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JUDGMENT The claimant took up a complaint against the defendant dated and filed on 22nd November 2010 claiming the sum of $99,000 (Ninety nine thousand United States Dollars) being the accrued performance bonus earned by the claimant prior to the determination of his employment which sum the defendant has refused to pay despite the claimant’s repeated demands; and interest on the aforesaid sum at the rate of 15% per annum from the 1st of December 2009 until the judgment debt is fully liquidated. Attached to the complaint are the statement of facts establishing the case, the list of claimant’s witness and the list of documents accompanying the complaint. Also accompanying the complaint is a power of attorney dated 9th November 2010 from Mr. Kurt Severinsen nominating and appointing Mr. Charles Edeki as his lawful attorney to – 1. Bring or defend any action or other proceedings in [Mr. Kurt Severinsen’s] name for any purpose whatsoever. 2. To enforce all remedies open to [Mr. Kurt Severinsen] against [Mr. Kurt Severinsen’s] previous employer for [Mr. Kurt Severinsen’s] unpaid terminal benefits. 3. To enter any agreement for the purpose of protecting [Mr. Kurt Severinsen’s] interest in connection with [Mr. Kurt Severinsen’s] previous employment. The power of attorney is certified by one Jette Dahl, a Notary Public in The Court in Hjorring, Denmark. The certification is dated November 9, 2010. The case of the claimant, going by his statement of facts dated 18th November 2010 is as follows: 1. The claimant is an expatriate and a former employee of the defendant. 2. The defendant is a registered company engaged in the business of telecommunications within the jurisdiction of this Court. 3. Sometime on or about the 13th March 2009 the defendant offered to engage the services of the claimant for the position of Director of Procurement vide a letter dated the 13th March 2009, which offer the claimant duly accepted. 4. Further to paragraph 3 above, the claimant avers that the defendant spelt out the rights, obligations and benefits due to the claimant as its employee in the said letter. 5. Clause 12 (a & b) of the offer letter contained the following express provisions – a) Base salary: $220,000 (two hundred and twenty thousand USD) per annum net of all taxes. b) Bonus: Annual bonus will be based on 30% (thirty percent) of the base salary for on target and 45% (forty five percent) for stretch on maximum bonus. 6. On 19th March 2010 the defendant handed the claimant a letter terminating his employment. 7. The claimant was also compelled by the defendant to sign a general release and discharge statement as a condition precedent to being paid his terminal benefits. 8. When the claimant read through the release and discharge statement and realised that some of his terminal benefits including his bonus had been excluded he protested by endorsing the following words on the release and discharge statement. “Exceptions: I do not make any commitments that are not already valid from the terms of my contract. I have an unpaid expense claim and a phone allowance not paid.” 9. The claimant avers that bonuses are paid by the defendant based on the key performance indices (KPI’s) set for staff by the defendant. 10. The claimant further avers that from the defendant's performance bonus scheme, employees on fixed term contracts are eligible to participate in the scheme. 11. The claimant exceeded his performance target and saved the defendant over 112 million United States Dollars in procurement costs for the last half of year 2009 and saved further procurement costs for the year 2010 prior to the termination of his employment. 12. By virtue of the fact that the claimant exceeded his performance target the claimant is entitled to 45% of his base salary of $220,000 as bonus which amounts to $99,000. 13. The claimant avers that employees eligible for bonus payment are entitled to payment of bonus that had accrued to their favour prior to the determination of their contract of employment. 14. After the termination of his employment the defendant demanded for the payment of his accrued bonus from the defendant vide numerous e-mails exchanged with the defendant. 15. The claimant avers that till date the defendant has failed to pay the claimant the sum that accrued to him as bonus prior to the determination of his employment. 16. The claimant further avers that he is entitled to interest for the delayed payment of his bonus having been deprived of the use of funds legitimately due to him by the defendant. 17. The claimant shall rely on all relevant documents at the trial of this suit including the power of attorney donated in favour of Charles Edeki, letter of employment, letter of termination of employment, statement of release and discharge, defendant’s bonus scheme, e-mail correspondence and letters exchanged between the parties and the claimant’s solicitor’s letter to the defendant. The defendant reacted by filing a preliminary objection regarding the jurisdiction of this court over the matter. This Court in a considered ruling on 10th March 2011 dismissed the said preliminary objection, whereupon the defendant filed its statement of defence dated and filed on 5th May 2011. This means that the objection as to jurisdiction raised by the defendant in paragraph 1 of its statement of defence, which to the effect that – By virtue of section 7(1)(a), (b) and (c) of the National Industrial Court Act No. 1 of 2006, which was the extant and applicable law at the time this suit was instituted by the claimant, this Court lacks the jurisdiction to hear and entertain this suit, is deliberately contemptuous of this Court, the same objection having been considered and dismissed by this Court on 10th March 2011. Given its superfluity, therefore, we shall ignore it for the purposes of this judgment. The case of the defendant, by its statement of defence, is as follows – 2. Save and except as is hereinafter expressly admitted, the defendant denies each and every allegation contained in the claimant’s statement of facts dated 18th day of November 2010 as if every such allegation were hereinafter specifically set out and traversed seriatim. 3. Except to state that the claimant was employed by the claimant (sic) [defendant?] on a fixed term basis/contract for a period of 2 (two) years certain, the defendant admits paragraphs 1, 2, 3, 4, 5 and 6 of the claimant's statement of facts. 4. The defendant denies paragraphs 7 and 8 of the claimant's statement of facts and, in answer to the allegations therein, states that, upon the termination of the claimant's employment, the claimant voluntarily signed “a General Release and Discharge Statement” dated the 18th day of March 2010 indicating the full and final settlement of all claims in connection with the claimant's employment with the defendant and also voluntarily declared, in good faith, that the defendant does not owe the claimant any further compensation under the terms of the contract between parties to this suit. 5. The defendant denies the allegations contained in paragraphs 9, 10, 11, 12, 13, 14 and 15 of the claimant's statement of facts and puts the claimant to the strictest proof thereof. In further answer thereto, the defendant states as follows: a) that under the defendant's Performance Bonus Scheme, only employees of the defendant as at the date of payment of performance bonus and who have worked for a minimum of six consecutive months are eligible to participate in the defendant's Performance Bonus Scheme. b) that payment of bonus is not automatic but is assessed based on a participating staff's performance in the previous year's performance appraisal, the participating staff's departmental performance and the defendant's corporate performance. Indeed the corporate performance which is the achievement of an aggregate of prior agreed key performance indicator constitutes the largest portion. c) that either party was entitled to terminate the contract at any time after the lapse of 3 (three) months upon the issuance of a 3 (three) months’ written notice failing which the other party is entitled to a 3 (three) months’ salary in lieu of notice. d) that the defendant lawfully and duly terminated the claimant’s contract of employment on 19th day of March 2010. e) that under the terms of the contract of employment between the claimant and the defendant, the claimant was not entitled to any bonus as claimed since the claimant's contract of employment with the defendant had been brought to an end on 19th day of March 2010 and was, therefore, no longer subsisting at the time the bonuses for the year 2009 were paid which was a requirement for eligibility for payment. Furthermore, the claimant had not undergone a formal personal and departmental appraisal for the previous full year at the time of the termination of his employment and a corporate performance benchmark or bonus had not been declared by the board of the defendant at that time. 6. The defendant denies the allegation in paragraph 11 of the statement of facts and puts the claimant to the strictest proof of the averment therein. In further answer to the allegation therein, the defendant states that the claimant did not save the defendant over $112,000,000.00 (One hundred and twelve million United States Dollars) in procurement costs for the last half of the year 2009 and further procurement cost for the year 2010 or at all and that this allegation is false, a figment of the claimant's imagination and a ploy by the claimant to justify his claim that he is entitled to payment of bonus under the defendant's Performance Bonus Scheme. The defendant challenges the claimant to produce evidence of this claim at the trial of the suit. The defendant also states that regardless of this claim, the mode of calculation of bonuses includes more than individual performance as stated in paragraph 5(b) above. 7. The defendant denies paragraph 14 of the statement of facts and puts the claimant to the strictest proof thereof. In further answer thereto, the defendant repeats the averments in paragraph 5 hereof and states that only employees who are in the employment of the defendant as at the date bonuses are paid are entitled to payment of bonus under the defendant's Performance Bonus Scheme and that the claimant is not entitled to any bonus or any interests thereon since the claimant's employment had come to end before the bonuses for the year 2009 were declared and thereafter paid by the defendant to its employees. 8. In further answer to paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the claimant's statement of facts, the defendant shall contend, at the trial of this suit, that the claimant, by signing the Discharge and Release Certificate, confirmed acceptance of the sum of $73,658.85 (seventy¬-three thousand, six hundred and fifty-eight US Dollars and eighty-five Cents) in full and final settlement of the claimant's employment benefits and all claims that the claimant might have against the defendant in respect of the claimant's contract of employment and its termination and has, therefore, fully waived and abandoned any claims that the claimant might lawfully have against the defendant regarding the termination of the claimant’s contract of employment, including any entitlement to bonus payment and is, therefore, estopped from making any further claims against the defendant regarding his entitlements consequent upon the termination of the claimant’s contract of employment. 9. The defendant avers that it is not liable to the claimant for the claims set out in the statement of facts or to any other claims. 10. Wherefore the defendant will urge this Court to dismiss the claimant’s claims in its entirety as unmeritorious, frivolous and vexatious. At the hearing of the matter, both parties called in oral evidence. Mr. Charles Edeki, a legal practitioner, in whose favour the claimant gave a power of attorney, testified for the claimant; while Mr. Akindele Abe, who works in the Human Resources Department of the defendant company, testified for the defendant. Under examination-in-chief, the claimant’s witness testified that he worked with the claimant for several months as his direct subordinate when he (the witness) was in paid employment in the Contract and Procurement Department of Etisalat Nig. Ltd. That the defendant does business in Nigeria under the name Etisalat Nig. Ltd. He acknowledged that the claimant appointed him as his attorney to pursue the recovery of his terminal benefits from the defendant, referring to Document 1 frontloaded. He further testified that there is a letter of employment as well as a letter of termination of employment of the claimant, referring to Documents 2 and 3 frontloaded. Further still, that the claimant frontloaded a document labeled, “General Release and Discharged Statement”, referring to Document 4 frontloaded, and that this document was issued to the claimant by the defendant. To the witness, the claimant instituted this action because part of his terminal benefits, in particular his annual bonus for 2009 which he was entitled to by virtue of his letter of employment and the performance bonus policy and scheme stated therein, was not paid to him upon the termination of his employment. The witness continued that he does not know why the claimant was not paid his bonus. That the claimant wants this court to grant him the reliefs claimed together with the accruing interest as the claimant has been denied the investment value of the bonus claimed. Under cross-examination, the claimant’s witness asserted that the claimant worked for the defendant between July 2009 and April 2010. That he (the witness) was still in the employment of the defendant when the claimant’s appointment was terminated. That he (the witness) resigned from the defendant’s employment on April 30, 2010. The witness continued that while in the employment of the defendant, he was paid bonus for 2009 in 2010. The witness acknowledged that payment of bonus is based on the performance of the employee and there is a stated procedure for assessment of employees in terms of their entitlement to the bonus. That bonus is not automatic. He acknowledged that there is no document in the case file to show that the claimant was assessed for the payment of bonus. The witness then testified that it is only partially true that the testimony he gave is as told to him by the claimant and that he was not copied in terms of the correspondences between the claimant and the defendant in the build up to his case. He went on to testify that he believes the claimant is at the moment in Denmark and that he is not aware that the claimant is incapacitated and so cannot come to court. Under re-examination, the witness testified that as far as the Contract and Procurement Department was concerned the procedure for assessment involves two modalities – 1. The user’s satisfaction survey by which an employee exceeds his target. Such an employee will be entitled to 45% of his basic salary which is described as stretch on maximum bonus. 2. Cost savings which is usually determined by subtracting the total cost of all expenditure from the initial cost proposed by vendors in respect of the procurement of goods and services. When the cost savings exceed the target set, the particular employee or Department will be deemed to have met or exceeded the target and so are entitled to bonus. At this point, the claimant closed his case. In opening its case, the defendant called in Akindele Abe, a staff in its Human Resources (HR) Department, as its witness. The defendant’s witness acknowledged knowing the claimant, who he said used to be an employee of the defendant. That the claimant was on a fixed term contract (2 years) certain and whose employment was terminated on 19th March 2010. The defendant’s witness further stated that he knows why the claimant brought the defendant to court. That the claimant is in court to claim his entitlement as to performance bonus which other employees were paid after his employment was terminated. That the claim of the claimant is that he was not paid performance bonus. Continuing, the defendant’s witness asserted that he knows why the claimant was not paid performance bonus. To the witness, the claimant was not so paid because he was not in the employment of the defendant when the performance bonus was declared and paid, which is one of the eligibility criteria for payment. Secondly, he did not participate in the performance appraisal exercise for the relevant financial year i.e. 2009. Thirdly, his contract was terminated as opposed to expiration of the contract. The defendant’s witness, however, said that it is not true that the claimant saved the defendant the sum of USD 112 million in procurement cost for the last half of 2009. Also that he is not aware that the claimant was assessed as to his performance in such a way as to justify the claimant’s assertion that he exceeded his performance target by 45%. That when the claimant’s employment was terminated, his entitlements were paid to him and he signed a discharge and release statement. Under cross-examination, the defendant’s witness testified that he was employed on 29th June 2009 as a specialist in industrial relations. That his job schedule between June 2009 and April 2010 included human resources policy formulation, review and implementation. He was also in charge of disciplinary issues by which he handled secretariat matters dealing with disciplinary hearings. He was also in charge of exit administration, grievance management, etc. But that this job schedule did not include assessing Directors of the company. The defendant’s witness then acknowledged that he is aware that the claimant was the Director in charge of procurement. Continuing, the defendant’s witness stated that as HR personnel, he knows key members of staff of the defendant company. He acknowledged knowing Mr. Charles Edeki (who was the Senior Manager, Technical Procurement and Marketing), and Miss Olivia Ikeguonu (who was the senior Manager, General Procurement and Marketing). That these two individuals were direct subordinates of the claimant. The defendant’s witness acknowledged he was aware that these two individuals were paid performance bonuses for 2009. To the defendant’s witness, it is not necessarily that these two were paid performance bonuses because the Department met the performance indices. He continued that performance bonuses are discretionary on the part of the company. He went on, however, that he does not know the exact time that performance appraisal for 2009 was carried out. As for Miss Olivia Ikeguonu and Mr. Charles Edeki, that their performance appraisal could not have taken more than one week. He then asserted that he knows that Mr. Edeki resigned his appointment but not the exact date or time that he resigned. To the defendant’s witness, the claimant at the point of signing the discharge and release statement, noted certain claims that were yet to be paid which be believed he was entitled to. That the claims which include telephone expense reimbursement and expenses relating to travels were subsequently paid. Under re-examination, the defendant’s witness told the Court that the claimant noted his additional claims on the face of the discharge and release statement. The defendant then closed its case. Parties were then asked to file and serve their written addresses as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This the parties did. In its written address dated and filed on 13th March 2012, the defendant framed the following issues for the determination of the Court – 1. Whether having regard to the defendant's Performance Bonus Policy, the claimant was entitled to performance bonus for the year 2009, his contract having been terminated before the bonus was declared and paid and having not participated in the performance appraisal for the year 2009. 2. Assuming (but without conceding) that the claimant is entitled to bonus for the year 2009, whether the claimant has not waived his right to claim for same, having regard to the Release and Discharge Certificate which he voluntarily executed. 3. Assuming (but without conceding) that the claimant is entitled to bonus for the year 2009 as claimed, whether the claimant has provided any evidence of having saved the defendant the sum of $112,000,000 (one hundred and twelve million United States dollars) in procurement costs, including evidence of exceeding his performance target as a basis for the amount being claimed. Regarding issue 1, the defendant submitted that the claimant is not entitled to bonus for the year 2009, having regard to the provisions of the defendant's Performance Bonus Policy (“the Policy”), since he was no longer in the employment of the defendant at the time the bonus was declared and paid and did not participate in the performance appraisal that preceded and prequalified employees for bonus for the year 2009. To the defendant, the Policy provides under the sub-head entitled “Eligibility” that employees on fixed term contracts (who are eligible for bonus payments as per their contracts will participate in the scheme. However, if the said contract expires during the financial year and is not renewed, the employee will be paid a pro-rated performance bonus amount in relation to the period worked in that financial year (underlining is the defendant’s). The defendant then submitted that the only circumstance provided for in the Policy for payment of bonus to a fixed term employee after he has ceased to be in the employ of the defendant is in the event that the contract expired during the financial year and is not renewed. There is no provision for payment of bonus to a fixed term employee whose contract, as in the case of the claimant, was terminated before the bonus was declared and paid. That the natural inference from this is that it was not intended that fixed term employees, such as the claimant, shall be entitled to bonus if the employment contract is terminated prior to payment of bonus. That any contrary interpretation would amount to this court interpreting “expiration” to mean the same thing as “termination” and, therefore, re-writing the Policy. The defendant continued that expiration of contract of employment is not the same thing as and should not be confused with termination. It is noteworthy, that the claimant’s contract of employment was, by the letter dated 10th March 2009, stated to be for a two year term, starting from 1st April 2009. However, the contract was terminated by a letter dated 18th March 2010, effective 1st April 2010. Clearly, therefore, the claimant's contract still had one year to run at the time it was terminated. It cannot, therefore, by any stretch of reasonable imagination be contended that the contract had expired so as to entitle the claimant to the payment of bonus under and by virtue of the relevant provisions of the Policy. To the defendant, the Black’s Law Dictionary (6th Ed.) defines “expiration” (at page 579) as: “Cessation; termination by mere lapse of time, as the expiration date of a lease, insurance policy, statute, and the like”. At page 1471, the Black’s Law Dictionary states that the term termination “with respect to a lease or contract, refers to an ending usually before the end of the anticipated term of the lease or contract, which termination may be by exercise of one party of one of his remedies due to the default of the other party”. The defendant then urged the Court not to read into the Policy terms which are not therein and thereby re-writing the parties’ contract or making a new one for them. That it is settled that the role of the court is to interpret contract between/among parties and not to re-write or make new ones for them, relying on the following cases: Zakhem Construction (Nig) Ltd v. Mr. Emmanuel Nneji (Trading under the name and style of Emmaco Group of Companies) [2002] 5 NWLR (Pt. 759) 55 at 55 F – G; Union Bank of (Nig.) Ltd v. Sax (Nig.) Ltd [1994] 8 NWLR (Pt. 361) 150 and Macaulay v. NAL Merchant Bank Ltd [1990] 4 NWLR (Pt. 144) 283. The defendant also referred the Court to the case of Wejin v. Ashaka cement co. Ltd [1991] 8 NWLR (Pt. 211) 608 at 615, where Ndoma Egba, JCA held that – The interpretation of contracts shall exclude moral questions, unless these are made part of it. A trial court must, therefore, confine itself to the terms negotiated, agreed upon and committed in writing by the parties. Nothing extraneous should be read into it. These are the conditions parties accepted. These cannot be edited or re-edited”. That in the case of Afrotec v. M.I.A [2001] 6 WRN 65 at 112, Igu, JSC held that – The law is settled that in interpreting the provisions of a written contract, no addition or subtraction there from is permissible. The words used must be given effect to and no word should be ignored in interpretation of the intention of the parties, otherwise the Court will be seen as rewriting the agreement between the parties. Furthermore, the defendant submitted that the claimant is not entitled to be paid bonus because he was no longer in the employment of the defendant when the bonus was declared and paid and did not also participate in the performance appraisal exercise which was a condition precedent to payment of bonus and, which according to the unchallenged evidence of Mr. Akindele Abe (DW1), was only carried out after the claimant’s employment had been terminated. As admitted under cross-examination by the claimant's witness, Mr. Charles Edeki, payment of bonus is not automatic, but is based on performance of the employee involved, which performance is assessed through a stated procedure. Based on the foregoing, the defendant urged the Court to hold that the claimant was not entitled to payment of bonus as claimed. Regarding issue 2, the defendant submitted that even if the claimant was entitled to payment of bonus (which is denied) he has waived the right to claim for same. That without prejudice to the defendant's arguments as set out above, even if (which is vehemently denied) the claimant is entitled to payment of bonus for the year 2009 as claimed, he has waived the right to demand and claim for same based on the terms of the General Release and Discharge Statement which he voluntarily signed on 19th March 2010. That in the first paragraph of the Release and Discharge Statement, the claimant declared as follows – I Kurt Severinsen, hereby confirm the acceptance of the sum of $73,658.85 USD (Seventy-Three Thousand, Six Hundred and Fifty-Eight US Dollars and Eighty-Five Cents), in full and final settlement of my end of employment benefits and all claims that I may have against Emerging Markets Telecommunication Services Limited (the “Company” with respect to my employment and its termination by the Company”. In the last paragraph of the document, Mr. Severinsen further declared that – I forever waive, absolve, indemnify and hold the company, its directors, managers, servants, employees and agents harmless from and against any and all claims, proceedings, costs, liabilities and expenses of whatever nature, which may be suffered or incurred by, or made against the company as a result of acts performed by me in the course of my employment and hereby declare, voluntarily and in good faith, that the company does not owe me any further compensations (the underlining is the defendant’s). The defendant then submitted that the claimant has, by the clear and unambiguous terms of the Release and Discharge Statement, waived any claim he may have for payment of bonus (which is not admitted) and is, therefore, estopped from claiming for the said bonus. That section 169 of the Evidence Act No. 18 of 2011 provides that – When one person has by...a deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true, and to act upon which belief, neither he nor his representatives in interest shall be allowed, in any proceedings between himself and such person or such persons representative in interest, to deny the truth of that thing. Furthermore, that in the case of Omonbiyi v. UBA Ltd [2001] 5 NWLR (Pt. 706) 240 at 254 A – D, the Court of Appeal (per Akaahs, JCA) while interpreting section 151 of the now repealed Evidence Act Cap E 14 LFN 2004 (which is in pari materia with section 169) and relying on the authority of Iga v. Amakiri [1976] 11 SC held that – ...if a man either in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon in that way, in the belief of the existence of such a state of fact to the damage of him who so believes and acts, [he] is estopped from denying the existence of such a state of facts…if a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying the facts as represented. The Court was also referred to Nigergate v. Niger State Govt [2008] All FWLR (Pt. 406) 1938 at 1961 D – H. To the defendant, it is to be noted that although the claimant alleged in paragraph 7 of the Statement of Facts that he was “compelled by the defendant to sign a General Release and Discharge statement as a condition precedent to being paid his terminal benefits”, during his testimony, Mr. Edeki, the claimant’s appointed attorney/witness did not lead any evidence to establish that allegation of compulsion. The defendant then urged the Court to disregard that allegation, deem same as having been abandoned and having not been proved, and to give full effect to the General Release and Discharge Certificate. The defendant continued that in the case of Ariori v. Elemo [1983] All NLR 1 at 11, the Supreme Court held that a person is entitled to waive any rights or benefits to which he is entitled to. The Court, per Eso, JSC held that – The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both – See Vyvyan v. Vyvyan 30 Beav 65 as per Sir John Romilly MR at p. 74 [reported also in 54 ER 817]. The exercise has to be a voluntary act. There is little doubt that a man who is not under any legal disability should be the best judge of his own interest. If, therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue. See also Halsbury Laws of England 3rd edition Volume 14 paragraph 1175. At page 12 the Court held further that – When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. To the defendant, the “claimant cannot probate and approbate at the same time”. The defendant further submitted that the endorsement made by the claimant on the face of the General Release and Discharge Statement in the following words, “I have an unpaid expense claim and a phone allowance not paid”, does not in any way whittle down the legal effect of or vitiate the efficacy of the General Release and Discharge Certificate which the claimant executed and is, therefore, immaterial in considering its legal effect. Firstly, the endorsement is inconsistent with the claimant’s clear and voluntary declaration that the sum of $73,658.85 was accepted by him in full and final settlement of his end of employment benefits and that all claims “that I may have against Emerging Markets Telecommunication Services Limited with respect to my employment and its termination by the company”. The endorsement is also inconsistent with the waiver, release and discharge which he went further to declare in the last paragraph of the document as set out above. Secondly, the letter of termination dated March 18th 2010 requested the claimant to “kindly sign the enclosed company of this letter and the General Release and Discharge Statement, and return them to us signifying your understanding of the contents of this letter and the General Release and Discharge Statement and acceptance of the above stated sum in full and final settlement of all claims in connection with your employment”. To the defendant, therefore, from the letter of termination, the claimant was presented with the choice of either accepting the amount paid to him in full and final settlement of all claims or refuse to accept the offer and claim for whatever he believed was his entire entitlement. Clearly, therefore, the letter did not make for half-hearted acceptance of the offer therein contained. Accepting with one hand the sum of $73,658.85 followed by signing the General Release and Discharge Statement and turning round to claim for alleged bonus which he did not even indicate on the General Release and Discharge Certificate amounts to “probating and approbating” at the same time, which the law frowns at. Finally on this point, the defendant submitted that even if the notes endorsed by the claimant on the General Release and Discharge Statement is of any relevance in construing the document (which is, however, denied) then the endorsement would be construed contra proferentem i.e. strictly against the claimant, such that whatever claim was not stated therein must be deemed excluded and waived. What this means is that the most generous interpretation that could be given to the endorsement made by the claimant on the case of the General Release and Discharge Certificate is that claimant cannot make further claims outside the unpaid expenses and phone allowance which he stated to be outstanding. Regarding issue 3 i.e. whether, assuming (but without conceding) that the claimant is entitled to bonus for the year 2009 as claimed, the claimant has provided any evidence of having saved the defendant the sum of $112,000,000 (one hundred and twelve million United States dollars) in procurement costs, including evidence of exceeding his performance target as a basis for the amount being claimed, the defendant contended that the claimant failed to lead evidence to show that he exceeded his performance target and that he saved the company “the sum of =N=112 million” in procurement costs for the last half of 2009 and 2010 and that he thereby exceeded his key performance target and so was entitled to 45% of his base salary as bonus. The defendant continued that although the claimant claims in paragraph 12 of the statement of facts that he exceeded his performance target and was, therefore, entitled to 45% of his base salary, during trial, however, the claimant did not provide any evidence to redeem those allegations. That in his evidence-in-chief, the claimant's witness, Mr. Charles Edeki, informed the court that there were two procedures for assessment in the defendant’s Contract and Procurement Department, where the claimant worked. That accordingly to the claimant’s witness, the procedures were i) the user’s satisfaction survey by which an employee exceeds his target. Such an employee, according to Mr. Edeki, would be entitled to 45% of his basic salary which is described as a stretch on maximum bonus and ii) cost savings which is usually determined by subtracting the total cost of all expenditure from the initial cost proposed by vendors in respect of the procurement of goods and services. According to Mr. Edeki, when the cost savings exceed the target set, the particular employee in the Department would be deemed to have met or exceeded the target and entitled to bonus. However, Mr. Edeki did not provide details of the purported costs, including, for instance, and to use the formula he put forward, how much the vendors proposed and how much was actually paid, the difference between what the vendors proposed and what was actually paid and evidence that the savings were attributable to the claimant. To the defendant, the law is settled that he who asserts must prove, relying on the following cases – Vincent U. Egharevba v. Dr. Orobor Osagie [2009] 18 NWLR (Pt. 1173) 299, particularly at 315 B – C; Andong Adake & anor v. Adamu Akun [2009] 14 NWLR (Pt. 840) 418, particularly at 430E and Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 134 particularly at 171 G – H. The defendant continued that since the claimant has failed to lead evidence to prove how he saved the defendant the humungous sum of $112 million dollars and which savings he used to self-assess himself as having exceeded this performance target and, therefore, entitled to 45% of his salary as bonus for the year 2009, there is, therefore, no evidence or legal basis on which the Court could determine that the claimant is entitled to the amount claimed, even assuming (but without conceding) that he was entitled to bonus for the year 2009. That it is well established, as held by the Supreme Court in the case of Nathaniel Onwuka Ajero & anor v. Bernard Ugorji & 6 ors [1999] 10 NWLR (Pt. 621) 1 particularly at page 13 para A and page 19 para H, that a mere assertion or statement should not be accepted without proof and averment in pleadings cannot be accepted as evidence simpliciter without calling evidence to prove it. The defendant also referred the Court to the case of Andong Adake & anor v. Adamu Akun (supra) at 430 E – F and then submitted that the law is now settled that averments in pleadings do not constitute evidence and cannot be substituted for evidence and do not amount to proof of a fact unless admitted by the adverse party, relying also on the following cases: Nathaniel Onwuka Ajero & anor v. Bernard Ugorji & 6 ors (supra) particularly at pages 13A and 19H; Joe Adolo Okotie-Eboh & anor v. Mrs. Alero Jadesimi [2001] 10 NWLR (Pt. 720) 52 particularly at 60A; Iluyomade v. Ogunsakin [2001] 8 NWLR (Pt. 716) 561 particularly at 577 A – B; and Murli Mirchandani & anor v. Babatunde Pinheiro [2001] 3 NWLR (Pt. 701) 561 particularly at 578F. In conclusion, the defendant urged the Court to dismiss this suit for the following reasons – 1. The claimant is not entitled to payment of bonus for the year 2009, having regard to the defendant's Bonus Policy. 2. Even if for the sake of argument (which is not admitted), the claimant is entitled to be paid bonus, he has waived that right having regard to the General Release and Discharge Certificate which he voluntarily executed. A corollary of this is that the claimant cannot make further claims against the defendant after signing the General Release and Discharge Certificate. 3. Even if the claimant is entitled to bonus (which is denied) he has failed to prove that he saved the company procurement costs in the whopping sum of $112 million and that he exceeded his performance target and was, therefore, entitled to 45% of his salary as bonus for the year 2009. The claimant’s reply written address is dated 21st March 2012 but filed on 28th March 2012. To the claimant, from the pleadings filed and the evidence adduced by both parties the following facts are not in dispute – 1. That the claimant was employed for a fixed term contract of two years by the defendant. 2. That the contract of employment of the claimant contained a clause expressly stipulating the payment of annual bonus to the claimant. 3. That the defendant had in place a performance bonus scheme for its employees. 4. That bonus payment was made by the defendant to its staff for the year 2009. 5. That the claimant’s employment was terminated before the expiration of his contract. 6. That the claimant made demands from the defendant for the payment of his bonus for the year 2009 on the grounds that he had met and exceeded targets set for him and staff of his department. 7. That the defendant refused to respond favourably to the claimant’s demands. The claimant continued that the only fact that is in dispute in this case and which calls for a resolution by this Court is whether the claimant was eligible for bonus payment for the year 2009 and had met the criteria for payment of bonus set by the defendant. In this regard, the claimant framed three issues for the determination of the Court, namely – 1. Whether the claimant had earned performance bonus for the 2009 calendar year prior to the determination of his employment in March 2010. 2. Whether the defendant adduced credible evidence in rebuttal of the claimant’s claim. 3. Whether the claimant is entitled to the reliefs sought in this suit. Regarding issue 1 i.e. whether the claimant had earned performance bonus for the 2009 calendar year prior to the termination of his employment in March 2010, the claimant referred to document 2 frontloaded along with the claimant’s originating process, which is the claimant’s letter of employment dated the 13th March 2009. To the claimant, the attachment to document 2 states expressly that the claimant was to commence work with the defendant on the 24th of March 2009; and by clause 12 of the said document 2 (the letter of employment dated 13th March 2009) the defendant stated expressly as follows – Your remuneration and other benefits shall be set out as follows – a. Base Salary $220,000 (Two hundred and twenty thousand United States Dollars) per annum net of all taxes. b. Bonus: Annual bonus will be based on 30% (thirty percent) of the base salary for on target and 45% (forty five percent) for stretch on maximum bonus. The claimant continued that in the course of re-examination, the claimant’s witness stated in his evidence that an employee who exceeded his target was entitled to 45% of his basic salary which is described as “Stretch on Maximum Bonus”. That from the characterization of the defendant’s bonus policy as performance bonus scheme as per Document 3 (Document 3 in the list of documents frontloaded by the claimant is the letter of termination of employment dated 18th March 2009, while the performance bonus policy and scheme is actually Document 5), the right to bonus is not based on the whims of the defendant but rests squarely on the performance of employees. From the internal memorandum addressed to the claimant dated 16/11/09 and titled, ‘Finalisation of Departmental Objectives’, which is attached to Document 3) and the evidence of the claimant's witness elicited under re-examination, it is clear that the entitlement to bonus payment rests on the fulfillment of departmental objectives by staff of the respective departments of the defendant. The claimant then contended that his claim for bonus for the 2009 calendar year is predicated on the fact that he exceeded his departmental targets based on 2 criteria, namely, the user survey report and cost saving in respect of procurement of goods and services. To the claimant, the following pieces of evidence established the fact that the claimant had earned annual bonus for the year 2009. 1. Based on the admission of the defendant’s sole witness under cross-examination that employees of the claimant’s department particularly his direct subordinates, Charles Edeki and Olivia Ikeguonu, were paid performance bonus for 2009. 2. The contents of the letter written to the defendant by the claimant’s solicitors Ajumogobia & Okeke dated 25th May 2010 and frontloaded as document 6. That in the said letter which the defendant’s counsel conveniently chose to overlook in his summation of the facts and evidence in his final written address, the claimant’s solicitors in paragraph (d) thereof under the subheading - Claim For Unpaid Bonus specifically highlighted the claimant’s demand for bonus based on the fact that he exceeded targets set for him. The said letter further captured the defendant’s response to the claimant’s demand for bonus as follows: With respect to your claim that you are entitled to receive a full bonus for the 2009 Calendar year, please be advised that EMTS’ policy on bonus payments amongst other eligibility requirements, requires a member of staff to be on the payroll when the bonus pay-out as approved by the Board of Directors, is paid. As the bonus for 2009 was approved by the Board of Directors after you ceased to be in the employment of EMTS, you do not qualify to receive same. To the claimant, the defendant’s response as captured above did not deny the fact that the claimant had earned the bonus. The defendant’s actual reason for the non-¬payment of bonus was that the claimant had left its employment at the time bonus payout was approved by its Board of Directors thus disqualifying the claimant from receiving the same. Consequently, that the defendant’s contention at trial that the claimant did not meet his targets is nothing but .a convenient afterthought contrived by the defendant to evade its contractual obligation to the claimant. The claimant continued that it is pertinent to state that the claimant’s solicitor's letter to the defendant was never responded to. To underscore the significance of the defendant’s failure to respond or refute the demands conveyed to it by the claimant’s solicitor, the claimant commended to the Court the decision of the Court of Appeal in the case of Zenon Petroleum & Gas Limited v. Idrisiyya Limited [2006] 8 NWLR (Pt. 982) 221 at 247 – 251. That the Court of Appeal followed and applied its previous decision in Sale Gwam v. Emmanuel M. Ebule [1990] 5 NWLR (Pt. 149) 201 at 217 and the Supreme Court decision in Joe Iga & ors v. Chief Ezekiel Amakiri & ors [1976] 11 SC 1 per Obaseki, JSC in re-affirming the principle of law that silence in circumstances in which a reply is obviously expected raises an irrebuttable presumption of admission by conduct or representation (the underlining is the claimant’s). That in the cases cited above, the failure of an adverse party to respond or reply letters written by the opponent or his solicitors demanding payment was deemed to constitute an admission of liability and as lending credence to the opponent’s case. The claimant then urged the Court to resolve this issue in favour of the claimant by finding that the claimant had earned performance bonus for the 2009 calendar year. Regarding issue 2 i.e. whether the defendant adduced credible evidence in rebuttal of the claimant’s claim, the claimant reiterated that the defendant has not denied that the claimant’s department exceeded targets set for them in the year 2009 nor the fact that the claimant as the head of that department earned bonus for that year. That the case set up by the defendant in rebuttal of the claimant’s claim is hinged on four grounds, namely – a) The claimant was not eligible for bonus payment having ceased to be in the employment of the defendant at the time bonus payout was declared and approved by the defendant’s Board of Directors. b) That the defendant had not undergone any personal or departmental appraisal for the year 2009 to warrant his claim for bonus. c) That the defendant did not meet his targets for the year 2009. d) That the defendant had waived his right to further claim or entitlement having executed the defendant’s discharge and release certificate. The claimant then addressed these grounds in the order presented. With respect to the first ground contending that the claimant was not entitled to bonus on grounds of cessation of employment, the claimant submitted that the only documents that the Court can countenance on this issue are the letter of employment of the claimant and the performance bonus scheme frontloaded as Documents 2 and 3 (as indicated earlier, Document 3 is the termination letter, not the performance bonus scheme) by the claimant. To the claimant, none of these documents tie bonus payment to the declaration of its Board of Directors. That the defendant’s submissions in this regard should be discountenanced as it runs foul of the provision of section 128 of the evidence Act 2011 (formerly section 132 of the old Evidence Act). That the purport of section 128 of the Evidence Act is to prevent the admissibility of extraneous evidence where such evidence is given to contradict the contents of a written document. That in the case of Oduwole v. LSDPC [2004] 9 NWLR (Pt. 878) 382 at 383 the Court interpreted that section of the Evidence Act (the former section 132) to mean that no oral or extraneous evidence is admissible to contradict the contents of a documentary evidence. Having urged the Court to discountenance the evidence of the defendant insinuating that bonus payout is dependent on the approval of its Board of Directors, the claimant went on to address the eligibility of the claimant to payment of bonus. Here the claimant submitted that Document 3 contains the eligibility criteria for payment of performance bonus to the defendant’s employees and lists out 10 criteria for eligibility, which cover two categories of employees, viz: permanent employees and employees on fixed term contracts, referring to eligibility criteria Nos. 1 and 10 respectively. That the defendant conveniently chose eligibility criteria No.1 which states that – All permanent employees who are in the employment of the company as at the date of payment of such performance bonus and have worked for a minimum of six consecutive months are eligible to participate in the scheme. That the defendant deliberately overlooked the fact that eligibility criteria No. 10 accommodates other employees such as the claimant who are on fixed term contracts. Eligibility criteria No. 10 provides as follows – Employees on fixed term contracts (who are eligible for bonus payment as per their contracts) will participate in the scheme. However, if the said contract expires during the financial year and is not renewed, the employee will be paid a prorated performance bonus amount in relation to the period worked in that financial year. To the claimant, if a literal interpretation is given to the eligibility criteria as set out above, the Court will find that the claimant is eligible to participate in the defendant’s performance bonus scheme for the following reasons – a) The claimant’s letter of employment stipulated that his contract of employment was for a fixed term of two (2) years. b) The same letter of employment stipulated as part of the claimant’s salary and benefits a contractual right to bonus payout. The claimant then submitted that the clause disqualifying employees who have ceased to be in employment for bonus payout applies to permanent employees only and not employees on fixed term contract such as the claimant. Furthermore, that the proviso to eligibility criteria No. 10 beginning with the word ‘However’ envisages that employees on fixed term contract who are no longer in employment by reason of expiration of their contract are still entitled to bonus payout on a prorated basis for work done in relation to the period worked in that financial year. Notwithstanding that the claimant’s employment was terminated in March 2010, the claimant submitted that he is entitled to bonus in relation to the work done for the 2009 financial or calendar year. That the defendant’s argument that his contract did not expire does not detract from the intendment of eligibility criteria No. 10 which envisages reward to employees who have earned bonus for the period worked before they ceased to be in employment, commending to the Court the case of Ulegede v. The Military Administrator Benue State [2001] 2 NWLR (Pt. 696) 73 at 91 F – S where the court held that – Regardless of whether a plaintiff’s claims for wrongful dismissal, termination or retirement from service is successful or dismissed, his claims, benefits or entitlement which had accrued before his dismissal, termination or retirement are always paid to him. The claimant’s counsel then submitted that the claimant had earned the right to bonus payout for the 2009 calendar year and that his right to payout of that bonus had accrued before his employment was terminated in March 2010. With respect to the second ground of the defence, the claimant submitted that no credible evidence was offered by the defendant to support its contention that the defendant had not undergone any personal or departmental appraisal for 2009 to warrant his claim for bonus. That the evidence adduced by the defendant’s witness, Akindele Abe, who claimed to have been employed in June 2009 in the defendant’s Human Resources Department, was that his schedule of duties between March 2009 to April 2010 included HR policy formulation, review and implementation and that the claimant did not participate in the appraisal exercise for the financial year of 2009. That under cross-examination the following facts were elicited from the defendant’s witness – 1. He did not know the exact time performance appraisal for 2009 was carried out despite being a HR personnel. 2. He admitted that his duty did not include the appraisal of directors of the company of whom the claimant was one. It, therefore, follows that he was not in a position to know if the claimant was appraised or not. 3. He admitted that the claimant’s direct subordinates were paid performance bonus for the year 2009. The claimant then asked: how could they have been paid bonuses if the Department and its head (the claimant being Director of Procurement) were not satisfactorily assessed? 4. When the question was to put to him that performance bonus could not have been paid to staff in the claimant’s department without them meeting the departmental key performance indices he became evasive and turned around to state that payment of bonus was not necessarily based on staff meeting targets but was dependent on the discretion of the defendant. To the claimant, this last piece of evidence elicited under cross-examination amounts to a complete somersault or departure from the case set up by the defendant in its pleadings as to the criteria for bonus payment. That assuming without conceding that the claimant was not appraised, the failure to appraise the claimant lies squarely at the door step of the defendant as it is not for the claimant as employee to appraise himself. The claimant then urged the court not to allow the defendant to profit from its lapse or default otherwise unscrupulous employers wishing to renege from their contractual obligation will simply choose not to carry out appraisals in order to cheat deserving employees of their benefits. Continuing, the claimant contended that the evidence on record from the cross-examination of the claimant’s witness shows that the claimant’s witness, Mr. Charles Edeki, was employed by the Department in July 2009 and resigned his employment on 30th April 2010. That the evidence equally shows that the claimant was employed in March 2009 and his employment was determined in March 2010 about one month before the resignation of Charles Edeki. Consequently, that if Charles Edeki and other key staff of the claimant’s Department were paid bonuses for 2009 having met and exceeded their departmental objectives, no justification exists for withholding bonus payments due to the claimant. That the contention by the defendant that the claimant had ceased to be in its employment at the time bonus was declared and paid out does not carry weight given that Mr. Charles Edeki was paid bonus for 2009 before he resigned from the defendant’s employment on the 30th of April 2010 (barely one month after the claimant’s employment was terminated). With respect to the third ground of the defendant’s defence wherein the defendant contended that the claimant did not meet his targets for the year 2009, the claimant submitted that this contention is self defeating. That if the defendant is honestly contending that the claimant did not undergo any personal or departmental appraisal then on what basis can they claim that he did not meet or exceed his personal and departmental target? The claimant then submitted that it is a contradiction for a party to assert in one breadth that its adversary did not undergo any personal or departmental appraisal and then turn round in another breadth to state that the adversary did not meet or exceed targets. To the claimant, the word ‘appraisal’ is defined in the Collins English Dictionary and Thesaurus at page 53 as “an assessment of the worth or quality of a person or thing. 2. A valuation”. It, therefore, follows that a finding or conclusion that an employee did not meet job targets must necessarily flow from an objective appraisal done at a personal or departmental level. If there was no appraisal of the claimant as the defendant contends then there surely is no basis for the defendant to contend that the claimant did not meet his targets. The fourth and final ground of the defence set up by the defendant is the contention that by reason of the claimant’s execution of the defendant’s discharge and release certificate the claimant had waived his right to bonus. The aforesaid discharge and release certificate was frontloaded by the claimant as Document 4 and is dated 19th March 2010. Notwithstanding the fact that the document speaks for itself, the claimant highlighted the endorsement made on the face of the document which reads as follows – Exceptions: I do not make any commitments that are not already valid from the terms of my contract. I have an unpaid expense claim and a phone allowance not paid. That the defendant’s counsel conveniently chose to ignore the first two lines of the endorsement in his final address and made heavy weather of the latter part to justify their argument on waiver. The claimant then submitted that the defendant’s submissions on this point are totally misconceived and should be discountenanced. That from the express words used, it is obvious that the claimant intended to communicate his exception to the manner the general release and discharge statement was couched by the defendant. The claimant by making those endorsements thus reserved every right available to him under his contract of employment including that of unpaid bonus and did not give up his right to enforce any right accruing to him under his contract of employment. Citing the case of Ulegede v. Military Administrator Benue State (supra) at pages 89 – 90, the claimant contended that the Court of Appeal held that it is only where an acceptance of terminal benefit is made “without protest” by an employee that such acceptance would be deemed to operate as a waiver. The claimant also referred the court to the the decision of the Supreme Court in Military Administrator of Benue State v. Ulegede [2001] 7 NWLR (Pt. 741) 9194 where the Supreme Court affirmed the view of the Court of Appeal that employees who had protested a breach of their contract of employment could not be said to have waived their rights. The claimant continued that on the basis of the foregoing arguments, the totality of the evidence offered by the defendant in rebuttal of the claimant’s case was not sufficient to tilt the scale in favour of the defendant for the following reasons: firstly the contract of employment of the defendant and the defendant’s performance bonus policy show clearly that the claimant is eligible and entitled to bonus payment; secondly bonus payment was made to staff of the claimant’s department for the year 2009 presupposing that they met and exceeded their departmental objectives; and thirdly, the defendant did not displace the irrebuttable presumption inuring in the claimant’s favour to the effect that he earned bonus for 2009, as captured in the claimant’s solicitor’s letter of demand, is a fact which constitutes an admission and lends credence to the claimant’s case. Regarding issue 3 i.e. whether the claimant is entitled to the reliefs sought in this suit, the claimant contended that the reliefs sought for by the claimant herein are twofold: the first consists of bonus in the sum of $99,000 which by simple arithmetical calculation amounts to 45% of the claimant’s annual base salary of $220,000 given that the claimant’s Department exceeded their set objectives, and the second relief consists of interest on the aforesaid sum on the footing that the claimant has been kept out of money he is ordinarily entitled to. With respect to the principal claim for bonus, the claimant submitted that the claimant has satisfactorily established his entitlement to same based on the terms of his employment, the defendant’s performance bonus scheme and the totality of the evidence adduced before this Court. That it is pertinent to emphasize that the claimant’s claim for bonus is confined to the financial or calendar of 2009 during which time he was still in the employment of the defendant. That the law is well settled that a terminated employee would be entitled to be paid what is stipulated in the company’s conditions of service, which is made an integral part of his contract of employment, referring to the decision of the Court of Appeal in Evans Bros (Nig) Publishers Ltd v. Falaiye [2005] 4 NLLR (Pt. 9) 108 at 132 F – G. With respect to the payment of bonus to employees, the claimant commended to the Court the cases of Coker v. C.F.A.O [1967] 3 ALR Comm 289; Powell v. Braun [1954] 1 NLR 401; and Management of Metal Construction (W.A) Limited v. Metal Products Workers Union of Nigeria [1987 – 2006] Digests of the Judgments of National Industrial Court 152. Also referred to the court is the case of Incar Nigeria Ltd v. Erabor [2005] 3 NLLR (Pt. 8) 235 for the principle that an employee will be entitled to recover any benefit that had accrued to him prior to the determination of his contract of employment. With respect to the claim for interest, the claimant submitted that interest is usually awarded to compensate a claimant who has been kept out of funds to which he is ordinarily entitled. That the viva voce evidence of the claimant’s witness in respect of interest was given in conformity to the principle enunciated above. That in the light of the unchallenged evidence on interest, the Court is urged to resolve this issue in favour of the claimant and award both reliefs sought, further commending to the Court the case of R.E.A.N. Ltd v. Aswani Textiles Industry [1991] 2 NWLR (Pt. 176) 639 at 671A. The claimant continued that it is pertinent to dispel the notion of the defendant that a party must testify personally before his evidence can be acted upon by a court of law. That at the inception of this suit, the claimant addressed the Court on the propriety of a claimant suing through an attorney and do not need to belabor the Court with the submissions and cases cited, which already form part of the Court’s records. The claimant then referred the Court to the cases of Shittu v. Fashawe [2005] 14 NWLR (Pt. 946) 671 at 692; Husseini v. Mohammed [2005] 17 NWLR (Pt. 954) 393 at 405; and Dauda v. Iba [2007] 2 NWLR (Pt. 1018) 321 at 333, where the Court held that a party to a suit is not under compulsion or obligation to personally testify for himself or call a particular witness to prove his case, provided a party is able to proffer authentic and relevant evidence, through witnesses which support his case to convince the Court of trial nothing exists which compels the party in person to testify or to call a particular witness. Also that “there is no provision under the law compelling a plaintiff to testify in a claim brought and defendant in a representative capacity”. A trial court which relies on such authentic or relevant evidence cannot be accused of injustice. That in the instant case the claimant’s witness stated that apart from being a donee of a power of attorney from the claimant, he was the claimant’s direct subordinate, which fact was confirmed by the defendant’s witness under cross-examination. That the claimant’s witness resigned his employment a month after the claimant’s employment was terminated and thus is eminently competent to give evidence on behalf of the claimant concerning the facts of this case. The claimant then submitted that the defendant made use of part of the evidence given by the claimant’s witness at the trial and as such cannot after using evidence it considers suitable for its purpose from the witness turn around to allege that the same witness was procured by a claimant who failed to testify personally. In concluding his submissions, the claimant stated for emphasis that the standard of proof in civil proceedings is on the balance of probabilities and then submitted that the claim put forward by the claimant is more probable than that placed on the other side of the proverbial scale by the defendant for the following reasons – 1. There is no denial by the defendant that the claimant was employed for a fixed term and that his contract of employment stipulated the payment of annual bonus as one of his contractual benefits. 2. There is no denial on the part of the defendant from the correspondence exchanged prior to the institution of this suit that the claimant had earned bonus for the year 2009. 3. There is no credible evidence from the defendant that the payment of bonus to its employees was dependent on the approval or discretion of its Board of Directors. 4. There is abundant evidence to show that staff of the claimant’s Department particularly his direct subordinates were paid annual bonus for 2009. 5. An irrebutable presumption of law inures in favour of the claimant by reason of the defendant’s silence or failure to refute the claims of the claimant conveyed vide the solicitor’s letter (Document 6) to the defendant. 6. The claimant expressly reserved his rights to enforce all benefits accruing to him under his letter of employment at the time of executing the defendant’s discharge and release certificate and as such did no waive his right to the entitlement of bonus or any further claim due to him. 7. The defendant’s failure to appraise the claimant, if true, lies squarely at the doorstep of the defendant and cannot be used as an excuse to evade their obligation particularly when other employees of the same Department were paid bonus for the same period the claimant worked as their Director. The claimant then urged the Court to enter judgment accordingly in line with the jurisdiction of the Court to adopt international best practices in dispensing justice. The defendant reacted to the issues raised in the claimant’s written address by filing a reply on points of law dated 5th April 2012 but filed on 10th April 2012. To the defendant, the claimant made reference to a letter purportedly written by his solicitors to the defendant dated 25th May 2010, which the claimant contended amounted to an admission by the defendant that the claimant had earned bonus for the year 2009. That the claimant went further to submit that the defendant’s alleged failure to respond to the letter or refute the demands therein contained constituted an admission that the claimant qualified for bonus for the year 2009. In response, the defendant submitted that first, the issue of whether or not the claimant’s solicitors wrote to the defendant a letter dated 25th May 2010 and that the defendant failed to respond to the letter was never pleaded by the claimant and so the parties did not join issue on that point. The argument of the claimant’s counsel alleging that the defendant did not respond to the letter must, therefore, be discountenanced. The law is settled that argument of counsel, no matter how brilliantly canvassed, cannot take the place of evidence and that address of counsel must be based on evidence on record. We refer to and rely on the following cases: Osuigwe v. Nwihim [1995] NWLR (Pt. 386) 752 and ANPP v. Usman [2008] 12 NWLR (Pt. 1100) 1 at 91. To the defendant, since the allegation that the defendant did not respond to the claimant’s solicitors letter dated 25th May 2010 was not made in the statement of facts filed by the claimant, raising the issue now amounts to ambushing the defendant who will not be able to join issues on that allegation and to prove that as a matter of fact, the defendant by its letter dated 28th June 2010 responded to the said letter. A copy of the letter dated 28th June 2010 was then annexed to the reply on points of law. Secondly, that the purported admission is contained in the claimant’s solicitor’s letter and not in a document which emanated from the defendant. It is absurd, to say the least, for the claimant to contend that an admission which is attributed to the defendant and on which the Court is being asked to draw a conclusion of liability against the defendant is contained not in a document issued by the defendant but by the adverse party itself. What is more, the document wherein the defendant allegedly made the statement is not before the Court. The defendant contended, therefore, that for the Court to come to the conclusion that the defendant has admitted any of the facts in issue in this matter, the admission must be contained either in the defendant’s pleadings or a document issued by it, which must be before the Court. Thirdly, the defendant submitted that the purported response by the defendant which was quoted in the claimant’s solicitor’s letter dated 25th May 2010 and quoted in the claimant’s written address does not by any stretch of reasonable imagination amount to admission of anything, much less the fact that the claimant had earned bonus for the year 2009. That the defendant was quoted in the claimant’s solicitor’s letter of 25th May 2010 as having stated as follows – With respect to your claim that you are entitled to receive a full bonus for the 2009 calendar year, please be advised that EMTS’ policy in bonus payments amongst other eligibility requirements, requires a member of staff to be on the pay roll when the bonus pay-out as approved by the Board of Directors, is paid. As the bonus for 2009 was approved by the Board of Directors after you ceased to be in the employment of EMTS, you do not qualify to receive same. The defendant then submitted that the above statement does not in any way amount to admission of the fact that the claimant had earned bonus for the year 2009. It is settled law that for admission to be effective, it must be specific, categorical, and unambiguous, referring to the cases of N.S.N. Ltd v. Guthrie [1993] 3 NWLR (Pt. 284) 643 and Abdulkarim v. Incar Ltd [1984] 10 SC 1. Fourthly, the defendant contended that having known of and even quoted the defendant’s rebuttal of the claimant’s claim for bonus, it is misleading and misconceived for the claimant to turn around argue that the defendant did not respond to the solicitor’s letter and must, therefore, be deemed to have admitted the demands therein contained. The defendant then submitted that the case of Zenon Petroleum & Gas Limited v. Idrisiyya Limited [2006] 8 NWLR (Pt. 982) 221 at 247 – 251 and the other cases cited by the claimant on the circumstances when the court will draw inference of admission from failure to respond to business correspondence, do not apply to the facts of this matter because from the portion of the claimant’s letter quoted above, it is clear that the claimant’s solicitors were in that letter responding to the defendant’s earlier response on the claimant’s claim for bonus and denied same. The defendant continued that in the claimant’s written address, it was submitted that the claimant’s entitlement to bonus was also proved by the admission of the defendant’s witness under cross-examination that employees in the claimant’s department, particularly Charles Edeki and Olivia Ikeguonu, were paid performance bonuses for the year 2009. To the defendant, the piece of evidence regarding the payment of bonus to Olivia Ikeguonu and Charles Edeki, being evidence on a fact not pleaded by the claimant goes to no issue, is inadmissible and should be discountenanced by this Court. That the law is settled that once facts are not pleaded and issues joined on them, no evidence can be led, including under cross-examination, on those non- pleaded facts. Even when such evidence is admitted, the law requires that it be disregarded, relying on the case of Lamurde Local Government v. Engr. Eugene Karka & anor [2010] 10 NWLR (Pt. 1203) at 590 particularly at 591 C – G. That in the case of Chief M. F. Oladipo & 4 ors v. Moba Local Government Authority & 4 ors [2010] 5 NWLR (Pt. 1186) 117 particularly at 162 – ¬163 F – A and 180 E – H, it was held that – The fact that a piece of evidence was elicited under cross-examination without objection makes no difference to the status of such evidence. Evidence elicited during cross-examination is inadmissible in as much as it is unsupported by the pleadings of either party. That is to say, evidence elicited from witness during cross-examination but which was not pleaded (and so upon which no issue is joined and canvassed), goes to no issue. It is against this background that the inflexible rule that parties are bound by their pleadings becomes even more cogent. The defendant went on to state that a corollary of its submission on this point is that parties are bound by their pleadings and are not allowed to set up a different case from that contained in their pleadings. That the case of the claimant was not that it was entitled to bonus because other persons in his department were paid bonuses during the 2009 financial year, rather the case of the claimant is that he is entitled to be paid performance bonus because he exceeded his performance target and also saved the company the sum of $112,000,000 (one hundred and twelve million United States dollars) and was, therefore, entitled to an amount equal to 45% of his basic salary as his bonus. That having failed to lead evidence to prove those allegations, the claimant’s claim for bonus must woefully fail. That in the case of Chief M. F. Oladipo & 4 ors v. Moba Local Government Authority & 4 ors (supra) at page 162 A – C, it was held that – Parties are bound by their pleadings. Pleadings define and delineate the contours of the dispute between the parties. Therefore oral and documentary evidence must be consistent with pleadings, whether it is the statement of defence. This is because the case of the parties is erected by the pleadings, and parties do not have the freedom to roam around outside of the pleadings in search of a better case. Thus, evidence which is at variance with the pleadings goes to no issue and should be discountenanced. The case of Okoko v. Dakolo [2006] 14 NWLR (Pt.1000) 410 was also cited by the defendant. The defendant continued that in the claimant’s written address, the case of Ulegede v. Military Administrator, Benue State [2001] 2 NWLR (Pt. 696) 73 at 91 F – S (Court of Appeal) as well as that of Military Administrator, Benue State v. Ulegede [2001] 7 NWLR (Pt. 741) (Supreme Court) were cited and relied on in support of the argument that an employee who has accepted his terminal benefits cannot be said to have waived his right to challenge the termination if he protested the termination. The defendant then contended that the cases of Ulegede v. MILAD Benue State and MILAD Benue State v. Ulegede (all supra) do not apply to this case with regard to the waiver comprised in the Release and Discharge Certificate which the claimant signed because those cases dealt with the issue of whether an employee whose employment was unlawfully terminated had waived his right to challenge the termination because he had accepted his terminal benefits. That the claimant is not challenging the termination of his employment but is claiming for payment of bonus after he had signed a General Release and Discharge Certificate. On the other hand, that the case of the defendant is that the claimant, even if he was entitled to payment of bonus (which is not admitted), had waived any such right because he willingly executed the General Release and Discharged Certificate and waived any further claims against the defendant. What is more, that the cases of Ulegede did not decide that a party who has signed a discharge and released certificate and, therefore, effectively waiving whatever he would otherwise claim for can turn round and act contrary to his express waiver. Even at that, the defendant continued that from a thorough review of the authorities, one would see that in all the cases where it was held that acceptance of terminal benefits did not amount to waiver of right to challenge termination, those were cases where the employment was statutorily protected and the courts found that the termination was null and void having not complied with the statutory provisions, referring to Ulegede v. MILAD, Benue State (supra); MILAD Benue State v. Ulegede (supra); Adeniyi v. Yabe College of Technology [1993] 6 NWLR (Pt. 300) 426; [1993] 7 SCN 304; and NITEL v. Ikaro [1994] NWLR (Pt. 320) at 350. The defendant contended further that in the claimant’s written address, it was suggested that this Court could award pre-judgment interest even when it was not previously agreed by the parties. The defendant then submitted that the claimant’s argument on this point is misconceived and lacks legal basis. That the law is settled that Nigerian Courts lack the jurisdiction to award pre-judgment interest, unless previously agreed by the parties, referring to the case of Afri Bank (Nig.) Plc v. Mr. Chima Akwara [2006] 5 NWLR (Pt. 974) 619 particularly at 644 A – C and 656 C – E. Also referred to the Court were the cases of Himma Merchants Ltd v. Aliyu [1994] 5 NWLR (Pt. 622) 259; Ogbu v. Ani [1994] 7 NWLR (Pt. 355) 128; and Nigeria Dynmaic Ltd v. Ibrahim [2002] 8 NWLR (Pt. 768) 63. In conclusion, the defendant urged the Court to discountenance the arguments canvassed in the claimant’s written address and to dismiss the suit with substantial costs. In considering the processes and submissions of the parties in this matter, it may be useful to right away clarify one or two issues that arose. In paragraph 1.3 of the defendant’s written address, the defendant stated that “the claimant did not personally testify in the matter, rather he procured one Mr. Charles Edeki Esq. to testify for him”. The use of language here is detesting. The verb ‘procure’, when used in relation to a human being, conjures up an imagery of panderism. In this sense, it means to induce with or for money, to pander, to pimp. See The Chambers Dictionary. To, therefore, say that the claimant procured Mr. Edeki (who by the way has a valid power of attorney recognized by this Court) to give evidence is not only uncultured of counsel to the defendant but smacks of disrespect to the recognition that this Court gave to the power of attorney donated by the claimant to Mr. Edeki. In any event, there is no known rule that insists on a claimant testifying in person in any matter before the Court. Counsel should, therefore, be very minded of the language used in court. In the second place, in the same paragraph 1.3 of the defendant’s written address, the defendant referred to 5 documents frontloaded by the claimant but left out the claimant’s solicitor’s letter to the defendant dated 25th May 2012. In paragraph 2 of the defendant’s reply on points of law, the defendant made an issue out of the arguments of the claimant regarding his solicitor’s letter to the defendant. To the defendant, the claimant did not plead the fact of ‘whether or not the claimant’s solicitor wrote to defendant a letter dated 25th May 2010 and that the defendant failed to respond to the letter’; arguing in the process that the defendant was thereby ambushed by the claimant. For this argument, and to show that the defendant actually reacted to the said letter, the defendant then attached a document (the reply letter) to its reply on points of law. The claim of ambush is most unfortunate. In paragraph 17 of the statement of facts, the claimant pleaded as follows – The claimant shall rely on all relevant documents at the trial of this suit including the power of attorney donated in favour of Charles Edeki, letter of employment, letter of termination of employment, statement of release and discharge, defendant’s bonus scheme, e-mail correspondence and letters exchanged between the parties and the claimant’s solicitor’s letter to the defendant. The said solicitor’s letter was then frontloaded as Document 6 and sent alongside other originating processes to the defendant. For the defendant to now argue that the said letter was not pleaded is most unfortunate. At the start of the trial of this matter, the defendant’s counsel told the Court that they will not be bringing in any document but will rely only on the frontloaded documents of the claimant. To think that it can cook up an issue and use that as the basis to bring in a document at the point that it was replying on points of law smacks of unprofessional practice on the part of counsel to the defendant. We detest this in very strong terms. If there is a party that is seeking to ambush the other, it is the defendant, not the claimant. The document of the defendant attached without leave of the Court to the reply on points of law will be, therefore, discountenanced for the purposes of this judgment. All of this aside, Document 6 (the letter of the claimant’s solicitor to the defendant dated 25th May 2010) cannot be used to prove the statements contained therein. We agree with the defendant that its weight and probative value as proof of its content is suspect. At best, the said letter only proves that the claimant demanded for his entitlement from the defendant. It cannot be used as proof of the entitlement of the claimant to the amount claimed as accrued performance bonus earned by the claimant. Regarding the entitlement of the claimant to the sum of Ninety-Nine Thousand United States Dollars claimed, document 6 goes to no issue and so is discountenanced for that purpose. This Court made it clear to the parties that the practice in the Court is that all frontloaded documents are deemed admitted unless specifically objected to, in which event the Court will then make a ruling on the admissibility or otherwise of the documents. Once deemed admitted, all that is left is the weight or probative value that will be placed on them by the Court. All of this is made possible given that this court is generally enjoined to be flexible and less formal; and while it is enjoined to apply the rules of evidence, it may depart from it in the interest of justice. In this regard, this Court, for instance, admits secondary evidence of documents, not necessarily the primary evidence where there is no dispute regarding the authenticity. See sections 36 and 37 of the Trade Disputes Act 2004 and section 12 of the National Industrial Court Act 2006. The position adopted by this Court is succinctly captured by the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, to the effect that – The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. The defendant also argued that “the piece of evidence regarding the payment of bonus to Olivia Ikeguonu and Charles Edeki, being evidence on a fact not pleaded by the claimant goes to no issue, is inadmissible and should be discountenanced by this Court”. But in paragraph 13 of the statement of facts, the claimant had pleaded thus – The claimant avers that employees eligible for bonus payment are entitled to payment of bonus that had accrued to their favour prior to the determination of their contract of employment. With this pleading, and coupled with the fact that under section 254C of the 1999 Constitution, as amended, this court has jurisdiction over unfair labour practice, we hereby hold that the evidence complained of by the defendant in this regard was validly given upon pleaded facts and is, therefore, relevant to the determination of the merit of the claimant’s claims. We now turn to the merits of the case. The claim of the claimant is for the payment of the sum of Ninety-Nine Thousand United States Dollars being the accrued performance bonus earned by the claimant prior to the termination of his employment and interest on the said amount at the rate of 15 per annum from 1st December 2009 until the judgment debt is fully paid. The letter of offer of employment dated March 13, 2009 stipulates in paragraph 2 that the claimant’s employment shall be valid for a two year period. In other words, his employment is for a fixed term. In paragraph 12, the said letter of employment further provides as follows – Your Remuneration and other Benefits shall be as set out below – a. Base salary: $220,000 (Two Hundred and Twenty Thousand USD) per annum net of all taxes. b. Bonus: Annual bonus will be based on 30% (Thirty percent) of the base salary for On Target and 45% (Forty-Five percent) for stretch on maximum bonus. The Performance Bonus Scheme (Document 5 frontloaded by the claimant) then goes on to provide under the subhead titled, ‘Eligibility’, the following criterion of eligibility at page 2 – Employees on fixed term contracts (who are eligible for bonus payouts as per their contracts) will participate in the scheme. However, if the said contract expires during the financial year and is not renewed, the employee will be paid a pro-rated performance amount in relation to the period worked in that financial year. From these provisions reproduced and the processes filed generally, it will be found that there is no question as to the status of the claimant. There is no doubt that he was an employee of the defendant, which employment was terminated by the defendant vide Document 3, the letter of termination dated March 18, 2010, the date the termination was said to take effect from. The terms of the employment were clearly spelt out in the documents frontloaded. There was also no doubt that the claimant’s employment contract entitled him to annual bonus at 30% of base salary for On Target or 45% for stretch on maximum bonus, as the case may be. The question that, however, arises and which is the first issue framed by the defendant is whether having regard to the defendant’s performance bonus policy, the claimant can be said to be entitled to performance bonus for the year 2009, his contract having been terminated on March 18, 2010 before the bonus was declared and paid and having not participated in the performance appraisal for the year 2009. The argument of the defendant here is that because the claimant’s employment contract was terminated, it cannot be said to have expired during a financial year so as to bring into effect the eligibility criterion stipulated at page two of the Performance Bonus Scheme. Counsel to the defendant took the Court through the Black’s Law Dictionary definition of the word, ‘expiration’. But the question that needs to be asked and which is pertinent is whether it was the claimant who terminated his own contract or it was the defendant. In other words, is the fact of the non-expiration of the employment contract of the claimant attributable to him or to the defendant? Can a party who caused a state of affairs that denies another of his right be allowed to benefit there from? It must be noted that the claimant worked through the financial year 2009. So how can that financial year be tied to 2010 in terms of entitlements? The eligibility criterion for fixed term contracts is in two parts. The first part is categorical that fixed term contract employees (who are eligible for bonus payments as per their contracts) are entitled to participate in the scheme. The claimant’s contract of employment states that he is entitled. It is the second part of the eligibility criterion that then states that if the contract of employment expires during the financial year and is not renewed, the employee will be paid a pro-rated performance bonus amount in relation to the period worked in that financial year. In making specific provision for contracts that expire during a financial year, can it be said that thereby contracts terminated by the employer itself are specifically excluded? We do not think so despite the otherwise argument of counsel to the defendant. As indicated earlier, it is the defendant that terminated the contract of employment of the claimant, not the claimant. To now argue that thereby the claimant is not entitled to what his contract of employment stated as his entitlement would be unjust as the defendant has effectively benefited from its own acts against a hapless employee. For this reason, we hold that the claimant is entitled to the bonus for the year 2009. As we indicated earlier, ours is to adjudicate disputes between employers and their workmen; and in the course of such adjudication we must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing we are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that our jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair. This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. See the decision of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal (supra). The argument of the defendant is that the claimant is not entitled to be paid bonus because he was no longer in the employment of the defendant when the bonus was declared and paid and did not participate in the performance appraisal exercise which was a condition precedent to the payment of bonus and which according to the evidence of Mr. Akindele Abe, the defendant’s witness, was only carried out after the claimant’s employment was terminated. The defendant’s witness had specifically testified that he knows why the claimant was not paid performance bonus. To the witness, the claimant was not so paid because he was not in the employment of the defendant when the performance bonus was declared and paid, which is one of the eligibility criteria for payment. Secondly, that the claimant did not participate in the performance appraisal exercise for the relevant financial year i.e. 2009. Thirdly, that the claimant’s contract was terminated as opposed to expiration of the contract. In fact the evidence of the defendant’s witness that performance bonus is discretionary on the part of the employer company is not supported by the letter of employment of the claimant which makes the payment of bonus a right. All of this suggests that the claimant’s employment was deliberately terminated (note that no reason was adduced in Document 3 for the termination) before the performance appraisal exercise was carried out so as to disentitle the claimant from claiming for the said bonus; and we so hold. To then turn around and urge the Court to discountenance moral questions as the defendant argued, smacks of insensitivity to the plight of hapless employees on the part of the defendant. It is most unconscionable. This then leads to the second issue framed by the defendant i.e. whether the claimant did not waive his right to the bonus when he voluntarily signed the release and discharge certificate (Document 4 frontloaded by the claimant). Nothing shows the claimant to be hapless in relation to the defendant than the wordings of the release and discharge certificate, which for effect is here again reproduced – I forever waive, absolve, indemnify and hold the company, its directors, managers, servants, employees and agents harmless from and against any and all claims, proceedings, costs, liabilities and expenses of whatever nature, which may be suffered or incurred by, or made against the company as a result of acts performed by me in the course of my employment and hereby declare, voluntarily and in good faith, that the company does not owe me any further compensations. A global reading of this quotation connotes two things: the claimant waives all his rights as may be available to him against the defendant; but at the same time he must indemnify the defendant for all losses whatsoever caused to the defendant for acts performed in the course of employment. This means that the claimant is perpetually damnified by the defendant. Yet the defendant’s argument here is that by clear and unambiguous terms, the claimant waived his right to the bonus. But is this even the case? A look at Document 4 actually reveals that the claimant signed it under or with protest. While signing the said release and discharge certificate, the claimant specifically and in his handwriting endorsed an exception in the following words – Exceptions: I do not make any commitments that are not already valid from the terms of my contract. I have an unpaid expense claim and a phone allowance not paid. Having to endorse this exception on the release and discharge certificate means that there is no talk of the claimant waiving his right to the bonus “by clear and unambiguous terms”. The claimant signed the release and discharge certificate under protest. It must be noted that the termination of the claimant’s employment and the drafting of the release and discharge certificate were all at the behest of the defendant. This means that the claimant was presented with these two documents as a fait accompli. The balance of bargaining power in the relationship between an employer and an employee tilts in favour of the employer, which is what was exhibited in the instant case. The defendant did not sit with the claimant to draft the release and discharge certificate. So the only way the claimant could indicate his reservation to the contents of the document was to sign under protest in the manner that he did. This is the only course open to him. On this issue, therefore, we hereby hold that the claimant did not waive his right to bonus as the defendant would want the Court to believe. Having to sign the release and discharge certificate in the manner that he did, the claimant thereby signed under protest indicating he had reservation as to the contents of the said release and discharge certificate. The third issue framed by the defendant is whether the claimant has provided any evidence of having saved the defendant the sum of One Hundred and twelve Million United States Dollars in procurement costs, including evidence of exceeding his performance target as a basis for the amount claimed. The claimant’s argument here is that the claimant earned the annual bonus for the year 2009 based on the following pieces of evidence – 1. Based on the admission of the defendant’s sole witness under cross-examination that employees of the claimant’s department particularly his direct subordinates, Charles Edeki and Olivia Ikeguonu, were paid performance bonus for 2009. 2. The contents of the letter written to the defendant by the claimant’s solicitors Ajumogobia & Okeke dated 25th May 2010 and frontloaded as document 6. We indicated earlier that the letter written by the claimant’s solicitor to the defendant cannot be used as evidence of the fact that the claimant earned the bonus. For that reason, therefore, we discountenance the argument of the claimant in that regard. This leaves out only the argument regarding the testimony of the defendant’s witness. The defendant’s witness had testified that the claimant is in court to claim his entitlement as to performance bonus which other employees were paid after his employment was terminated (the emphasis is the Court’s). The defendant’s witness then acknowledged knowing Mr. Charles Edeki (who was the Senior Manager, Technical Procurement and Marketing), and Miss Olivia Ikeguonu (who was the senior Manager, General Procurement and Marketing). He further acknowledged that these two individuals were direct subordinates of the claimant. The defendant’s witness went on to acknowledge that he was aware that these two individuals were paid performance bonuses for 2009. To the defendant’s witness, it is not necessarily that these two were paid performance bonuses because the Department met the performance indices (both emphases are the Court’s). The witness continued that performance bonuses are discretionary on the part of the company. The witness went on, however, that he does not know the exact time that performance appraisal for 2009 was carried out. As for Miss Olivia Ikeguonu and Mr. Charles Edeki, that their performance appraisal could not have taken more than one week. What we can draw from this testimony is that – 1. Employees including Mr. Charles Edeki and Miss Olivia Ikeguonu were paid performance bonuses. 2. The performance bonuses paid to the staff was not because the department met the performance indices of the defendant. 3. The performance bonus is discretionary on the part of the employer company. We agree with the defendant that there is no evidence that the claimant saved the defendant the sum of One Hundred and twelve Million United States Dollars in procurement costs. The internal memorandum from the CEO to the claimant dated 16/11/09 and titled, ‘Finalisation of Departmental Objectives’ starts with the words – I want to make sure that we have documented your departmental objectives. As I understand they are as follows…. The internal memorandum then goes on to make provision in two columns for proposed KPI and comments. Under KPI provision is made for customer satisfaction survey, savings based on negotiation and process time from final requisition to PO. For savings based on negotiation, the internal memorandum states thus: ‘Kurt please let me know if you have been tracking this and can we use it or do we need to replace it with a different measure’. As for process time from final to requisition to PO, the internal memorandum states thus: ‘You have proposed this but not a methodology and how you would score minimum, on-target and stretch. Please clarify whether this is still a valid objective, what the objectives are and how you are measuring it’. All of this means that the issues stipulated in the internal memorandum are not conclusive but are being worked out. So when paragraph 12 of the claimant’s letter of employment provides that the claimant’s remuneration and other benefits shall be a) base salary: $220,000 (Two Hundred and Twenty Thousand USD) per annum net of all taxes, and b) bonus: annual bonus will be based on 30% (Thirty percent) of the base salary for On Target and 45% (Forty-Five percent) for stretch on maximum bonus, it will be noticed that the payment of the bonus depends on whether the target is met (in which case the bonus will be 30% of the base salary) or if the target is exceeded then the bonus will be 45% for stretch on maximum. The claimant’s argument here is that since the claimant’s direct subordinates were paid performance bonus for the year 2009, the claimant must necessarily be paid since the subordinates could not have been paid bonuses unless the Department and its Head (the claimant, who was Director of Procurement) were satisfactorily assessed. By this argument, the claimant is urging this Court to draw an inference in his favour. We earlier found that from the evidence of the defendant’s witness, the performance bonuses paid to the staff was not because the department met the performance indices of the defendant. This means that the employees who were paid bonuses at least met whatever criteria the defendant set; and since according to the defendant’s witness the performance bonus is discretionary on the part of the employer company, it follows that on grounds of the need for an employer to treat employees equally in a workplace, the claimant deserves to be paid bonus for the year 2009. After all, he was not found wanting in his duty for the said year. The claimant’s bonus claim is for 45% of his base salary of $220,000 which amounts to $99,000. This means that what the claimant is praying for is the higher of the two bases provided as per clause 12(b) in the letter of employment. By our finding, however, especially in terms of the evidence of the defendant’s witness that the performance bonuses paid to the staff was not because the department met the performance indices of the defendant, the claimant cannot claim 45% of his base salary. At best he is entitled to only 30% of the base salary ($220,000) which is $66,000; and we so hold. The claimant also claimed for interest at the rate of 15% per annum from 1st December 2009 until the judgment debt is fully liquidated. By Order 21 Rule 4 of the National Industrial Court Rules 2007, this Court at the time of delivering a judgment or making an order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment. This means that, as argued by the defendant, the claimant cannot ask for pre-judgment interest. The Court can only award interest on judgment as from the date of judgment. For all the reasons adduced and for the avoidance of doubt, we hold and order as follows – 1. The claimant is entitled to the payment of annual performance bonus for the year 2009. 2. The claimant did not waive his right regarding the payment of the said performance bonus for the year 2009. 3. The entitlement of the claimant to performance bonus for the year 2009 is at 30% of the his base salary ($220,000) which comes to Sixty-Six Thousand United States Dollars ($66,000) only. 4. The said Sixty-Six Thousand United States Dollars ($66,000) shall be paid by the defendant to the claimant within 30 days of this judgment. Failing this, the said $66,000 shall thereafter attract interest at 15% per annum up to such time as it is fully paid. Judgment is entered accordingly. …………………………… Hon. Justice B. B. Kanyip Presiding Judge ……………………………………… …...……………………………… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge