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BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo - President Hon. Justice B. B. Kanyip - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge DATE: 17th May, 2011 SUIT NO. NIC/18/2006 BETWEEN Mr. Godwin Tosanwumi - Claimant AND Gulf Agency and Shipping Nigeria Limited - Respondent REPRESENTATION Mr. V. O. Grant and Mr. James Ogwor, for claimant. Mr. Gamaliel Oko, for the respondent. JUDGMENT The claimant took out a writ of summons against the respondent on the 15th December 2006. By an amended statement of claim dated 2nd July 2007 and filed the same day, he claimed against the respondent as follows: 1. A declaration that the plaintiff is entitled to the sum of N21,646,140.70 (Twenty One Million, Six Hundred and Forty Six Thousand, One Hundred and Forty Naira, Seventy Kobo) being outstanding balance due to the plaintiff in respect of his gratuity/retirement benefits calculated in line with item 31(a) of the agreed Senior Staff Memorandum of Agreement or Conditions of Service subscribed to by the parties herein through their accredited representatives. 2. A declaration that the plaintiff is entitled to a further sum of N793,654.00 being 7 months basic salary for the period of 7 months which the plaintiff was compelled to remain at work while discussions and negotiation were ongoing about the plaintiff’s gratuity and retirement benefits i.e. between 15th of March 2006 and 17th of October, 2006. 3. An order compelling the defendant to pay over to the plaintiff a total sum of N22,439,785.70 (Twenty Two Million, Four Hundred and Thirty Nine Thousand Seven Hundred and Eighty Five Naira, Seventy Kobo) in respect of Reliefs 1 and 2 above. 4. A declaration that the plaintiff is entitled to interest on the above stated sum at the rate of 10% from the said 14th of March 2006 until judgment debt is liquidated. 5. An order compelling the defendant to pay to the plaintiff the sum of N20,000,000.00 (Twenty Million Naira) being damages for breach of the terms contained in item 31(a) of the said Senior Staff Memorandum of Agreement. 6. Other suitable reliefs. Accompanying the amended statement of claim are 9 documents to be relied on at the trial which are marked as Exhibits A, B, C, D, E, F, G, G1, H and H1. The claimant’s list of witnesses is dated 4th October 2007 and filed same day. The respondent filed its defence and counterclaim on 1st February 2008 together with its list of witnesses and six documents to be relied on at the trial. The respondent company counter-claimed against the claimant as follows: (a) The said sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) for loss of use of its offices during the period that the claimant was in occupation after his retirement from the services of the respondent. (b) Interest on the said sum stated in sub-paragraph (a) above at the rate of 20% per annum until judgment and its final liquidation. On the 21st July 2009, leave was granted to the respondent to call an additional witness. The claimant also filed his defence to the counterclaim on the 13th February 2008. Before hearing commenced, the court suo moto raised the issue of jurisdiction, specifically in respect of whether an individual can approach the court or not in view of the existing laws in force at that material time including the NIC Act 2006. Counsel were ordered to address the court on this issue. Also, the following legal practitioners Mr. Enobong Etteh, Mr. Bamidele Aturu, Mr. A. Owonikoko and Mr. B. E. Mbagwu who are not involved in the matter but practice in this court were invited by the court to give their views as amicus curiae on the said issue of jurisdiction. In a considered ruling delivered on the 14th June 2007 the court assumed jurisdiction to hear and determine this matter. The case of the claimant on the pleadings is that he worked for the respondent for 26 years and is now retired and resident at No. 18, Ekurede Road Warri. He pleaded that the respondent is a Shipping Company incorporated in Nigeria and that he was employed by the respondent in 1980 as Assistant Shipping Manager, from which position he rose to become Shipping Manager in the respondent’s Warri office. The claimant averred that by 1995 he had risen to the post of Senior Manager and that in the course of his employment with the respondent, he became a member of the Senior Staff Association of the respondent company. The claimant averred that there is an agreement between the Senior Staff Association and the Management of the respondent described as “Senior Staff Memorandum of Agreement” dated 19th March 1997 regulating the relationship between the respondent company and its entire senior staff including the claimant. The claimant averred that by the terms of the agreement, the respondent’s senior staff employees are entitled to receive a 5% of annual increment to a higher level irrespective of any Government grant and relied on the senior staff salary scale and the senior staff salary structure. The claimant pleaded that he started from salary scale 1 in 1995 and completed same in 2001 and by 2002 the respondent’s management introduced a special scale and he was placed on special scale 1 (SP1). The claimant averred that in line with the agreement, he received an annual increment in 2003 to special scale 2 (SP2). The claimant pleaded that in 2004 he was not moved to special scale 3 in breach of section 4 of the agreement and remained there in 2005 and 2006 by which time he should have been on special scale 5 with a total monthly emolument of N373,016.00. He averred that he remained on SP2 till his retirement in 2006. The claimant pleaded that he complained about the non-implementation of the agreement to the respondent’s Managing Director who then informed him that he was under instructions to retire him. The claimant pleaded that he received his letter of retirement dated 28th February 2006 and thereafter rejected the respondent’s computation of his retirement gratuity as it was not in line with the agreed senior staff memorandum of agreement. The claimant pleaded that he went ahead to give his own computation of his retirement gratuity in line with the memorandum of agreement and that he did not accept the respondent’s cheque because the amount did not represent his correct entitlements as contained in the agreement. The claimant pleaded that he did not hand over his office to the officer the respondent sent to take it over because of the unresolved issues. The claimant pleaded that he had further discussions on this issue with the respondent’s Managing Director and wrote to the respondent reiterating his position. The claimant pleaded that while he was waiting for a favourable response, he received the respondent’s solicitors letter dated 22/4/06 restating the respondent’s position and he replied through his own solicitor’s letter dated 28/4/06 restating his contention on the interpretation of item 31(a) of the senior staff memorandum of agreement. The claimant pleaded that both parties continued discussions with the claimant giving the respondent an alternative to pay in line with the respondent’s calculations but without prejudice to his right to resort to litigation to recover the difference in the figures as calculated by both parties. The claimant pleaded that the respondent insisting on its own interpretation of the senior staff memorandum of agreement as it affects him and by a letter dated 05/10/07 it sent a Zenith Bank cheque for the sum of N18,909,017.85. The claimant pleaded that he acknowledged receipt of the revalidated cheque and gave notice of the interest accrued on the said amount. That he also notified the respondent that he was entitled to his basic salary for the period of additional seven months he was compelled to remain at work while negotiations were on going concerning his entitlements. The claimant’s defence to the counterclaim is that the ethnic crisis in Warri and the Niger Delta crisis in general affected most businesses especially Marine related businesses such as the respondents. The claimant pleaded that the respondent company’s clients could not risk bringing in their vessels to the affected area and this was what affected the respondent’s business which could not have been prevented by the claimant. The claimant denied that he was not productive. He pleaded that he did not refuse to vacate the respondent’s premises but was only waiting for a proper handover process pending when he receives a response to his demand for the correct calculation of his entitlements. He pleaded that the respondent did not suffer any loss and is not entitled to be paid any amount of money. The claimant testified as the only witness in support of his claims. The testimony of the claimant was in terms of his case on the pleadings. The claimant was cross-examined by learned counsel to the respondent. He testified that he was employed by the respondent in writing on 10th September 1980 and admitted that he was paid the sum of N18 million via a Zenith Bank cheque and stated that there was no forwarding letter attached to the cheque. The claimant admitted that he received a letter dated 28/02/06 that showed the calculation of the money paid and how they arrived at it. The claimant stated that the computation and payment of his retirement benefits was based on the senior staff memorandum of agreement (Exhibit A). The claimant admitted that the compulsion to stay in office pending the resolution of his grievances was not in writing and then went on to deny that his staying back in the office after his retirement was because he was aggrieved. The claimant admitted knowing one Chief Akporiaye who is one of the directors of the respondent company. The claimant said it was not true that Chief Akporiaye appealed to him to leave the office after his retirement. He stated that Chief Akporiaye was abroad between March and December 2006 on a medical trip and that Chief Akporiaye told him that he had been briefed by the Managing Director about the problems between the respondent company and himself. The claimant stated that he was retired from the service of the respondent upon attaining 55 years which is the age of retirement provided in the respondent’s conditions of service. He admitted that his claim of 10% interest is not based on Exhibit A, the senior staff memorandum of agreement. The claimant said he had his letter of employment. There was no re-examination by the claimant’s counsel and the claimant closed his case. The case of the respondent company on the pleadings is that it admits that the claimant was employed by it in 1980 as Assistant Shipping Manager and had risen to the position of Senior Manager by 1995. The respondent denied that the claimant was a member of the senior staff association and pleaded that it was neither in breach of the senior staff memorandum of agreement nor in breach of the senior staff salary structure (Review by 5% as from January 2003), Exhibit C. The respondent company pleaded that it is its prerogative to carry out a review of salary and/or emolument for diligent and deserving members of staff and cannot be liable in damages for non-increment of any staff. The respondent admitted sending a revalidated Zenith bank cheque for the sum of N18,909,017.85 to the claimant for which the claimant duly acknowledged receipt. The respondent company pleaded that none of its staff has ever complained or objected to the manner of calculation of their entitlements. The respondent company pleaded that the continued occupation and detention of the respondent’s office by the claimant even after he had retired from the service of the respondent company was unconscionable, unreasonable and caused great embarrassment, hardship and huge financial losses to the respondent’s business. The respondent pleaded that all attempts by one of its directors Chief B. Akporaiye, to the claimant to consider an amicable settlement of the matter yielded no positive result. In its counterclaim, the respondent pleaded that the claimant’s diligence and effectiveness in carrying out his duties had dwindled so much that he was no longer very productive. The respondent pleaded that the claimant’s station in Warri was running at a great loss to the knowledge of the claimant who failed to do anything about it. The respondent pleaded that the claimant upon retirement refused to vacate its office premises neither did he release the official car attached to his office. The respondent pleaded that as a result of the claimant’s refusal to handover its properties in his possession and vacate the office, it suffered financial losses in the sum of N3,500,000 for loss of use of its office during the period the claimant was in occupation after his retirement from services. The respondent company called one witness, Mrs. Oyebola Omolara Oduwole, who testified that she is the Assistant Manager Human Resources Administration of the respondent. She said the claimant was an employee of the respondent. She said she knew this from the records made available to her by virtue of her position in the respondent company. The defence witness said she joined the respondent company on 13th May 2009 and that she has gone through the claimant’s personnel file. The defence witness stated that having looked at the case file, she was of the belief that the claimant disagrees with the calculation of his terminal benefits. The witness said from the records made available to her, the respondent calculated the claimant’s entitlements based on special scale 2 (SP2) while the claimant was of the opinion that the calculation should be based on based on special scale 5 (SP5). The witness said the respondent company has conditions of service guiding calculation of benefits and it provides that for every completed year of service, two hundred percent of the claimant’s total monthly salary is his entitlement. The witness said staff promotion with regards to the respondent company is management’s prerogative. The witness said from the records, the claimant refused to vacate his office. The rest of the testimony of this witness was in terms of the pleadings. The defence witness was cross-examined by the claimant’s counsel. The witness said that it is true that an employee working for the respondent is entitled to annual increment of his salary and that it is true that annual increment is usually communicated to the employee. The witness said all letters conveying the claimant’s annual increment to him are in his personnel file. The witness stated that the claimant’s last increment was effected in January 2006. The witness said she did not know if a copy of the letter of increment effective from 1st January 2006 was made available to the claimant. The witness confirmed that there is a letter of salary increment in respect of year 2004 and year 2005 in the claimant’s personnel file. The witness continued that from the records made available to her, she did not know if the letters of increment for years 2004 and 2005 were delivered to the claimant. The witness denied that the claimant has been stagnated on the same salary scale since year 2003. The witness said it was not true that the claimant has been on the total monthly emolument shown in his letter of retirement Exhibit G since year 2003. She stated that the claimant attained this last total monthly emolument on the 1st January 2006. The witness said she did not know the total monthly salary of the claimant as at 1st January 2003. The witness said the claimant’s total monthly emolument for year 2006 cannot be the same as that of year 2003. The witness confirmed that the Manager’s salary scale (Exhibit B) was operated up to year 2006. The witness denied that she promised to produce the respondent’s letters notifying the claimant of his annual increment. The witness said the prerogative rights of the respondent’s company cannot nullify the senior staff memorandum of agreement (Exhibit A). The witness said the claimant is not supposed to be on special scale 5 (SP5), but on special scale 2 (SP2). The witness confirmed that she is conversant with the salary structure of the respondent and said that a retiree of the respondent company is entitled, on retirement, to his gross monthly salary multiplied by 200% and multiplied by the number of years he has put in the company. The witness stated that the respondent company is bound to comply with the senior staff memorandum by agreement (Exhibit A) when any of its senior staff is retiring. The witness denied any knowledge of the Niger Delta crisis which restricted the respondent’s company’s maritime business between years 2004 and 2006. She confirmed that the claimant after retiring wrote a protest letter on the formula used in calculating his retirement benefits. The witness said she did not know whether the claimant within that period was awaiting the respondent’s reply. After the cross examination, the defendant closed its case and learned counsel to the parties were ordered to file their final written addresses. The respondent’s final written address is dated 7th October 2010 and filed on the 12th October 2010, while its reply on points of law is dated 29th November 2010 and filed on the 30th November 2010. The claimant’s final written address is dated 18th November 2010 and filed on the same day. The learned counsel to the respondent company framed one issue for determination as follows: Whether the claimant has proved his case as to be entitled to the judgment of this court in his favour. In arguing this sole issue, learned counsel decided to address each of the claimant’s claim as endorsed in his amended statement of claim. On claim 1, learned counsel pointed out that the claimant failed, refused and/or neglected to produce his letter of employment even though he alleged that he was given a letter of employment. He submitted that it is the duty of the claimant to prove the contract of service which is the bedrock of his case, citing Daodu v. UBA Plc [2004] 9 NWLR (Pt. 878) 276 at 296. He further submitted that the onus of proof of any fact lies with the person who alleges the existence of the fact and that to this end, the claimant has failed to discharge this onus placed on him. The respondent’s counsel stated that from the evidence during the trial, it was established that the claimant retired from the services of the respondent company and relied on the senior staff memorandum of agreement (Exhibit A) in making his claims. Learned counsel went on to submit that the claimant’s name does not appear anywhere in Exhibit A and that the claimant failed to produce anything showing he was a senior staff in the services of the respondent at the time of his retirement. He argued that he who asserts must prove, citing G. Chitex Industries Ltd v. Oceanic Bank International (Nig) Ltd [2005] 14 NWLR (Pt. 945) 392 at 411 and submitted that the claimant has failed to prove that he is a senior staff. The respondent company’s counsel submitted that from the evidence before the court it has been established that the claimant was on special scale 2 (SP2) and not special scale 5 (SP5) which he based his retirement benefits’ calculation on. He argued that the claimant did not adduce any evidence to prove that he was stagnated on special scale 2 (SP2) and went on to submit that it is trite law that an employer has discretionary powers to review or not to review salaries. That no employee can legitimately do that for himself. He referred to the case of National Union of Textile, Garment and Tailoring Workers v. Nigeria Kraft Bugs Ltd [1978 – 2006] DJNIC 29. Learned counsel further submitted that no form of interpretation of the senior staff memorandum of agreement (Exhibit A) can lead to the conclusion that the claimant is entitled to the sum of N21,646,140.70 which is his first claim. In respect of claim 2, the respondent company’s counsel submitted that the claimant did not produce any evidence in writing or otherwise from the respondent company which can be taken to have compelled the claimant, as he claimed, to remain in the office after his retirement from the service of the respondent. He submitted that the claim for basic salary for the period the claimant refused to vacate the respondent’s office after retirement is misconceived, frivolous, speculative and vexatious and he urged the court to dismiss this claim. In respect of claim 3, learned counsel adopted his submissions in respect of claims 1 and 2 above. He submitted that this claim has arisen from claims 1 and 2 and if the court dismisses these two claims then it cannot grant claim 3 as it would have failed. Learned counsel submitted that the claimant failed to lead or produce any evidence in support of this claim for N22,439,785.70. He urged the court to presume under section 149(d) of the Evidence Act that there was no such evidence in existence and if there was such in existence, it would be detrimental to his case so he decided not to produce them. The respondent company’s counsel further submitted that any pleading unsupported by credible evidence must be deemed to have been abandoned by the party pleading such a fact. He urged the court to dismiss this claim as it is frivolous, speculative and vexatious. In respect of claim 4, learned counsel submitted that the nature of the claim is one regulated by specific agreement for certain group of persons. That the court cannot go outside the senior staff memorandum of agreement (Exhibit A) to make any award. He submitted that unless the claimant can show that he belongs to that group and that there is a provision in Exhibit A entitling him to claim interest at the rate he is claiming he is not entitled to it and the hands of the court are tied as interest is not awarded as a matter of course. He cited A. R. Momoh v. Central Bank of Nigeria [2007] 14 NWLR (Pt. 1055) 504. He submitted that the claimant has failed to prove he is entitled to this claim and urged the court to dismiss it. In respect of claim 5, learned counsel to the respondent company submitted that the claim for general damages was made on the erroneous, faulty and mistaken belief of the claimant that there is a breach of Exhibit A by the respondent company. Learned counsel submitted that in construing a contract of employment, apart from relevant statutory provisions, the court can only rely on the intention of the parties revealed in the express or implied terms of their contract. That there is nothing in Exhibit A that could give rise to this claim for damages by the claimant. Learned counsel also submitted that the claimant has failed to discharge the burden placed on him, citing G. Chitex Industries Ltd v. Oceanic Bank International, supra and Nigeria Railway Corporation v. Charles Okwudili Umara [2006] 17 NWLR (Pt. 1008) 265 at 277 – 278. Ativie v. Kabelmetal (Nig) Ltd [2008] 10 NWLR (Pt. 1095) 399 and Barau v. Cubitts (Nig) Ltd [1990] 5 NWLR (Pt. 152) 630 were also cited by counsel in support of his submission that general damages cannot be awarded in a breach of contract of employment. In respect of claim 6, learned counsel submitted that the claimant did not tender any document or give any oral evidence of what he means by “other suitable reliefs” which he has left to the conjecture of the court. He urged the court to dismiss this claim. Learned counsel to the respondent company finally submitted that on the authority of NNPC v. Tijani [2006] 17 NWLR (Pt. 1007) 27 at 41 and Nwanosike v. Udosen [1993] 4 NWLR (Pt. 290) 684, the court is entitled to look at the records from which it will be seen that there is nothing else the claimant is entitled to aside from the sum of N18,909,017.85 which is the totality of the retirement benefits he has already received. He urged the court to refuse the claimant’s claims and dismiss the suit with substantial costs as the claimant has not proved his case. Learned counsel to the claimant framed three issues for determination as follows: 1. Whether the claimant is not entitled to annual increment of his salary having attained the special scale in line with Article 4 of the Senior Staff Memorandum of Agreement and the senior staff manager’s salary scale, Exhibits A and B respectively. 2. Whether the respondent’s computation as shown in Exhibit G is wrong regard being had to Article 31(a) of the Senior Staff Memorandum of Agreement – Exhibit A in these proceedings. 3. Whether the claimant’s computation as shown in Exhibit G1 and reiterated in Exhibit H1 is correct. In respect of issue 1, the claimant’s counsel submitted that a scrupulous implementation of Article 4 of the Senior Staff Memorandum of Agreement (Exhibit A) which has the heading “Annual Increment” and provides thus, “One step in salary structure in the same level”, would reveal that the claimant who was on SP2 ought to have been entitled to be on SP5 by 2006 when he retired. Learned counsel to the claimant further submitted that the failure of the respondent company to produce letters evidencing implementation of the said yearly increment will lead to the invocation of the presumption envisaged in section 149(d) of the Evidence Act that production of the said letters are not in support of their contention. The claimant’s counsel also submitted that failure by the respondent to show that this increment was effected is a clear breach of Exhibit A and the claimant is entitled to claim in line with his computation as shown in Exhibit G1 and Exhibit H1 which are copies of letters sent by the claimant to the respondent’s Managing Director and a copy of a letter addressed by the claimant’s counsel to the respondent’s counsel. The claimant’s counsel then urged the court to confine itself to the plain words and meaning in Exhibit A, citing Afrotec v. Mia [2000] 15 NWLR (Pt. 692) at 730 and hold that yearly increment is an entitlement and not a promotion. He urged the court to resolve this issue in favour of the claimant. Regarding issues 2 and 3, learned counsel decided to argue both together. He contended that they affect the correctness or otherwise of the different computations by both parties having regard to the provisions of Article 31(a) of Exhibit A which deals with retirement and provides as follows: Six months basic salary plus 200% of monthly total emolument for each completed year of service. Either party to give six months notice or payments in lieu. Based on this provision, the learned counsel submitted that the claimant is entitled to six months basic salary plus 200% of monthly total emoluments for each completed year of service. He submitted that applying SP5 scale, the claimant’s calculation based on his 26 years of service is a total of N40,553,158.55 less the N18,907,017.85 computed by the respondent company and already collected by the claimant. He stated that the difference is what the claimant is seeking in claim 1. The claimant’s counsel submitted that the respondent’s computation shown in the claimant’s letter of retirement (Exhibit G) does not have the additional 200% of total emoluments and the three years incremental arrears. Learned counsel then submitted that this omission accounts for the difference between the respondent’s computation and that of the claimant. He urged the court to apply the correct interpretation of Article 31(a). The claimant’s counsel also made an alternative submission to the effect that if the court holds that scale SP2 is the scale applicable in this matter as is being submitted by the respondent company, then the claimant’s total monthly emolument on SP2 as computed by the respondent company, has not been computed in accordance with Article 31(a) of Exhibit A. He submitted that a correct and proper application and interpretation of Article 31(a) reveals an outstanding amount of N14,174,540.08. Learned counsel to the claimant then informed the court that the claimant is withdrawing claim 2 and submitted that consequent upon the withdrawal, the claimant will sustain claim 3 with some adjustments subtracting the figure in claim 2 from that of claim 3 to arrive at the same figure in claim 1. In respect of claim 4 for 10% interest, the claimant’s counsel submitted that the claimant is entitled to interest on the amount claimed as this claim has arisen because the respondent company refused and neglected to pay the total sum after repeated demands and so interest is awardable in such circumstances. He submitted further that the refusal of the respondent company to pay the amount as demanded by claimant converts the difference in the calculations into a debt owed the claimant by the respondent company and so the claimant is entitled to interest payable on same. On the claim for damages, the claimant’s counsel submitted that this arises where the court has found that there has been a breach of the terms of engagement by either of the parties and in this case the respondent. He finally urged the court to hold that there was a breach by the respondent, use its discretion to award damages for the breach and enter judgment in favour of the claimant. Replying on points of law, learned counsel to the respondent company referred to section 137 of the Evidence Act and submitted that by virtue of that provision, the burden of proof is on the party who asserts in civil cases, citing Daodu v. NNPC [1998] 2 NWLR (Pt. 538) 353, Kala v. Potiskum [1998] 3 NWLR (Pt. 540) 1 and Braimah v. Abasi [1998] 13 NWLR (Pt. 581) 167. He argued that the claimant has failed to establish his assertion with credible evidence that he was stagnated on one level and he cannot shift that duty to the respondent as he is trying to do at page 5 of his final written address. The respondent’s counsel submitted that section 149(d) of the Evidence Act cited by the claimant is inapplicable. He referred to the Supreme Court decision in Calabar Central Co-operative Thrift & Credit Society Ltd v. Bassey Ebong Ekpo [2008] 6 NWLR (Pt. 1083) 362 at 395 and urged the court to discountenance the arguments of the claimant that seek to shift the burden of proof on him to the respondent. The respondent’s counsel also submitted that parties are bound by their pleadings and are not allowed to make a case that is at variance with their pleadings. He stated that the statement by claimant’s counsel on page 5 of the address that “this article connotes that upon attainment of a particular level, there will be annual increment by one step (every year) in the salary structure in the same level,” was never pleaded by the claimant nor evidence led in its support. He urged the court to discountenance it as the argument by counsel cannot take the place of evidence on record, citing the following cases: Bayo v. Njidda & ors [2004] 8 NWLR (Pt. 876) 544 at 636, Agbamu v. Ofili [2004] 5 NWLR (Pt. 867) 540 at 571, Calabar Central Co-operative Thrift v. Bassey Ekpo, supra and Tsokwa & Sons Company Ltd v. UBN Ltd [1996] 10 NWLR (Pt. 478) 281. In respect of claim 2, which the claimant withdrew, the respondent’s counsel submitted that it is trite law that since evidence was led on the claim, the claimant was cross-examined and the respondent had proffered arguments thereon, the proper order for the court to make on this claim is one of dismissal. On the claim for interest, the respondent’s counsel replied that the law is that interest is not payable or recoverable at common law in the absence of the following: a contract express or implied, mercantile usage, statutory provision as enunciated by the Court of Appeal in the case of Garba v. Sheba Int. (Nig) Ltd [2002] 1 NWLR (Pt. 748) 372 at 396 – 397. He submitted further that interest must be specifically pleaded and specifically proved, citing Texaco Overseas Nig. Ltd v. Pedmar Nig. Ltd [2002] 13 NWLR (Pt. 785) 526 and UBN Plc v. Ifeoluwa Nig. Ent. Ltd [2007] 7 NWLR (Pt. 1032) 71 at 83. The respondent’s counsel finally urged the court to dismiss all the claimant’s claims. We have carefully considered the pleadings and the evidence adduced by the parties as well as the address of learned counsel to the parties. It is not in dispute that the claimant was employed by the respondent company in 1980, served the respondent company for 26 years and retired from its services as a Senior Manager upon attaining the retirement age of 55 years in year 2006. The respondent company has admitted these facts in its pleadings. The dispute which has now arisen is that the claimant is dissatisfied with the formula adopted by the respondent company in the calculation of his retirement benefits and believes he has been short-paid. Following from this, these are the issues to be resolved: 1. Did the claimant retire as a senior staff of the respondent company? 2. Was the claimant denied annual increment by the respondent? 3. Has the claimant’s benefits been correctly computed? 4. Has the respondent proved its counter-claim? We shall begin with the claimant’s address wherein he stated that he was unequivocally withdrawing claim 2 as contained in his amended statement of claim. Claim 2 is a claim for a declaration that the claimant is entitled to a further sum of N793,654.00 being 7 months basic salary for the period of 7 months which the plaintiff was compelled to remain at work while discussions and negotiation were ongoing about the plaintiff’s gratuity and retirement benefits i.e. between 15th of March 2006 and 17th of October, 2006. It is trite law that when evidence has been led after parties have joined issues and the claimant’s counsel decides to discontinue or withdraw any of the claims or reliefs being sought for, the appropriate order is that of dismissal. See Eronini v. Iheuko [1989] 3 SC (Pt. 1) 30; [1989] 2 NWLR (Pt. 101) 46. Claim 2 as contained in the amended statement of claim is, therefore, dismissed. The respondent had argued that for failing to produce his employment letter, the claimant must be held to have no case against the respondent. This naturally raises the question whether the fact of employment must only be proved directly and not circumstantially. The respondent seems to think that only direct proof will suffice. In Okoebor v. Police Council & ors [2003] 12 NWLR (Pt. 834) 444, the Supreme Court held that when an employee complains that his employment has been wrongfully terminated, or that he was wrongfully dismissed, he has the burden not only to place before the court the terms and conditions of the employment but the manner in which the said terms and conditions were breached by the employer. The Supreme Court went further to hold that one major term of employment is the payment of salary which was pleaded in the statement of claim. In addition, other facts given in evidence by the appellant, which were not controverted or contradicted, proved that the appellant was employed as a policeman. This decision accords with the general tenor of the Labour Act Cap L1 LFN 2004, a legislation that does not insist that an employment contract must be in writing. The question therefore is: if an employment contract can be by conduct or be made orally, is it not logical that same can be proved circumstantially? As the Supreme Court held, there was pleading in terms of trial at the orderly room, the payment of salary and the tendering of two letters from the respondents indicating that the appellant’s petition/appeal against dismissal is being looked into. If all of these do not indicate the presence of an employment, what else can? Relating the case of Okoebor v. Police Council & ors to the case at hand, we hold that the fact of employment has been proved satisfactorily. Not only did the oral testimonies of the witnesses attest to this, the documents frontloaded by the parties all point to the fact of employment. In fact the respondent admitted that the claimant was its employee for 26 years and acknowledged the payment of retirement benefits to the claimant. We have no doubt whatsoever that the claimant was employed by the respondent and he discharged the onus of proof in that regard. The claimant gave oral testimony that in the course of his employment with the respondent company he became a senior staff and a member of the Senior Staff Association. He also testified that the Senior Staff Memorandum of Agreement (Exhibit A) regulates the relationship between the senior staff which includes him and the respondent company. The respondent denied this. However, the respondent company has admitted in its statement of defence, paragraph 5 of the amended statement of claim where the claimant averred that “by 1995 he had risen to the post of Senior Manager.” Also Exhibit B which was frontloaded by both parties and is titled “Senior Staff Salary Scale effective from July, 2004” is the manager’s salary structure that creates the special scale which the respondent through its witness has admitted that the claimant is on. Specifically the defence witness testified under cross-examination that the claimant is on special scale 2 (SP2). From the heading of Exhibit B “Senior Staff Salary Scale” it is clear that it is a salary structure reserved only for the respondent’s senior staff. The claimant retired as a senior manager. An employee holding a managerial position cannot be a junior staff. We are, therefore, satisfied that the claimant has discharged the burden of proof on him that he is a senior staff to whom the provisions of Exhibit A apply. The claimant’s case on the pleadings is that he was stagnated on special scale 2 (SP2) by the respondent from year 2003 till he retired in 2006 thereby denying him his annual increment in breach of Exhibit A which would have brought him to special scale 5 (SP5) when he retired. The claimant however did not lead oral evidence to support this assertion neither did he produce any documentary evidence such as his pay slips or letters from the respondent to establish this fact. Mere averment without evidence in proof of the facts pleaded is no proof. See Help Ltd v. Silver Anchor Ltd [2006] 5 MJSC 171 and Ifeta v. SPDC Ltd [2006] 7 MJSC 123. The respondent’s witness on the other hand gave oral evidence to the effect that the claimant’s last salary increment was effected on 1st January 2006 and that his incremental letters for years 2004 and 2005 were in the claimant’s personnel file. She also testified that the claimant’s rightful scale is special scale 2 (SP2). The law is that civil actions are determined on preponderance of evidence and balance of probability. Where the claimant has discharged the burden of proof placed on him by law, it then shifts to the respondent. In this instance, the claimant has not discharged the burden of proof on him to establish that he was denied his annual increment and stagnated on special scale 2 (SP2) for three years. He, therefore, cannot shift the onus to the respondent company as he tried to do in his address when he submitted that failure by the respondent to produce the letters evidencing the increment leads to the invocation of the presumption envisaged in section 149(d) of the Evidence Act. See SCC (Nig) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 28. We hold, therefore, that the claimant was not denied annual increment and that his salary scale is actually special scale 2 (SP2). The next question which calls for resolution is whether or not the claimant’s benefits have been accurately computed by the respondent. The claimant admitted receiving the sum of N18,907,017.85 from the respondent as retirement benefits but he insists that the basis of calculation is wrong and that he is entitled to more money. We find that the basis of the claimant’s claim is his calculation of his benefits using special scale 5 (SP5) which he believes is his rightful salary scale. We must state that an employee cannot ascribe to himself a salary scale which his employer has not given him neither can he make the decision as to whether or not he is to enjoy annual increment as the claimant has done. It is a decision for the employer who has discretionary powers to review or not to review salaries annually. See National Union of Textile, Garment and Tailoring Workers v. Nigeria Kraft Bags Ltd [1978 – 2006] DJNIC 29. In respect of the counterclaim, the respondent led no evidence to support its claim for N3,500,000.00 for loss of use of its office which the claimant refused to hand over to it after his retirement neither did the respondent make an issue of it in its final address to the court. This in our view amounts to an abandonment of the pleadings in the counterclaim by the respondent. See Ochin & ors v. Ekpechi [2000] 5 NWLR (Pt. 656) 225 at 240 and Enemuo v. Dim [2002] FWLR (Pt. 126) 1004 at 1019. Consequently, we hereby dismiss the respondent’s counterclaim. Having earlier established that the claimant is a senior staff of the respondent company, the provisions of section 31(a) of the Senior Staff Memorandum of Agreement which is Exhibit A is applicable to him. It provides as follows: Retirement: Six months basic salary plus 200% of monthly total emolument for each completed year of service. Either party to give six months notice or payment in lieu. Following from this provision, we hold that the claimant is entitled to retirement benefits of six months payment in lieu of notice as he was informed of his retirement on the 28th February 2006 which was to take effect from 15th March 2006, six months basic salary plus 200% of monthly total emoluments for each completed year of service. The respondent company shall compute the claimant’s benefits in this manner on the salary level special scale 2 (SP2) and pay to the claimant any amount outstanding. The claimant is not entitled to interest or damages or any other reliefs. Judgement is entered accordingly. We make no order as to costs. ………………………...…………. Hon. Justice B. A. Adejumo President …………………………….. …...…………...…………..…………… Hon. Justice B. B. Kanyip Hon. Justice O. A. Obaseki-Osaghae Judge Judge