on oath. He went on that after the defendant took over the banking business of Bank PHB Plc.; it assumed Bank PHB Plc.’s duties and obligations to Bank PHB’s employees including the employment agreement between Bank PHB Plc. and the claimant. He continued that the defendant gave him another letter of employment dated August 5, 2011; but that this second letter of employment transferred his employment from Bank PHB Plc. to the defendant on the same last grade level of his employment with Bank PHB Plc. (Deputy General Manager). On the other hand, the defendant pleaded in paragraphs 3 and 8 of its statement of defence that the claimant was employed by the defendant on August 5, 2011 as a Deputy General Manager while he resigned his employment with the defendant on April 16, 2015. The defendant maintained that it took over the assets and only some liabilities or obligations of Bank PHB and that specifically, the defendant did not take over the employment agreement of the claimant with Bank PHB. 45. Contrary to the claimant’s pleadings that he joined the employment of the defendant when it was known as Bank PHB Bank on 18th September, 2008 by virtue of Document C1; his said employment was with effect from July 4, 2008 while his confirmation letter was from March 14, 2009. See Documents C.1 and C.2; the claimant’s letter of employment with Bank PHB Plc. dated June 30, 2008 and his confirmation letter of July 22, 2009 respectively at pages 29 and 33 of the record. Document C.3 is the defendant’s Letter of Employment to the claimant. It is dated August 5, 2011 and it is at page 34 of the record. The employment given to the claimant in this document is effective from August 5, 2011. It is not stated in this document that the claimant transferred his employment with Bank PHB to the defendant. Therefore; prima facie, the claimant did not transfer his employment from Bank PHB to the defendant via Document C.3 and I so find. 46. However, Document C.3 is titled “Re: Employment”. The word ‘Re:’ means ‘in the matter of’ (used typically as the first word in the heading of an official document or to introduce a reference in a formal letter); see The Oxford Living Dictionary of the Oxford University Press, 2018. Other words with similar meanings with ‘Re’: are: ‘concerning’, ‘regarding’, ‘about’, ‘on the subject of’, ‘with regards to’ and ‘with reference to’. The word “Re:” is not used to title a letter/Memo or a Formal correspondence on a fresh subject matter. It is an Administrative or Executive word only used to refer to a previous subject matter. Therefore, I agree with the submission of the claimant’s counsel on this point in paragraph 5.39 of his final written address at page 565 of the record; and I find that this title on Document C.3 connotes that there was already an employment in existence that is being referred to here and it was in reference of, which Document C.3 was issued. From the evidence before the Court in relation to the claimant, he had no other employment prior to the one stated in Document C.3 other than the one stated in Document C.1 of July 4, 2008 with Bank PHB. In the circumstance, I find and hold that Document C.3 was issued with reference to the claimant’s employment that was with effect from July 4, but pleaded as September 18, 2008 by the claimant. 47. Furthermore, Document C.4 before the Court is an email memo/correspondence from the defendant’s HCMD to all staff of the defendant. It was issued from Corporate Communications of the defendant and it is titled: ‘Update on Staff Welfare’ on December 13, 2011. Paragraph 2 of this correspondence is sub-titled – ‘Probation and Years of Service’; it states: No staff from the erstwhile Bank is on Probation. Keystone Bank has assumed the years of service of all legacy staff. ---. 48. In paragraph 5.38 of his final written address, counsel to the claimant argued that the phrase “Assumed Years of Service” in Document C.4 means ‘Transfer of Service’ by implication and that both terms have the same effect and implication. I do not agree with this line of argument of the learned counsel because we cannot read into this document what is not expressly contained therein as it is trite that ‘the express mention of one thing is the total exclusion of others’ see Olanrewaju Commercial Services Ltd v. Sogaolu & Anor [2014] LPELR-24086(CA). This Court is required to respect the sanctity of the contract between the parties and not to allow a term on which there was no agreement to be read in to it, see the case of Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) SC 96 at 115 paragraphs C-E. In the circumstance, I reject this line of argument of the claimant’s counsel that ‘transfer of service’ is meant by “Assumed Years of Service” in Document C.3. 49. Nonetheless, some of the words used in Document C.3 are ambiguous and they need to be further explained in order to understand the full content of the document. It is my considered view that Document C.4 was issued to give the necessary explanation on the content of Document C.3. The content of Document C.4 is to the effect that those who became employees of the defendant; like the claimant via Document C.3 for example, but who were already in the employment of the erstwhile Bank, that is; those who were in employment of the former, previous, past or old bank were not required to be on Probation. Document C.4 continued that Keystone Bank has assumed the years of service of all legacy staff. This means that the defendant has undertaken, accepted, adopted, taken up or taken responsibility of the years of service of all legacy staff; all bequest or inherited staff of the bank acquired or purchased by the defendant, including Bank PHB and I so find. From the content of Document C.4, the use of the phrase ‘has assumed’ is in compliance with the meaning of the phrase ‘the Assuming Bank agrees to comply with the terms of each such agreement’ used in Clause 4.3 of Document C.23, ‘the Purchase and Assumption Agreement (PAA) of August 2011’ as found and held above. 50. Again on May 2, 2018 the defendant’s witness, D.W.1; Julius Oyedeji testified before this Court. Under cross-examination, he gave evidence this way: It is true that the defendant absorbed the former staff of Bank PHB when it took it over and gave them offer letter – Document. C.3. Those staff confirmed in Bank PHB needed not to be on probation as contained in the offer letter. – Document. C.3. This testimony of D.W.1 under cross-examination supports more, the finding of the Court that the old staff inherited from the acquired or purchased bank needed not be on probation as stated in paragraph 3 of Document C.3. And because, the claimant was an old staff of Bank PHB whose employment had even been confirmed before Document C.3 was issued to him, I find and hold that the requirement of probation period and confirmation of his appointment in question as stated in paragraph 3 of Document C.3 is not applicable to him. 51. Additionally, Document C.15 is the ‘End of Service Advice’ issued to the claimant by the defendant after his resignation. On the second page of this document, which is at page 285 of the record, the defendant states that the claimant joined the Bank on September 18, 2008. Similarly, Document C.25 titled: ‘Confirmation of Remittance of Accrued Pension Contribution’ was written by the defendant on behalf of the claimant to Pension Alliance Ltd. on September 1, 2015. In it, the defendant confirmed that the claimant was hired by the bank on September 15, 2008 and that his Exit date is April 16, 2015. See page 492 of the Court’s record. With all these findings on the date of employment of the claimant, which the defendant has admitted and written official memos/correspondence/letters on; this Court will not allow the defendant to now deny that the claimant’s employment with the defendant was with effect from September 2008. 52. As found above, even though Document C. 1 states that the claimant’s employment with Bank PHB, acquired/purchased by the defendant is with effect from July 4, 2008; by the claimant’s pleadings and defendant’s admission through documentary evidence, both parties agreed that the claimant’s employment is with effect from September 18, 2008; this Court will work with the agreed date in this judgment. Consequently, I find and hold that the years of service of the claimant in Bank PHB were factored into his employment with and assumed by the defendant. I further hold that the employment of the claimant with the defendant was in the circumstance, with effect from September 18, 2008. Is It Unfair Labour Practice For The Defendant To Refuse To Pay The Claimant Some Benefits As Paid to His Previous Contemporaries? 53. It is the claimant’s argument that the defendant has consistently paid his co-employees retrenched in similar circumstances like himself some benefits, which were not paid to him after his employment with the Bank was determined. See his pleadings in paragraphs 29 to 34 of the statement of facts at pages 8 to 10 of the record, paragraphs 30 to 35 of his written statement on oath at pages 20 to 22 of the record, paragraph 4(f.) of his reply on points of law at pages 268 to 269 of the record, and paragraphs 29 to 34 of the amended statement of fact at pages 466 to 468 of the record. To these facts and evidence, the defendant’s reaction is that some of its ex-staff who were paid their emoluments in accordance with their contract of employment letter dated August 5, 2011 went to court to demand that they be paid their emoluments in accordance with the Keystone Bank Limited Human Capital Policies And Procedure (Hcp) Manual, Revised In 2013 but most of these cases were settled out of court between the ex-staff and the Defendant and the Defendant made some ex-gratia payments to these ex-staff after considering its relatively stronger financial position at the time but denies that any of the ex-staff referred to by the Claimant were paid in accordance with the HCP Manual Revised in 2013. See paragraph 16 of the statement of defence at page 234 to 235 of the record and paragraph 12 of the written statement on oath of D.W.1 at page 238 of the record. 54. There is no evidence before the Court on the defendant’s pleading in paragraph 16 of its statement of defence that “the defendant made some ex-gratia payments to -- ex-staff after considering its relatively stronger financial position at the time”. The defendant did not also deny the fact that those so paid were retrenched in similar circumstance like the claimant. Therefore, this pleading of the defendant on its financial status at the material time is deemed abandoned as there is no evidence to support same and it is trite that the address of counsel cannot take the place of evidence no matter how brilliantly presented. Having admitted in its pleadings that it made some payments (ex-gratia) to some of its ex-staff previously retrenched in similar circumstances like the claimant; it is discriminatory for the defendant to deny payment of same to the claimant in my considered view. This is because, the practice of payment of ex-gratia to ex-staff of the defendant whose employments were determined in a particular manner has created an interest in the mind of other employees of the defendant whose employments were determined in similar manner that they also will enjoy such benefits, even if that is not part of their terms and conditions of employment. In fact, the National Industrial Court of Nigeria has now acknowledged that expectation interest in deserving cases may be recoverable by an employee against his employer. For instance, in Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No: NICN/ABJ/238/2012, the judgment of which was delivered on July 22, 2013; the NICN acknowledged that the practice of skipping of salary grade levels by Government can create an expectation interest, which in turn is capable of creating an entitlement or vested right in favour of the complainants who have seen their contemporaries benefiting from the practice. See also Mr. Patrick Obiora Modilim v. United Bank for Africa Plc. unreported Suit No: NICN/LA/353/2012, the judgment of which was delivered on 19th June 2014; Mr. Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No: NICN/LA/209/2016, the judgment of which was delivered on November 16, 2017 and Kefre Ekpo Inyang v. Alphabeta Consulting LLP unreported Suit No: NICN/LA/550/2016, the judgment of which was delivered on June 4, 2018. For this reason, it is my finding and holding that it is discriminatory and unfair labour practice for the defendant to refuse to pay the claimant the benefits it paid to the claimant’s contemporaries who were previously retrenched in similar circumstances like him. 55. Whether the Claimant’s Resignation was Voluntary or it was Forced, thus; amounting to Constructive Dismissal It is the case of the claimant as pleaded in paragraphs 35 to 40 of his Amended Statement of Fact that himself and his other colleagues were disengaged from the defendant’s employment on April 16, 2015 by being forced to resign and that they were paid salary in lieu of notice thereof. He went on that he was paid three months’ basic salary in lieu of notice by the defendant likewise his other colleagues so involved after their involuntary resignation without notice; referring to Documents C5, C17, C18 & C19. These documents are his letter of the said resignation and those of his colleagues in question. The defendant’s position is that the claimant resigned voluntarily and signed his letter without any evidence of threat. Document C.5 is the claimant’s letter of resignation titled “resignation of appointment”; it is dated April 17, 2015. See page 41 of the record. Its first paragraph states: Further to the re-organisation processes in the bank and following the advice of the management, I hereby write to resign from the employment of the Keystone Bank Limited effectively today, Friday 17th April, 2015. In the Human Capital Policies and Procedure Manual of the defendant, Document C.13, at page 71 thereof, which is page 172 of the Court’s record; paragraph 4.1 on that page is titled ‘Exit through Resignation/Retirement’; part of the requirements for an employee of the defendant who is resigning is to ensure that adequate prior notice of the resignation is given or that a draft is enclosed in lieu of notice. The claimant maintained that he did not give prior notice of his resignation neither did he pay any salary to the defendant in lieu of the immediate resignation. 56. Document C.15 is a document issued to the claimant by the defendant after his resignation. It has two pages, it is titled ‘END OF SERVICE ADVICE – DARLINGTON LAWSON’ and it is dated May 4, 2015; see pages 284 and 285 of the record. Paragraph one of the letter acknowledges the resignation of the claimant’s appointment with effect from April 16, 2015 even though the letter of resignation in question (Document C.5) is dated April 17, 2015 and the resignation was to take effect from that April 17, 2015. Page two of this document contains the analysis of the ‘Advise’ and it states in roll 25 that the claimant was paid the sum of N2,085,836.58 as three months’ basic in lieu of notice. From all these findings, I am satisfied that the claimant’s resignation of his appointment from the defendant bank was not voluntary but forced and I so hold. In paragraph one of Document C.5 as shown above; it is stated that the resignation of the claimant was as a result of the advice of the Management of the defendant, following the re-organization of the Bank. By the provision of paragraph 8.2 of Document C.13; the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised, 2013 the proper method of restructuring the Bank or eliminating employee due to re-organization in the Bank is by Redundancy. Nevertheless, instead of declaring Redundancy against the employees of the Bank that were affected by the re-organization, the Management of the defendant chose the seemed way out for the bank by forcing the staff, particularly; the claimant to resign his employment. Compelling an employee to resign from his employment is wrongful and it amounts to constructive dismissal; I so find and hold. 57. Globally and in Labour Law, Constructive Dismissal occurs when an employee resigns because his/her Employer’s behaviour has become so intolerable that the employee has no other choice but to resign, which is what has happened in the instant case. See the case of Ukoji v. Standard Alliance Life Assurance Co. Ltd. [2014] 47 NLLR (Pt.154) 531 at 556 paras A – E and pages 563 to 564 pars H – G. In constructive dismissal, the exact legal consequences differ from country to country; but generally, it leads to the employee’s employment/obligations ending abruptly and it gives the employee right to seek legal compensation against the employer, especially as section 19(d) of the NIC Act, 2006 permits this Court to award compensation or damages in deserving circumstances. For unexpectedly, inappropriately and unfairly determining the employment of the claimant by the defendant by constructive dismissal, it is my firm view that the claimant is entitled to compensation by virtue of the provision of section 19 (d) of the National Industrial Court Act, 2006 and I so hold. The defendant is hereby directed to pay to the claimant his eight months’ gross salaries as his compensation under this score. In paragraph 11 of the statement of defence and paragraph 6 of D.W.1’s written statement on oath the defendant admitted that the claimant’s gross salary per annum is N22,360,944.21. If the sum of N22,360,944.21 is divided by 12months gives us the sum of N1,863,412.017 and if this is multiplied by 8 months; it will give us the sum of N N14,907,296.1. Therefore, the defendant is to pay to the claimant, the sum of Fourteen Million, Nine Hundred and Seven Thousand, Two Hundred and Ninety Six Naira; One Kobo (N14,907,296.1) only as compensation for his constructive dismissal. 58. Whether the Claimant’s Exit was as a Result of Redundancy By his relief No. 3 before the Court, the claimant is praying for a Declaration that he is entitled to be paid his end of service benefits under redundancy as contained in the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013; to wit: the payment of monetary compensation of the sum of N20,074,000.00K (Twenty Million, Seventy-Four Thousand Naira) being his 100% of gross annual salary (less tax and bonus) as a Deputy General Manager. Document C.13; the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised, 2013 is at pages 103 to 190 of the record. Specifically, paragraph 8.2 at page 80 of this document, which is pages 181 to 182 of the record, provides for Redundancy this way: ‘Redundancy’ occurs when an employee’s job is restructured, or eliminated due to organizational or technological changes or contraction of available work, the causes of which is beyond the control of the Bank. If an employee cannot be placed in another position based on training, experience or qualifications, he is declared redundant. Where redundancy is declared, the affected employee shall be entitled to the monetary compensation as approved by the management as follows which will not be below the collective agreement in line with the country’s labour laws. 59. The claimant did not plead neither did he give evidence that his job was restructured, or eliminated due to organizational or technological changes or as a result of the contraction of available work. He did not also contend that the defendant could not place him in another position due to the restructure or elimination in the defendant because of his training, experience or qualifications. Furthermore, there is no evidence before the Court that the defendant declared the claimant redundant and then determined his employment. That notwithstanding, the claimant’s counsel addressed the Court extensively with several decided authorities on this issue in his bit to convince the Court that the determination of the claimant’s employment was as a result of redundancy. Nevertheless, it is my considered view that the primary materials to look at in arriving at this decision are the letter of determination of the appointment and the terms and conditions of the service enforceable between the parties; thereafter, we can apply those decided authorities to back up the terms and conditions agreed to by the parties on the contract. The claimant’s letter of resignation (Document C.5), which determined his employment, is not titled “Redundancy”. Also, in Document C.13; the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised, 2013 at 103 to 190 of the record, which contains the relevant terms and conditions of the claimant’s employment with the defendant on this issue; it is required that ‘Redundancy’ must be declared in order to entitle the claimant to compensation for it. Even the claimant pleaded in paragraph 27 of his Statement of Facts that Redundancy is required to be declared and gave evidence on same in paragraph 28 of his written statement on Oath at page 20 of the record. See also the claimant’s pleading in paragraph 27 of the amended Statement of Facts on the same issue. 60. The question here is whether redundancy was declared by the defendant in respect of the claimant’s employment so as to entitle him to monetary compensation for redundancy. Clearly, there is nothing before the Court showing that ‘Redundancy’ was declared by the defendant against the claimant in the bank at the material time. Therefore, I find and hold that the claimant is not entitled to any relief for redundancy because he was not declared redundant by the defendant as required in paragraph 8.2 at page 80 of Document C.13 (the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised, 2013), which is at pages 181 to 182 of the record. 61. Whether the claimant is entitled to gratuity from the defendant By the claimant’s relief No 4 as endorsed on his complaint, he is seeking for a declaration that he is entitled to be paid his end of service benefits under the Gratuity Scheme of the defendant, having spent a minimum of 6 years in the Bank’s services in line with the defendant’s Policy Manual Document C. 15. To the claimant, his gratuity is N12,450,000.00K (being his 100% of monthly total package, less bonus, multiplied by the number of years he spent in the services of the defendant, 6 years). I have found and held above that the employment of the claimant with the defendant was with effect from September 18, 2008. By the content of Documents C.15 and C.25 and the pleadings together with the evidence before the Court, both parties agreed that the claimant’s employment was determined on April 16, 2015. This means that the claimant’s employment with the defendant was with effect from September 18, 2008 to April 16, 2015 when he resigned; which is a period of over 6years. Document C.13, the Defendant’s Human Capital Policies and Procedures (HCP) Manual Revised 2013 provides gratuity scheme for the employees of the defendant who have been in its service for at least 5years; see page 129 of the Court’s record. The first table on this page shows that for staff who have served for 5years and above, he will be entitled to 100% of his monthly total package less bonus multiplied by the number of years spent in the services of the Bank. Consequently, I find, hold and declare that, as agreed by the parties, the claimant is entitled to 100% of his monthly total package excluding his bonus and multiplied by the six completed years he has spent in the services of the Bank. 62. In paragraphs 24 of the Statement of Facts and the Amended Statement of Fact, and then paragraph 25 of the written Statement on Oath of the claimant, he pleaded and testified that his annual salary less bonus and tax is N20,074,000.00. This fact was not denied neither was it controverted by the defendant. See paragraph 11 of the Statement of Defence and paragraph 6 of D.W.1’s evidence at page 238 of the record. Therefore, the fact stands as being admitted by the defendant; hence, it needs no further prove by the claimant. I am satisfied in the circumstance that the last annual salary of the claimant while he was in the employment of the defendant less bonus and tax is N20,074,000.00. In order to know the monthly salary of the claimant less bonus; the calculation goes thus: N20,074,000.00 divided by 12months gives us N1,672,833.33. If the sum of N1,672,833.33 is multiplied by 6, it will give us N10,037,000.00. Consequently, I find and hold that the claimant is entitled to the sum of Ten Million, Thirty Seven Thousand Naira (N10,037,000.00) only as his Gratuity for working with the defendant for six completed years before his employment was determined. 63. On the whole, I hereby declare, hold and order as follows: i. I declare and hold that since the defendant did not indicate its intension to object to Documents C.4, C.6, C.7, C.8, C.9, C.10, C.11, C.12, C.16, C.16 (a), C.17, C.17 (a), C.18, C.18 (a), C.19, C.19 (a), C.20, C.20 (a), C.21, C.22 & C.23 of the claimant within the stipulated period in Order 3 Rule 11 (2) & (3) of the NICN (CP) Rules, 2017 the defendant is deemed to have admitted the documents. Therefore, the defendant is precluded from raising the objection at this stage of the proceedings. I further hold that these documents were properly admitted as exhibits by this Court. ii. I declare and hold that the documents containing the terms and conditions of the claimant’s employment with the defendant are: Documents C.3, C.4, C.13, C.15 and C.25 respectively before the Court. iii. I declare and hold that the defendant took over the liabilities of the claimant’s employment from his former employer. I further declare and hold that the claimant’s date of employment with the defendant was with effect from September 18, 2008. iv. I declare and hold that it is discriminatory and unfair labour practice for the defendant to pay ex-gratia to some of its ex-employees whose employment were determined in the same or similar circumstances with that of the claimant without paying same to the claimant. v. I declare and hold that the claimant was forced to resign from his employment by the defendant; therefore, this amounts constructive dismissal. I further hold that the claimant is entitled to compensation for this abrupt and wrongful determination of his employment. vi. I declare and hold that the claimant’s exit from the defendant’s employment was not as a result of redundancy as contemplated in his contract of employment because Redundancy was not declared. However, I further hold that the claimant qualified to be paid gratuity by the defendant as he had worked with the Bank for over six years. vii. I order the defendant to pay to the claimant, eight months’ gross salary as compensation for his constructive dismissal, which is the total sum of N14,907,296.1 only. viii. In addition, I order the defendant to pay to the claimant, the sum of N10,037,000.00 as his gratuity. ix. The defendant is to pay to the claimant the sum of N250,000.00 as cost. x. The defendant is to pay the judgment sum to the claimant within 60days from today after which, it shall begin to attract interest of 15% per annum until the judgment sum is finally liquidated. xi. This judgment abides in the sister case with Suit No: NICN/IB/53/2016. Judgment is entered accordingly. Hon. Justice F.I. Kola Olalere Presiding Judge