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JUDGMENT 1. Introduction & Claims On 11/10/13, the Claimant approached this Court via his General Form of Complaint, Statement of Claim and Statement on Oath dated 11/10/13 respectively and by his amended processes dated 6/9/17, the Claimant sought the following reliefs from this Court - 1. A declaration that having put in 21 years 2 weeks of selfness, tireless and meritorious service in the Defendant’s bank and having attained the level of OFFICER – OG 3” in the service, the Claimant having being retired on the 30th October, 2007, is entitled to all emoluments which includes (a) incentive (b) gratuity (c) pension and all other benefits as a senior staff of the Defendant. 2. An order that the Claimant’s incentive and gratuity upon retirement shall be based on letter dated 28th May, 2007 titled “New Compensation Package. 3. The Claimant is entitled to the sum of =N=2,756,478.93 as shown in memo dated 28th May, 2007, titled “New Compensation package. 4. An order of the reconciliation of the Claimant’s loan account to establish the actual indebtedness of the Claimant =N=1,081,819.44 vis-à-vis =N=899,565.35. 5. An order that all unremitted part of the 2.5% deduction from the Claimant’s monthly emolument payable to the Claimant from October 1993 to October 2007 be calculated and rightly remitted to the Claimant’s Account Number 101053448-0 in the National Housing Fund at the Federal Mortgage Bank of Nigeria with immediate effect. 6. An order that the Claimant is settled to the balance of the Pension benefits based on his contribution for Nineteen and half (19½) years which is still with the Defendant. 7. General damages of =N=50,000,000.00 (Fifty Million Naira Only) The Defendant reacted by filing statement of Defence and all requisite frontloaded processes dated 31/1/14. By a Motion on Notice dated 6/6/14 and granted by the Court on 11/6/14,, the Defendant’s pleadings was accordingly amended. Trial commenced 26/3/14. Trial continued on various days but was eventually stalled on 11/6/2014 by reason of the Claimant’s Counsel illness that resulted in eventual demise. The case of the Claimant was to be subsequently taken up by another Counsel. 2. Case of the Claimant The Claimant opened his case on 26/3/14 and testified in chief as CW1. Claimant adopted his witness depositions dated 11/10/13 and 3/3/14 as his evidence in chief and tendered 25 documents as exhibits. the documents were admitted in evidence and marked as Exh. C1-Exh. C25 respectively. The case of the Claimant as revealed from his evidence in chief and pleadings filed is that he was employed by Defendant in 1986 vide a letter of appointment; that he so worked for defendant for twenty-one (21) years and two (2) weeks; that Defendant’s Employee Handbook guides the relationship between him and the Defendant; that he worked in several Departments and branches in the Defendant Bank and attended various trainings to enhance his performance, proficiency and the various promotion that earned him commendations and the eventual position of “OFFICER-OG3” in 2003. It is also the case of the Claimant that his Department, the Western Union Product Department received an “appraisal fallout” i.e result of a performance appraisal dated 13 November, 2006 in line with Section 8.21 of the Employee Handbook and the Department through the Branch Manager of the Defendant replies same in a memo dated 29/11/06 and was given first warning/notice; that he through the Branch Niger House of the Defendant bank explained the cause of the fall in performance of the Department; that his employment was purportedly terminated via a letter dated 30/10/07; that although no specific reason was given on the face of the termination letter, it could be deciphered from exchanges of internal/memos; that the Defendant converted the wrongful termination of employment to retirement and confirmed that the Claimant was retired; that in the course of the employment, the Defendant through its memo dated 28/5/07 placed the Claimant on a new compensation package; that the Defendant in the course of the Claimant’s employment from October 1993 to October 2007 deducted some specific amounts for National Housing Fund from the Claimant’s monthly emolument which over the years were not wholly remitted to the Claimant’s Account Number 101053448-0 with the Federal Mortgage Bank; that the Defendant, before the commencement of the Pension Reform Act 2004 operated an internal pension scheme from the confirmation of the Claimant’s employment from 1/5/87 when the Claimant became a permanent staff of the Defendant and that he wants all the unremitted portion of the deduction and portion of the deduction and also seeks that Court order remitting the sum in full and the specific order of court for general damages to the tune of =N=50,000,000 (Fifty Million Naira Only). Under cross examination, CW1 stated that his employment with the Defendant was terminated; that no reason was given for the termination of his appointment; that Exh. 18 is not applicable to only those still serving the Bank; that it applies to those inside and those who exit the Bank; that he benefited from Exh. 18 while he was with the Defendant. Witness testified further that there is no letter withdrawing his initial letter of termination of employment; that however the original copy of the said letter was received back and stamped received by the Human Capital Department of Defendant; that it was after that that his letter of retirement was given; that he referred to the Defendant Handbook as retiring early from the Defendant; that he is 52 years; that he was 45 years when his appointment was terminated by Defendant; that he served Defendant for 21 years 2 weeks; that he believes he is entitled to early retirement benefit of the Defendant; that he wrote a letter of appeal to the Defendant to convert the termination of his appointment to retirement and the Defendant did; that there is nothing like retirement on compassionate ground in the Employee Handbook; that conversion of termination of employment to retirement is also not in the Employee Handbook and that he applied to the Defendant to remit his pensions before the Pension Reform Act to his chosen Pension Fund Administrator. While being reexamined, Claimant stated that Exh. C17 was stamped received on 26/3/08 by First Bank Plc, Human Capital Head office and that the original of the letter was received by the Defendant. 4. Case of the Defendant The Defendant opened its case on 26/3/14. It called one Lorreta Akudo Uko as its lone witness. The witness adopted her witness deposition dated 4/2/14 as her evidence in chief. The case of the Defendant is that the Claimant was its former staff whose employment was terminated; that salary in lieu of notice was paid to him in addition to part of his outstanding entitlements and pensions which were applied to offset his indebtedness which arose from loans he took while in the employment of the Defendant that the Claimant has not contested the indebtedness, but has admitted same vividly; that knowing that he may be unable to make any head way by way of new employment, Claimant came back to the Defendant and requested that his letter of termination of employment be replaced with a letter of retirement; that based on his long epistle replete with woes that could befall him with the said letter of termination, the Defendant on compassionate ground issued him with a letter merely stating that they accepted his retirement; that at the point of the issuance of the said letter, the Claimant was no longer a staff of the Defendant by virtue of his letter of termination; that the process of re-engagement as copiously provided by the Handbook was neither activated nor applied to reabsorb the Claimant and that the employment of the Claimant was duly terminated; that his entitlement paid to him and that his loan account still remain in the debit till date. Under cross examination, the witness stated that the new compensation structure does not apply to exiting staff alone; that there is nothing like retirement without benefit stated in Exh. C31-68; that there is also nothing like retirement on compassionate ground in the Defendant Handbook Exh. C3; that Exh. C17 is stamped received by the Human Capital Department of the Defendant; that he could not say whether the original of Exhibit C17 is with the Defendant. While continuing in cross examination on 10/10/17, the witness added that she joined Defendant in 2005 as a Banking assistant; that she has worked in 3 Departments of the Bank; that she does not have a certified training but that she learnt on the job; that she has authority of Defendant to depose to the oath; that she had nothing to do with Claimant while she was at the Headquarter of the Defendant; that both Employer & Employee are bound by existing Handbook; that she has read the Handbook before; that Niger House Western Union was the last place Claimant worked with Defendant; that performance at the Western Union depends on how people sent money from abroad to Nigeria; that she could not confirm that Niger House Branch of Western Union was the 1st of Defendant; that no formal training is required to work at the Western Union except the initial training on the applications; that the Defendant complied with the provision of S. 8.2.1 of its Handbook in dealing with the Claimant; that the Claimant was at the same Niger House Western Union at the time and that she could not remember how much Claimant was paid at exit. 4. Submissions on Behalf of the Defendant The final written address of the Defendant was filed on9/5/18. In it learned Counsel set down the following 4 issues for the just determination of this case as follows - 1. Is an employer/employee entitled to terminate a contract of employment at any time, what is the position of the courts on the clear words of a written document and is party or court capable of imputing what is not contained on a clear content of a written document. 2. Is the Defendant indebted to the claimant under any grounds, corollary has the Claimant fully paid off his loan liabilities to the Defendant enjoyed whilst under the employment of the Defendant. 3. Is the Claimant entitled to general damages under this suit? 4. Is this suit not in abuse of the process of this Honourable Court? Arguing this issues, learned Counsel submitted that neither an employee nor an employee could be saddled with an unwanted contract of employment and that each party is entitled to leave the contract once the necessary notice or payment in lieu of notice has been given by the said party citing Ativie v. Kabel Metal Nigeria Limited (2008)5-6 SC (Pt. 11)47 at 58; that by paragraph 8.10 of Exh. C3 after confirmation, employment may be terminated by either side giving the other party one-month payment of equivalent amount of basic salary in lieu of the required notice period and that the Claimant was paid a month salary in lieu of notice of termination of employment; that after the termination of the employment of the Claimant, the Claimant was never re-engaged as provided by the Defendant's Employee Handbook and that the Claimant could not get from the back door what he cannot get from the front door; that the parties are bound by the content of their written agreement; that immediately after the termination of the employment of the Claimant the provision of Employee Handbook had ceased to be applicable to the Claimant and that after the termination of his employment, the Claimant never worked for the Defendant at all till date. Counsel urged the Court to hold that the Defendant was entitled to terminate the employment of the Claimant as it did; that no document exists to show that he was re-engaged in the services of the Defendant and that the document titled Retirement offers nothing as it conferred nothing on the Claimant after his termination of his employment. Counsel argued further that although the Defendant issued Exh. C21, it however in specific terms informed the Claimant that same did not carry any incentive with it; that the gratuity and pension due to the Claimant were taken into consideration when he was leaving the Defendant and came to the sum of =N=828,056.89; that they were applied to part liquidate Claimant's various loan obligations to the Defendant which stood at =N=2,899,123.48 leaving out the debit balance of =N=1,081,819.44. Counsel urged the Court to dismiss Claimant claim for any gratuity and pension. Finally, learned Counsel submitted that the Claimant is not entitled to any damages as sought submitting that if at all his remedy lies in award of salary for the period of notice and other legitimate entitlement to him at the time his employment was brought to an end citing Atvie v. Kabel Metal Nigeria Limited. Counsel prayed the Court to dismiss the entire case of the Claimant. 5. Submissions on Behalf of the Claimant On behalf of the Claimant, learned Counsel submitted a 17-page final written address on 8/6/18. In it Counsel set down 6 issues for determination as follows - 1. Whether the claim of the Claimant is for wrongful termination or wrongful retention of his retirement benefit. 2. Whether or not the claimant is entitled to retirement benefit by the combine effect of the Exhibit C3 (1-68) and Exhibit C 18. 3. Whether setting-off the =N=2,634,809.33 (Two Million, Six Hundred and Thirty-four Thousand, Eight Hundred and Nine Naira, Thirty-three Kobo) outstanding loan against the one year total emolument of the Claimant upon retirement, the Defendant is not indebted to the Claimant. 4. Whether the Defendant has any right to apply the Claimant’s Pension to service a debt that never was. 5. Whether the Claimant is not entitled to the 2.5% deductions from his monthly salary which were deliberately either held back by the Defendant or were incompletely remitted by the Defendant. 6. Whether the Claimant is not entitled to damages in this suit. Arguing these issues for determination, learned Counsel submitted that the Defendant failed to abide by the provision of Clause 8.21 of Exh. C3 on Non-performance; no counseling of the Claimant by the Management; no redeployment immediately to another department or business development office to guide against subjective appraisal reports and the defendant was under an obligation to comply with and follow the laid down procedures for the termination of the employment of the Claimant citing Steyer (Nigeria) Limited v. Gadzama (1995)7 NWLR (Pt. 407) 305 & Assam Oil Co v. Industrial Tribunal (1960)Illj 587. Counsel prayed the Court to so hold. Learned Counsel argued further that by Clause 8.21.1(a) of Exh. C3 & Exh. C18 the Claimant upon retirement is entitled to one year tital emolument which as at October 2007 stood at =N=2,756,478.63, that gratuity entitlement by Exh. C24, stood at =N=828,056.89; that although Mr. Chukwu Obasi was not called as a witness the Court is to look at the content of his analysis of the entitlement due to the Claimant as prepared by him and that the total entitlement stood at =N=2,756,478.93 upon retirement and that this sum plus gratuity in the sum of =N=828,056.89 less all variables, loans and medical brings the outstanding payment to the Claimant to =N=462,226.49. Counsel prayed the Court to so hold. It was also the argument of learned Counsel that it was wrong for the Defendant to have applied the Claimant's pension to the service or settlement of the Claimant's indebtedness and hence contrary to the provision of the Pension Reform Act 2004. Finally, learned Counsel submitted that the failure of the Defendant to abide by the provision of its own Employee Handbook entitles the Claimant to damages as claimed. He prayed the Court to so hold in favor of the Claimant. On the 19th of June 2018, learned Counsel to the Defendant filed a 5-page document referred to as a reply address. 6. Decision The case of the Claimant against the Defendant briefly is that he was a staff of the Defendant whose employment was terminated without notice but that he was paid a month salary in lieu of notice of termination; that in terminating his employment, the Defendant failed to comply with the relevant provisions of the Employee Handbook; that the termination was subsequently converted to retirement but that he was not paid his pension and retirement benefits which the Defendant claimed had been applied in part liquidation of the indebtedness of the Claimant. The position adopted by the Defendant is that the employment of the Claimant was terminated with payment of a month salary in lieu of notice; that his alleged retirement was without benefit and that the benefits due to the Claimant had been applied to defray the indebtedness of the Claimant with certain sum still outstanding. I read and understood all the processes filed by the learned Counsel on either side. I heard the testimonies of the witnesses called both in chief and under the intense of cross examination and also watched their demeanor. Having done all this and carefully evaluated all the exhibits tendered and admitted I set down the following issues for the just determination of this case - 1. Whether the employment of the Claimant was lawfully terminated. 2. Whether the Claimant is entitled to all or any of the reliefs sought. Before I proceed to consider these issues, it is important that I have a look at some of the documents tendered and admitted in this case. I should place it on record that the Defendant did not tender any exhibit. Thus all the exhibits in this case are those tendered by the Claimant. The employment of the Claimant was terminated by Exh. C17 dated 30/10/07. The termination was with immediate effect. The Claimant approached this Court for judicial redress by a General Form of Complaint dated 11/10/13. That was a period of almost 6 years interval. Now Exh. C25 is of major concern here. That document was addressed to the Claimant's Counsel. It was dated 24/1/14. There is no doubt the fact that this case had already commenced before the making of that document. The exhibit was tendered through the Claimant. The author of same one Anthony C. Obasi was not called. Not only was the exhibit one prepared during the pendency of this case, the opportunity to cross examine the author of same on the contents was not available since the author was not called. I have reasons to believe that it was prepared on the prompting of the learned Counsel to the Claimant. Indeed, the first paragraph of the covering letter said as much. This exhibit ordinarily ought not have been admitted in evidence. The law is trite a document as such made during the pendency of an action by a person interested is inadmissible. See S. 83(3), Evidence Act, 2011. This provision is anchored on the doctrine of lis pendens which prevents the admission of documents made pende lite. Achike, JSC had in Ogidi & Ors. v. Daniel Egba & Ors. (1999)10 NWLR (Pt. 621) 4 deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both Courts of law and Equity. In the case of Abdullahi v. Hashidu & Ors. (1999) 4 NWLR (Pt. 638) at 645 - 647 Pats Acholonu, JCA (of blessed memory) noted that by the provisions of Section 91(3) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent. See also Olomo v. Ape (2013) LPELR-22327(CA). Although the document was admitted, again the law allows the Court at the time of evaluation to discountenance a wrongly admitted exhibits. See Onochie v. Odogwu (2006) All FWLR (Pt. 317) 544. I therefore for the reasons as stated in this Judgment discountenance Exh. C25and expunge same from this case. The first issue set down for determination is whether the employment of the Claimant was lawfully terminated. This is imperative considering the fact that the Claimant has consistently argued in this case that he was a retired employee of the Defendant and hence entitled to retirement packages as contained in the employment contract he had with the Defendant. By a letter dated 30/10/07 - Exh. C17 the Defendant put an end to the employer/employee relationship between it and the Claimant. The termination was with immediate effect. Claimant was also by that exhibit informed that - ''You will be paid one-month basic salary in lieu of notice, in addition to your entitlements under the new Pension Reform Act''. I also find under Clause 8.10A of Exh. C3 that - ''After confirmation, employment may be terminated by either side giving the other one-month's notice or payment of equivalent amount of basic salary in lieu of the required notice period....'' It would seem to me that the Defendant having complied with its written contractual terms, that should be the end of the matter. However the Claimant had contended before me and his Counsel also strenuously argued that by Exh. C20 dated 27/3/08 the Claimant rather than having his employment terminated was merely retired by the Defendant making him to be entitled to all retirement benefits. There is evidence to the effect that Exh. C17 - Termination was served on and received by the Claimant. Until it is withdrawn, it remains effective for all intents and purposes. There is no evidence that it was ever retrieved or withdrawn by the Defendant. Exh. C20 made a reference to a letter by the Claimant. Unfortunately that letter was not placed before me. But even if it had been exhibited, it could not have successfully replaced the letter terminating the employment of the Claimant. Even the Claimant while being cross examined would seem to have accepted the fact that following the termination of his employment by the Defendant that was indeed the end of the matter. For, he had testified that he wrote a letter of appeal to the Defendant to convert the termination of his appointment to retirement and the Defendant did; that there is nothing like retirement on compassionate ground in the Employee Handbook and that conversion of termination of employment to retirement is also not in the Employee Handbook. Claimant did not contend that he was paid a one month basic salary in lieu of notice of termination. Yet Claimant contends that his employment was converted to retirement. I have sufficient evidence before me to hold and I do that the employment of the Claimant was lawfully terminated; that the letter of termination served on and received by him was not withdrawn and that he is not entitled to any retirement benefits as claimed. The second issue for determination is whether the Claimant is entitled to all or any of the reliefs sought. From the resolution of issue number 1, I have found and held that the employment of the Claimant was properly and lawfully terminated and that the Claimant was not a retired staff of the Defendant. I note that the first 3 reliefs sought by the Claimant are hinged on his argument that he was retired rather than his employment being terminated. The resolution of issue 1 therefore has knocked out any basis for the reliefs sought in reliefs 1,2 & 3. I therefore refuse and dismiss them accordingly for lack of proof by evidence. Relief 4 is for an order of the reconciliation of the Claimant’s loan account to establish the actual indebtedness of the Claimant =N=1,081,819.44 vis-à-vis =N=899,565.35. In all the exhibits tendered by the Claimant, there is no evidence of any loan taken by the Claimant from the Defendant. It is for the Claimant to inform the Court of how much loan he took, how much of same he has paid and how much outstanding. The Defendant has informed the Court of how it used the terminal entitlement of the Claimant to part defray his loan indebtedness. A Court of law cannot make an order in vacuum. I decline to make the order sought for lack of sufficient evidence. It is for the same reason that I also refuse to grant relief number 5 respecting unremitted part of the 2.5% deduction from the Claimant's monthly emolument payable to the Claimant from October 1993 to October 2007. Relief 6 is for an order that the Claimant is settled to the balance of the Pension benefits based on his contribution for Nineteen and half (19½) years which is still with the Defendant. The current statute on pension is such that the statute mandates every employee to maintain a retirement savings account with a Pension Fund Administrator. It is into that account that pension deductions are to be remitted. Exh. C24 is evidence of the fact that the Claimant maintained a retirement savings account with Premium Pension Limited. I have no evidence of pension deductions from the salary of the Claimant and not remitted to his Pension Fund Administrator. It is for the Claimant to show the Court by credible and cogent evidence the basis of his claims. I do not find that respecting this claim. I therefore refuse and dismiss same accordingly. Having failed to prove any of the reliefs sought as required by law, there is also no basis upon which this Court can or should award damages. The claim for damages is thus refused and dismissed. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety for lack of proof as required. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge