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The Complaint by which this action was commenced is dated the 2nd of November, 2011 and filed the same date. It was accompanied with the Statement of Facts dated and filed the same date. It was also accompanied with the Claimant’s List of Witness and Documents. On the 30th of November, 2011 the Defendant filed its Memorandum of Appearance of the same date and this was followed by the Defendant’s Statement of Defence and Counter-Claim dated the 20th of December, 2011 and filed the same date. Alongside this were the Defendant’s List of Witnesses and Documents dated the same 20th December, 2011 and filed the same date. The Claimant’s Reply to Statement of Defence and Defence to Counter-Claim dated the 29th of December, 2011 was filed the same day. And this was accompanied with the Claimant’s/Defendant Counter-Claimant’s Additional List of Documents. On the 17th January, 2012 the Defendant/Applicant filed a Motion on Notice dated the 22nd December, 2011 asking for extension of time within which to file its Statement of Defence, Counter-Claim and other frontloaded processes required in the suit and a deeming order. This Motion was supported by an Affidavit of 9 paragraphs filed on that same 17th January, 2012. Subsequent to the above, the Claimant’s Witness Statement on Oath dated 2nd March, 2012 was filed the same day while the Statement on Oath of Mr. Nnamdi Owo dated the 14th of March, 2012 and filed the same date is for the Defendant’s Witness. The reliefs claimed by the Claimant as contained in the Claimant’s Statement of Fact are as set out below: i. “The sum of N25, 699,257.79 (Twenty Five Million, Six hundred and Ninety Nine Thousand, Two Hundred and Fifty Seven Naira, Seventy Nine Kobo being the Defendant’s outstanding indebtedness as at 16th October, 2008, in respect of her entitlements after working for the Defendant’s Bank for more than sixteen {16} years, together with interest at the rate of 20% (Twenty percent) per annum, until Judgment is delivered (sic). ii. Post Judgment interest on the above sum at the rate of 15% (Fifteen percent) per annum, until the final liquidation of the Judgment debt (sic). iii. The cost of instituting this action in the sum of N 1million {Invoice and receipt to be founded upon at the trial of this action} (sic)” Mean while, the matter first came up in this Court on the 8th of December, 2011 at Lagos. The parties were absent while the Claimant Counsel was present and no Counsel appeared for the Defendant. The case was therefore adjourned to the 25th of January, 2012 for hearing with an order that Hearing Notice be issued and served on the Defendant. On the said 25th of January, 2012 the matter came up as adjourned. On this fateful day Counsel to the two sides were present in Court. On this same day, the Counsel to the Defendant/Applicant moved the Motion dated the 22nd of December, 2011 and filed on the 17th January, 2012 asking for extension of time and a deeming order to accommodate the Defendant’s Statement of Defence, Counter-Claim and other processes already filed (but filed out of time) in reply to the Claimant’s originating processes. The Counsel to the Claimant having not opposed the application, the application was granted and the two-pronged prayers of extension of time and deeming order were accordingly granted to accommodate the processes filed out of time by the Defendant/Applicant. Thereafter, parties to the suit agreed to file Witness Statement on Oath. Consequently, the Court ordered the Claimant to file and serve her Witness Statement on Oath on or before the 14th March, 2012 while the Defendant was to file its Statement on Oath 7 days from the date it is served with the Claimant’s Statement on Oath. The matter came up next on the 22nd of March, 2012. On this fateful day, the trial was opened with the Claimant calling CW: Mrs. Caroline Dennis Durugbor, the Claimant. She was sworn on the holy Bible. She said she made a deposition before this Hon. Court. The deposition was shown to her and she recognized it as the one she made. In the deposition titled “Claimant’s Witness Statement on Oath” the Claimant averred that she was a Deputy Manager in Zenith Bank Plc until the 16th of October, 2007 and voluntarily retired from the said Bank. She also averred that she started work in the Bank on the 9th January, 1991. She went further to aver that her appointment was confirmed on the 8th July, 1991 by a letter dated the 7th of August, 1991. She also averred that she was promoted to the Executive Assistant I position on the 1st of April, 1992 vide a letter dated 13th April, 1992. The Claimant equally averred that following her unparalleled outstanding performance she was presented with a letter of commendation dated the 4th of June, 1999 and titled “Star Performer” and that subsequent to this, she was presented with another award titled the “Most Deserved Award” in year 2000. The Claimant averred that she got married to Mr. Dennis Durugbor in February, 2002 and that she notified the Human Resources Department thereof on the 26th March, 2002 via an “Internal Office Memo”. She further averred that she worked conscientiously and without blemish with the Defendant for 16 years. She stated that in confirmation of her meritorious service she was presented with the highest award in the Bank titled “Can’t Touch This” via a letter dated 4th December, 2006. The Claimant averred that on the 5th of October, 2007, while still in the service of the Defendant, the Defendant caused an internal memo to be issued to all staff on Deputy Manager Level of which she was one informing them of the “Compensation Review”. She went further to state that, earlier on, vide a letter dated the 17th of September, 2007; she elected to voluntarily retire from the service of the Defendant with effect from the 16th of October, 2007. She went further to aver that the Defendant neglected or refused to reply her letter of voluntary retirement until three months after several pleas with a letter titled “Re: Resignation of Appointment” and dated the 17th of January, 2008. She averred that she was not satisfied with this reply which made her to write another letter dated the 1st of February, 2008 pleading with the Defendant to revisit her retirement benefits and pay all her entitlements. She averred further that instead of the Defendant stating and giving her all her entitlements (severance gift) and other benefits opened to retirees of the Defendant, it refused to give her the benefits as stated in section 17:7 to 17:10 of the Defendant’s Employee Handbook. The Claimant went on to aver that she has not been given any money or lump sum whatsoever since her disengagement. And the Claimant went on to itemize in specificity all her entitlements. She continued by averring that the Defendant in total disregard to its Employee Handbook has for more than three months refused, neglected and failed to pay all her entitlements. The Claimant averred that she is aware that other members of staff of the Defendant who did not attain the age of 60 before retiring were all paid their full benefits while she is being denied. She mentioned the names of the aforementioned staff as – Mrs. Bose Osofisan, Henry Owuzurigbo, Charles Mekwunye, Mrs. Ngozi Agapu, Mr. Chuks Odo and Tina Vukor-Quarshe. And she put the Defendant on notice to produce the above-mentioned persons’ Staff data forms indicating their age at disengagement, Resignation letters, and the Bank’s response thereto and all other relevant documents relating to their disengagement from the Bank. She stated that despite the fact that the Defendant refused to avail her of these documents she was able to lay her hands on a copy of the Bank’s Acceptance Letters of the Resignation of Mrs. Ngozi Agapu and Mr. Chuks Odo. She averred the duo were respectively paid up to N 9 million as her six months’ severance gift and N 8.3 representing his full and final entitlements from the Bank in spite of the fact that they did not attain the age of 60 before resignation. She averred that all the above-mentioned staff of the Bank retired or resigned from the Bank after the pension reform regime which commenced since 2004 and yet they were paid their respective entitlements by the Bank. The Claimant averred that she instructed her Counsel to issue a demand notice on the Defendant thereof and that the Defendant replied the “Demand Notice” dated the 18th August, 2011 which the Defendant replied vide letter dated the 25th of August, 2011 claiming that all the Claimant’s pension contributions had been remitted to her pension account while ignoring the issue of her entitlements as contained in the Employee Handbook which is a binding contract between them. She averred that a final demand notice dated the 20th of September, 2011 was issued again by her Counsel and that notwithstanding this, the Defendant has refused and or neglected to pay her the entitlements to which she is entitled as depicted above. The Claimant finally urged the Court to grant her prayers as contained in the Statement of Fact. The following documents were tendered without opposition and they were accordingly admitted as exhibits:- 1. A copy of the Defendant’s letter of Confirmation of Appointment dated the 7th of August, 1991 admitted as Exhibit ‘A’, 2. A copy of the Defendant’s Letter of Promotion dated the 13th of April, 1992 admitted as Exhibit ‘B’, 3. A copy of the Defendant’s Letter of Commendation dated the 4th of June, 1999 admitted as Exhibit ‘C’, 4. The Defendant’s Award on Plague to the Claimant for long Service in year 2000 admitted as Exhibit ‘D - DI’, 5. A copy of the Internal Memo of the Defendant dated the 26th of March, 2002 admitted as Exhibit ‘E’, 6. A Copy of the Defendant’s Award Letter and Plague admitted as Exhibits ‘F – FI’, 7. A copy of the Defendant’s Internal Memo informing the Defendant’s staff of compensation review dated the 5th of October, 2007 admitted as Exhibit ‘G’, 8. A copy of the Claimant’s Letter headed ‘Voluntary Retirement’ dated the 17th of September, 2007 admitted as Exhibit ‘H’, At this stage, the matter was adjourned by the Court to the following day, the 23rd of March, 2012 for further hearing. Accordingly, on this 23rd of March, 2012 the Claimant continued with the tendering of documents after being reminded of her oath:- 9. Documents listed in the Schedule of Documents filed by the Claimant in this Court admitted as Exhibits ‘I, J, K, L, M, N, and O’ respectively, and 10. A copy of the Claimant’s Electronic Mail dated 1st February, 2008 admitted as Exhibit ‘P’. The matter came up again on the 12th June, 2012 for Cross Examination. After the Claimant was reminded of her oath, she replied the Counsel to the Defendant that she was 22 years when she joined the Defendant’s Bank on the 9th January, 1991. She also said the Defendant gave her a letter of appointment when she resumed work. She said her letter of appointment got lost after she had left the Bank and was in the process of relocating to the United Kingdom. She said she resigned from the service of the Defendant on the 16th of October, 2007 and that as at the 15th of October, 2007 she was still resuming duty with the Defendant Bank. She asserted that Exhibit “H’, her letter of retirement was dated the 17th of September, 2007 and despite Exhibit “H” she was still coming to work until the 15th of October, 2007. The Claimant said as at the time she resigned from the Defendant Bank she was 38 years old and that she resigned on health ground. She said that the Defendant was aware that she retired from its service when her health was failing. She claimed that when she was with the Defendant she was going to the hospital to collect drugs for high blood pressure and that was how the Defendant got to be aware of her ill health. The Claimant said that she could not remember her last basic salary when she was with the Bank but that it was one of the documents already tendered. She however said that her basic salary was not up to N8, 000,000 per annum. She said she took some loans from the Defendant as a staff before her retirement and that her total indebtedness to the Defendant prior to retirement was about N1.4million or thereabout. She admitted that she has not settled her indebtedness to the Defendant because the Defendant has not settled her benefits and entitlements. She said she got a letter from the Defendant computing her entitlements and benefits but that the computation was not correct. She admitted that Exhibit “I” was the letter she received from the Defendant and that in it the Defendant stated that she owed it N1, 141,614 which it demanded for from her. She said she responded to Exhibit “I” through an E-mail she sent to the Human Resources and that the E-mail is before the Court as Exhibit “P”. The Claimant admitted she knew the company called Trust Fund Pension PLC as her pension account. She admitted that the Defendant remitted her pension to the Trust Fund Pension Plc. But she however added that her claim against the Defendant is for N25.7 million and that out of the amount, N25 million is a claim for severance gift. She later retorted that what she is claiming is now N25 million as her gratuity and entitlements and not as severance gift and that the basis of her claim is the Employee Handbook section 17: 10(b) and also as per section 22:2 of the Handbook. The Claimant admitted that N4 million was paid into her Pension Account. The Cross-Examination came to an end and there was no Re-Examination. The case for the Claimant was closed while the matter was adjourned to 24th of July, 2012 for the Defence. On the said 24th of July, 2012 when the matter came up as adjourned the Defendant’s Counsel called his only witness, one Nnamdi Owo as DW1. DW1 was sworn on the Holy Bible and he said he could remember that he swore to a Witness Statement on Oath and he tendered same without opposition and same was marked as Exhibit DW1. DW1 thereafter adopted Exhibit DW1 as his Evidence-in-Chief. The matter thereof proceeded to Cross-Examination. DW1 stated that he had been working with Zenith Bank PLC for 11 and half years. He went on to say as a Deputy Manager with the Bank he had a unit in the Financial Control and Strategic Department which is called Compensation, Benefits and Tax Unit. He said his duties includes handling of pay rolls, staff pension scheme, leave allowance for staff and Computation of End of Service Accounts or Statements for Ex-Staff of the Bank. In addition, he added that he supervised the computation of all entitlements of staff and indebtedness; and that this is calculated by his subordinates and he supervised. He stated that there is a difference between benefits and pensions. He added that entitlements comprise all the monetized outstanding leave days and leave allowances. It also includes any salary that is due to a staff. He admitted that an employee of the Defendant may retire before the age of 60 years. He added that he was not aware that there was any letter restraining the Claimant from retiring or requiring the Management’s permission to proceed on voluntary retirement. DW1 said he agreed that the Claimant’s entitlements, that is 100% of benefit in clause 17:10(b) of Exhibit “J” is not stated in Exhibit “I”. The Cross-Examination came into an end and the case of the Defence was closed without re-examination. The case was accordingly adjourned to 29th October, 2012 for adoption of Written Addresses. The Defendant was directed to file and serve its Written Address within 21 days starting from the 25th of July, 2012. The Claimant was also directed to file and serve her reply address within 21 days of the service of the Defendant’s Address on her while the Defendant was to file and serve a reply on points of law, if any. The case did not come up on the 29th October, 2012 as scheduled but however came up on the 1st of November, 2012. On this fateful day while the parties were absent, their respective Counsel were present in Court. The Counsel to the Defendant, Mr. Wahab Dako adopted the Defendant’s Written Address dated the 27th of August 2012 and filed same date. The Defendant’s Counsel also adopted his written Reply on Points of Law dated the 2nd of October, 2012 and filed same date. The Defendant’s counsel finally prayed the court to dismiss the case of the Claimant and enter judgment for the Defendant in respect of the Counter-Claim. On this same date, Mr. A. Adedoyin-Adeniyi, Counsel to the Claimant adopted the Claimant’s final written Address dated and filed the 19th of September, 2012 and prayed the Court to enter judgment for the Claimant as depicted in the Writ. The Counsel equally urged the Court to dismiss the Counter-Claim of the Defendant. The case was thereafter adjourned to the 15th of January, 2013 for judgment. I shall now proceed to summarize the arguments of the respective Counsel as contained in their Written Addresses mentioned above. And I shall take that of the Defendant’s Counsel first. The Defendant’s Counsel submitted the following issues for the determination of the case: 1. “Whether considering the facts of this case and the evidence adduced by parties, the Claimant successfully established a case of indebtedness against the Defendant to entitle the Claimant to judgment as claimed. 2. Whether the Defendant’s Counter-Claim has merit and should succeed, especially in view of admission of liability made by the claimant”. In arguing Issue 1, Counsel to the Defendant argued that by virtue of the provisions of sections 131, 132, 133 and 134 of the Evidence Act, 2011 the burden of proving the existence of any fact in issue lies with the persons who asserts it, which he said in this case lies with the Claimant. He added that the Defendant only has a duty to adduce evidence in rebuttal when and only when the Claimant has discharged her burden. And on this proposition of law Counsel relied on section 133(2) of the Evidence Act and the cases of TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158 AT 203 – 204 and ELEME V. AKENSUA (2000) 13 NWLR (PT 683) 92 AT 104 PARAS. C – D. Counsel argued further that there was no binding contract between the parties to this suit in relation to the claims of the Claimant as contained in the general form of Complaint and the statement of facts and for this proposition of law reliance was placed on BALOGUN V. U.B.A. (1992) NWLR (PT. 247) AND BILANTE INT’L LTD. V. N.D.I.C. (2011) 15 NWLR (PT. 1270) 407. He continued this argument by saying that the Claimant has the duty to establish that she is entitled beyond what is computed in the Defendant’s letter dated the 17th of January, 2007 (Exhibit “I”) and paragraph 15 of the Defendant’s Statement of Defence which she has failed to discharge. The Defendant’s Counsel argued further that the Court should presume that Claimant deliberately withheld her letter of appointment in order to prevent the Court from seeing the terms of employment contained therein which are unfavourable to the case being presently pursued by the claimant and he relied on section 167 (d) of the Evidence Act, 2011 and the case of F.M.F. LTD. V. EKPO (2004) 2 NWLR (PT. 856) 100 AT 128 – 129 PARAS H - D. and KATTO V. C.B.N (1999) 6 NWLR (PT. 607) 390 AT 405 PARAS. D – F. Counsel argued that the effect of failure on the part of the Claimant to establish the terms and conditions of her service is fatal to her case as these are the only things that could be examined to determine whether the Defendant is indebted to the Claimant as claimed. He argued that the Claimant did not indicate her last annual salary which will be the basis of calculating her entitlements and that as such it is impossible to know the basis of the N25, 699,257.79 being claimed as entitlements by the Claimant. Counsel further submitted that since the terms of contract between the parties were reduced into writing as contained in the letter of appointment no oral evidence or any form of evidence is by law adduceable to prove the contents of this letter and section 128(1) of the Evidence Act, 2011 was called in aid to buttress this line of reasoning. Further reliance was also placed on OLANLEGE V. AFRO CONT. (NIG.) LTD (1996) 7 NWLR (PT. 458) 29 AT 40 PARAS. B – C AND KOIKI V. MAGNUSSON (1999) 8 NWLR (PT. 615) 492 AT 514 PARAS. E – F. Counsel equally argued that in view of the fact that the Claimant failed to tender her letter of appointment which contains the terms of contract between the parties, the reliance placed on the contents of the unsigned and undated Handbook (Exhibit “J”) cannot hold water. He submitted that it is the letter of appointment that can only give the Claimant a cause of action. Counsel then cited CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 512 AT 567 to buttress his point. And Counsel went further to argue that since the unsigned and undated Handbook was not shown to have been directly incorporated into the letter of appointment which contains the contract between the parties, it cannot amount to collective agreement that would be binding on the parties and neither can it be binding simplicity; and for these propositions of law Counsel placed reliance on TSOKWA OIL MARKETING CO. V. B.O.N. LTD (2002) 11 NWLR (PT. 777) 163 AT 221 – 222 PARAS. H – A AND ABALOGUN V. S.P.D.C. LTD (2003) 13 NWLR (PT. 837) 308 AT 337. Counsel also submitted that a collective agreement must be signed by the parties to it to be binding between them and reliance is placed on Nigerian Employment Law and Practice by Choima Kanu Agomo at p. 296 and NATIONAL UNION OF HOTELS AND PERSONAL SERVICE WORKERS V. PALISO NIGERIA LTD & ANOR (1976 – 2006) DJNIC 547. However, Counsel conceded that the said Handbook is a “guiding manual for the Defendant”. Defendant’s Counsel in addition argued that even if it is accepted that the contents of the Handbook constitute binding contract between the parties, Article 17:7 relied on by the Claimant would not avail her in that the Claimant is not a retiree as envisaged by Article 17:6 which provides that a person can only retire from the Bank’s service at the 60th birthday or at an earlier age on account of ill health or at age 45 with the permission of the Bank; none of the conditions which the Claimant who voluntarily retired at the age of 38 into self employment met. Counsel also argued that Article 17:10 relied on by the Claimant would not also avail him in view of the supervening effect of sections 1(1) – (2) and 11(1) & (5) of the Pension Reform Act, 2004 which the Counsel submitted came into force in 2004. That this proposition of law is correct, Counsel relied on Nigerian Employment and Labour Relations Law and Practice supra p. 183. Counsel crowned his submission on this account by arguing that since the Claimant accepted that she had been paid her entitlements as per Articles 17:7 and 17:10 of the Handbook she had no further claims against the Defendant; and that to hold otherwise is to impose a double jeopardy on the Defendants while giving the Claimant double benefits. Counsel to the Defendant submitted also that the Claimant cannot and is not entitled to N25 million out of the N25, 699, 257.79 being claimed as the N25 million is a “severance gift” which is a gratuitous gift which the Defendant is not compellable to pay. This view the Counsel submitted is supported by ORJI V. D.T.M. (NIG.) LTD (2009) 18 NWLR (PT. 1173) 467 AT 500 PARA. A. Counsel also argued that this view has been supported by the Claimant’s Counsel in his letter of demand (Exhibit L) dated 18th August, 2011 which posits that “…entitlements are not paid to an employee gratuitously or as a windfall, rather entitlements are paid in accordance to the laws/contract guiding the relationship between employer and its employees…”. Counsel to the Defendant equally argued that the Claimant cannot rely on Exhibit “G”, the Internal Memo dated October 5, 2007 because as at September 2007, the Claimant had tendered her letter of resignation “because the compensation contained in the Defendant’s Internal Memo dated October 5, 2007 (Exhibit G) was an annual payment commencing on October 1 2007 in which case the first year would have ended on September 30, 2008 at which time the Claimant would have long left the services of the Defendant”. Counsel submitted that in view of this it would be unjustifiable for a court to order that Claimant be paid allowances and bonuses such as Christmas bonus, leave allowance, dressing allowance, lunch subsidy and so on for a year the Claimant did not work with the Defendant. The Defendant’s Counsel also argued that assuming that the Claimant can rely on Exhibit “G”, this would still not avail her as her claim is for severance gift which is different from the annual compensation offered to the Defendant’s employees in the Internal Memo at stake and that since the Claimant did not specifically claim this, the Court not being a father Christmas cannot grant this. For this argument Counsel placed reliance on ONU V. AGU (1996) 5 NWLR (PT. 451) 652. Counsel finally submitted, that based on the submissions reviewed above, Issue No. 1 should be decided in favour of the Defendant and against the Claimant. We now come to a review of the arguments canvassed in respect of Issue No. 2 of the two issues distilled by the Counsel to the Defendant for the determination of this case. Issue No. 2 as reproduced earlier on, deals with the Counter-Claim filed by the Defendant. The Defendant’s Counsel submitted that the Claimant is indebted to the Defendant to the tune of N1, 141, 617.74 which was arrived at when the sum of N749, 257.79 being the entitlement due to the Claimant was deducted from her original total indebtedness of N1,890,875.53 and that the Claimant admitted this indebtedness at paragraphs 2, 3, and 6 of her Defence to Counter-Claim and paragraph 19 of the Claimant’s Statement of Fact where the Defence to Counter-Claim computed her indebtedness to the Defendant to amount to N1,890,875.53. Counsel submitted that drawing inference from the above; the Claimant did not contradict the case of the Defendant in the Counter-Claim and that what is admitted needs no further proof. The Court is therefore referred to sections 20 & 123 of the Evidence Act, 2011 and ADEYE V. ADESANYA (2001) 6 NWLR (PT. 708) 1 and ANASONS FARMS LTD. V. NAL MERCHANT BANK LTD. (1994) 3 NWLR (PT. 331) 241to buttress this line of reasoning. Counsel further argued that the loan in issue was granted as a result of and in the course of the Claimant’s employment with the Defendant and that as such the loan issue is incidental to and connected with the Claimant’s employment with the Defendant and that as such the Court by virtue of section 254C (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) has the jurisdiction to entertain and grant the prayer of the Defendant. Counsel argued further that the Claimant conceded the fact in paragraph 3 of her Defence to Counter-Claim wherein she confirmed that the loan in issue was actually obtained as a staff loan made available to her by the Defendant in the course of her employment. It was finally submitted that based on the arguments canvassed above, the Defendant has proved its Counter-Claim and as such Issue No. 2 should be decided in favour of the Defendant by entering judgment for the Defendant and against the Claimant, with substantial cost awarded in favour of the Defendant against the Claimant. Having summarized the arguments of the Defendant’s Counsel above, it is now time to delve into the arguments of the Claimant’s Counsel as contained in his Written Address dated the 19th of September, 2012 and filed same date. In this Written Address, the Claimant’s Counsel formulated 2 Issues for the determination of the case thus: 1. “Whether the claimant has proved the liability of the defendant to pay her entitlements, having being lawfully employed by the defendant and guaranteed under the Defendant’s employment handbook (sic) 2. Whether the claimant is entitled to all her claims as endorsed on the complaint, being her entitlements as guaranteed in the Defendant’s employee Handbook{Exhibit J}:-the standard contractual agreement between the claimant and the Defendant (sic)”. In reply to the Defendant’s argument that failure of the Claimant to tender her letter of employment is fatal to her case, the Claimant’s Counsel submitted that this argument is misconceived in law because it was never disputed that the Defendant’s Handbook contains the conditions of service for the Defendant’s employee and neither was it also contended that the Claimant served the Defendant for 16 years. It was submitted that to show unequivocally that the Claimant is an employee of the Defendant the Claimant tendered her letter of Confirmation of Appointment alongside the Defendant’s Employee Handbook. It was therefore submitted that facts admitted needs no further prove and in this respect section 123 of the Evidence Act, 2011 and UNITY LIFE & FIRE INSURANCE CO. LTD. V. I.B.W.A. (2001) 7 NWLR (PT. 713) 629 – 630 PARA. B – G; were called in aid. The Claimant’s Counsel submitted in addition, that the Claimant testified under Cross-Examination that her Letter of Appointment got lost during the process of relocating from Nigeria to the United Kingdom. It was also submitted that in addition to the above, the Defendant has conceded the fact that the Claimant was not paid her entitlement benefits except for remittance of pensions into her pensions account, that entitlement is totally different from pensions, that the employee handbook of the Defendant guarantee the Claimant 100% of her contributions from the day she joined the Defendant, that other staff have in the past been paid the entitlements benefits, and that the validity of her confirmation letter was not questioned. For this submission reliance was placed on NWANBUOKU V. OTTIH (1961) 2 SCNLR 232, IFEAJUNA V. IFEAJUNA (1997) 7 NWLR (PT. 513) 405, EGBUNA V. EGBUNA (1989) 2 NWLR (PT. 106) 106 AT 773. It was further contended that it is trite that the conditions of service are contained in the employee Handbook and that this is the only agreement binding the employer and the employee together. It was submitted that this position has been confirmed in NIGERIA UNION OF CONSTRUCTION AND CIVIL ENGINEERING WORKERS V. CONSTRUCTION AND CIVIL ENGINEERING EMPLOYERS’ ASSOCIATION OF NIGERIA (1982) 105 DJNIC. It was also submitted that the authority (F.M.F. LTD V. EKPO (2004) 2 NWLR (PT. 856) 100 AT 128 129) cited by the Defendant’s Counsel in paragraph 6.7 of the Defendant’s Written Address rather than supporting their case strengthens the case of the Claimant. On the question whether the Defendant is bound by its own Handbook, Counsel argued that the Defendant’s Handbook constitutes a collective agreement between the parties and as such it is the only thing the Court is enjoined to consider in determining this case contrary to the argument of the Counsel on the other side contained in paragraph 6.10 of Defendant’s Written Address. He cited the case of OLARENWAJU V. AFRIBANK NIG. PLC (2001) 13 NWLR (PT. 731) PARA. 11 AND AGBAREH V. MIMRA (2008) 2 NWLR (PT. 1071) 378 AT 412 – 413 PARAS F – G HOLDING 3. Counsel argued that contrary to the submission of the Defendant’s Counsel in paragraph 6.14 of their Written Address that by virtue of Article 1.4 of the Employee Handbook no right is conferred on the Claimant, that this argument amounts to blowing hot and cold at the same time since other Articles of the Handbook conferred rights on the Claimant and that the law is that you “cannot give and take” at the same time, once you give you cannot take. The case of UDE V. NWARA (1993) 2 NWLR (PT. 238) 638 AT 662 – 663 is relied upon. Counsel also argued that contrary to the argument of the Counsel on the other side that collective agreements need no special format to be binding on the employer and employee. Counsel referred the Court on this issue to the case of MANAGEMENT OF METAL CONSTRUCTION (W.A.) LTD V. METAL PRODUCTS WORKERS’ UNION OF NIGERIA (1984) P. 152 D.J.N.I.C. It was further contended that every collective agreement is presumed binding until this is rebutted and that until this is done it remains binding on the parties. Reliance is placed on NATIONAL UNION OF HOTEL WORKERS AND PERSONAL SERVICES WORKERS V. NATIONAL UNION OF PETROLEUM AND NATURAL GAS WORKERS & ORS (1995) P. 360 D.J.N.I.C. Counsel contended further that DW1 conceded during cross-examination that the computation as contained in Exhibit J (the Employee Handbook) of the Defendant was not paid to the Claimant and this admission confirms the authenticity of Exhibit J. It was further argued that Exhibit I which is the reply to the Claimant’s letter of retirement (Exhibit H) equally revealed that the Defendant did not pay the Claimant her entitlement but merely calculated the unutilized leave days of the Claimant; and that the Defendant offered no explanation for this. Counsel therefore submitted that arising from the fact that the Defendant did not offer any explanation as to why it did not pay the Claimant’s entitlements; the Court must per force discountenance their defence in this regard. Replying on the effect of the Pension Reform Act on the claims of the Claimant, Counsel submitted that contrary to the contention of the Counsel to the Defendant that articles 17:7 and 17:10 of Exhibit J have been nullified by the Pension Reform Act that the Claimants demands have nothing to do with the issue of pension but rather with the issue of the Claimant’s entitlements. It was submitted that contrary to the assertion of the Counsel to the Defendant in paragraph 6:17 of Defendant’s Written Address that the Claimant did not retire that Exhibit H titled “Voluntary Retirement” coupled with the repeated assertion under cross-examination by the Claimant that she actually retired showed unmistakably that the Claimant actually retired. It was also submitted that under cross-examination the Defendant’s Counsel conceded the fact that pension is different from entitlement and that a close look at the claims of the Claimant would reveal that the Claimant’s claim is not for pension but rather for entitlements. To wrap up this line of reasoning, it was further submitted that the Pension Reform Act, 2004 did not in any way make reference to entitlements of employees but is exclusively meant for pension contributions on retirements. Counsel argued that this proposition is supported by Clause 17:10 of Exhibit J (the Employee Handbook) and that issue of pension is a matter of law while that of entitlement is a matter of collective agreements between the parties. On the issue of whether the Claimant can compel the Defendant to pay her entitlements (severance gifts) Counsel submitted that contrary to the argument of the Defendant’s Counsel as contained in paragraph 6:17 of the Defendant’s Written Address, that the Defendant is compellable in that the severance gift is not tied to the age of service of the Claimant as the Defendant’s Counsel argued but rather to the length of service of the Claimant. In this regard the case of SHOP AND DISTRIBUTIVE TRADE SENIOR STAFF ASSOCIATION V. MANAGEMENT OF ATLAS (NIG.) LTD (1987) 213 DJNIC was cited to buttress the contention. The Claimant’s Counsel argued that contrary to the contention of the Defendant’s Counsel in paragraph 6:27 of their Written Address that the Claimant cannot rely on Exhibit G (the Internal Memo dated 5th October, 2007) that the said Memo is the only proof before the Court of the Claimant’s salary as at the time of her retirement being that the effective date on the retirement letter is the 16th October, 2012 and that a perusal of the Internal Memo in issue would reveal that it takes effect before the 16th of October, 2012. Counsel therefore submitted that the Claimant is entitled to take benefit of the rights contained in the said Internal Memo. Counsel relied on the Nigerian Employment and Labour Relations law and Practice by Professor Chioma Kanu Agomo p. 294 to buttress this argument. Counsel submitted that the Claimant testified under cross-examination that she arrived at N 25 million being claimed by placing reliance on her entitlements as represented under clause 17:10 of Exhibit J. Counsel submitted that the 100% mentioned under clause 17:10 is basically 100% of the annual pay on retirement and that this is expressly stated in Exhibit G. Counsel further submitted that the Claimant is also entitled to 3 months salary for putting in more than 15 years which is a multiple of 5 years by virtue of Clause 22:2 of the Handbook, which mandates the Bank to pay 1 month salary as gift to a staff for each 5 years such staff puts in. It was argued further that the Claimant tendered Exhibits C – F which are letters of commendation from the Defendant in support of this Claim. Counsel cited NATIONAL UNION OF CHEMICAL & NON-METALLIC PRODUCTS WORKERS V. DELTA GLASS COMPANY LTD. (1988) supra to support his submission in this regard. Lastly on Issue No. 1 formulated by the Claimant’s Counsel, it was submitted that the Claimant has incurred huge cost in securing the services of her Counsel to prosecute this case. This is in addition to the earlier contention that the Court should take cognizance of the fact that the Claimant used to come from the United Kingdom to prosecute this case and that Court has taken judicial notice of this. The Court is therefore urged to grant all the entitlements of the Claimant and dismiss the arguments of the Defendant and resolve Issue No. 1 in favour of the Claimant. We now come to Issue No. 2 as formulated by the Claimant’s Counsel and reproduced earlier on. In arguing Issue No. 2, Counsel to the Claimant argued that since the Handbook (Exhibit J) constitutes the collective agreement between the parties, they are bound by it and cannot resile from the terms contained therein. In support of this contention Counsel cited AGBAREH V. MIMRA (2008) 2 NWLR (PT. 1071) 378 AT 412 – 413 PARAS F – G HOLDING 3 AND KAYDEE VENTURES LTD V. MINISTER, FEDERAL CAPITAL TERRITORY (2010) 7 NWLR (PT. 1192) 171 AT 224. Counsel submitted further that the important question begging for answer is what is meant by collective agreement? And that this has been answered in the case of NATIONAL UNION OF HOTELS AND PERSONAL SERVICES WORKERS V. PEOPLES CLUB OF NIGERIA (2001) P. 411 D.J.N.C where the Court made reference to section 47(1) of the Trade Disputes Act in defining collective agreement. It was argued further that this authority made it abundantly clear that there is no legal format required for a document to be regarded as a collective agreement. Counsel also cited MANAGEMENT OF METAL CONSTRUCTION (W.A.) LTD. V. METAL PRODUCTS WORKERS’ UNION OF NIGERIA (1984) P.152 DJNIC where it was held that “no legal format is required before a document can be recognized as a collective agreement”. It was contended that a collective agreement relied upon by both parties cannot be resiled from and that in this particular instance this fact is made stronger because of the fact that the Defendant in this case has at all times relied upon the Handbook such that paragraphs 17 – 20 of the Statement of Defence of the Defendant and the Counter-Claim relied on it in addition to the fact that it was pleaded in the List of Documents of the Defendant. It argued that as such a party cannot approbate and reprobate at the same time and the case of UDE V. NWARA (1993) 2 NWLR (PT. 238) P. 638 AT 662 – 663 was cited in support of this proposition of law. Counsel argued further that there is a presumption of legality in favour of collective agreement which presumption has not been refuted by the Defendant in this case. And Counsel argued also that since it was never contended or contradicted at trial that the Claimant was an employee of the Defendant and a party to the collective agreement that it follows that the Claimant has met the conditions precedent to the enforcement collective agreements as spelt out in JOHN OVOH V. NIGERIAN DREDGING AND MARINE LTD. (2005) P. 516 DJNIC. Additional authorities cited in this regard are: FOOD, BEVERAGE AND TOBACCO STAFF ASSOCIATION V. ASSOCIATION OF FOOD, BEVERAGE AND TOBACCO EMPLOYED & 1 OR. (2004) P. 492 D.J.N.I.C, NATIONAL UNION OF FURNITURE, FUXTURES AND WOOD WORKERS V. MANAGEMENT OF GENERAL ENTERPRISE LTD, KANO (1986) NICLR 207, AND BABA V. V.C.A.T.C (1991) 5 NWLR (PT. 192) 388. It was further submitted that the attempt to deny the Claimant her entitlements which had been paid to other staff in similar circumstances as the Claimant amounts to unfair labour practice which this Court has frowned at in FOOD, BEVERAGE AND TOBACCO SENIOR STAFF ASSOCIATION V. PREMIER BREWERIES LTD, ONITSHA (1989) P. 269 DJNIC. It was contended that to show that the Handbook is the contract between the parties that this Court held in MANAGEMENT OF BRIGHTSTAR INDUSTRIES LTD. V. PRECISION, ELECTRICAL AND RELATED EQUIPMENT WORKERS UNION (19920 P. 335 D.J.N.I.C that the terms and conditions of employment set out in a company’s handbook forms the basis of contract of employment between the company and its employees. It was further argued that gratuity and severance pays are based, as in this case, on the length of service of the employee instead of the age of service. It was submitted that this view has received the support of the law in the cases of SHOP AND DISTRIBUTIVE TRADE SENIOR STAFF ASSOCIATION V. MANAGEMENT OF ATLAS (NIG.) LTD. (1987) P. 213 DJNIC AND NATIONAL UNION OF CHEMICAL AND NON-METALLIC PRODUCTS WORKERS V. LEVER BROTHERS (NIG.) LTD. (1981) P. 89 D.J.N.I.C. Counsel also argued that it is immaterial that the Claimant did not tender her letter of appointment, and that what is material and not contested in this case is that the Claimant worked for the Defendant and that the Claimant’s letter of confirmation is the document that confers permanent position on the employee and that this has been tendered in this case. He cited the cases of UNION OF SHIPPING CLEARING AND FORWARDING AGENCIES WORKERS OF NIGERIA V. MANAGEMENT OF TRANSLATIC LIMITED (1988) P. 232 D. Counsel argued in respect of Issue No. 2 of the Defendant’s Written Address dealing with the Counter-Claim that the unpaid staff loan granted the Claimant can be deducted from the Claimant’s entitlements in line with the long standing convention of the Defendant. The Claimant’s Counsel finally submitted that the issues formulated should be resolved in favour of the Claimant and against the Defendant while substantial cost should be awarded against the Defendant in favour of the Claimant. In reply to the new legal issues raised in the Claimant’s Written Address, the Defendant’s Counsel filed a Reply which is dated the 2nd of October, 2012 on the same date. Let me state at this point that my summary of the Reply on Points of Law shall be limited strictly to what I consider to be reply on points of law. Any aspect of the Reply that seeks to reargue an issue already argued by the Defendant’s Counsel in their Written Address shall be discountenanced. It was submitted in the Reply that the Claimant’s Written Address is an appeal to sentiments and that a Court of law is precluded from acting on sentiments; and on this Counsel cited EFFOM V. IRONBAR (2000) 11 NWLR (PT. 678) 344 AT 358 PARAS. B – C. AND OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1993) 1 NWLR (PT. 270) 262 AT 474 PARA. H; to buttress his submission. It was equally argued that none of the authorities the Claimant’s counsel cited is relevant to the issues arising in this case because in the first instance, these authorities interpreted binding collective agreements whereas in the instant case, the Handbook relied on as collective agreement by the Claimant’s Counsel is undated and unsigned and was expressly made not binding on the Defendant by Article 1.4 of the Handbook except where incorporated into the letter of appointment which is not the case here. In the second instance, it was also submitted that the decisions of the Court in the cases cited were arrived at on the bases of some expressed provisions of contracts between the employers and the employees which is not the case here. Counsel further argued that the arguments of the Claimant’s Counsel contained in paragraphs 10.2 – 10.3 of their Written Address are irrelevant, because as can be discovered from the pleadings of the Claimant, the basis of the Claimant’s case is Article 17.10 and not Article 22.2 of the Defendant’s Handbook which is being relied on now. And it was further submitted that even the said Article 22.2 could not avail the Claimant as it deals with Service Awards which are instantly given when awarded and not terminal benefits which only accrue on disengagement. Counsel went further to argue that the amounts accruable to awardees are stated in the said Article 22.2 and that there is no where that the amount being claimed by the Claimant was stated in the Handbook. Counsel replied on the point of law raised by the Claimant’s Counsel that the Handbook (Exhibit J) constituted collective agreement between the parties to this suit that this is far from the truth as made bare by section 91(1) of the Labour Act, CAP. L1, Laws of the Federation of Nigeria, 2004 which defines “collective agreement” to mean a written agreement between an organization of workers or their representatives and an organization of employers or their representatives, which the Handbook is not. It was submitted that Exhibit J, the Handbook was merely an internal Handbook guiding the conduct of the Defendant’s employees alone and not an agreement entered into between trade unions and their employers association. The Court was therefore urged not to rely on its earlier authorities cited by the Claimant’s Counsel because the facts of those cases are distinguishable from the present case. Counsel replied further on the legal issue of whether Exhibit J is a collective agreement that whether or not Exhibit J is a collective agreement is irrelevant in that collective agreements are not capable of giving individual employees a right to litigate over an alleged breach of their terms. Counsel cited the case of U.B.N. LTD. V. EDET (1993) 4 NWLR (PT. 287) 299 AT 298 PARAS. B –C; A.C.B. PLC V. NWODIKA (1996) 4 NWLR (PT. 443) 470 AT 483 – 484; ANAJA V. U.B.A. PLC (2011) 15 NWLR (PT. 1270) 377; and UNITY BANK PLC V. OWIE (2011) 5 NWLR (PT. 1240) 273. The Defendant’s Counsel finally reiterated his prayer that the Court should dismiss the case of the Claimant and grant the Defendant’s Counter-Claim. Having carefully summarized the evidence on both sides, the arguments of the opposing Counsel, and having carefully reviewed all the authorities cited, read through all the relevant processes, and digested the contentions of parties and these processes, the next step to take is know who is entitled judgment in this case? To answer this question, I rely on the two Issues formulated by the Defendant’s Counsel which I believe accurately captures the contentions in this case, to wit: 1. “Whether considering the facts of this case and the evidence adduced by parties, the Claimant successfully established a case of indebtedness against the Defendant to entitle the Claimant to judgment as claimed. 2. Whether the Defendant’s Counter-Claim has merit and should succeed, especially in view of admission of liability made by the claimant”. In considering Issue No. 1 two questions arise for consideration; and they are: 1. Whether the terms contained in Exhibit J (the Defendant’s Employee Handbook) are binding between the Defendant and its employees?; and 2. Whether the Claimant proves her case as required by law? Counsel to the Defendant has argued that it is only the Letter of Appointment of the Claimant herein that contains the terms of contract between the Claimant and the Defendant and that failure to tender this is fatal to the case whereas, the Claimant is of the view that Exhibit J contains the terms of contract between herself and the Defendant. The first issue to resolve here is an examination of the effect of the absence of the said letter of appointment in relation to the reliance placed by the Claimant on Exhibit J to anchor her case. One thing remains incontrovertible in investigating this question and this is the fact that the evidence that the letter of appointment got lost has not been contradicted by the Defendant in this case. In addition, there is no denial of the facts that the Claimant was an employee of the defendant who served the Defendant for more than 16 years. Then the question is, is it only a letter of appointment that can contain all the terms and conditions in a contract of employment? The answer can be gathered in part from Exhibit J. Article 1.3 of Exhibit J provides thus: This handbook is prepared to give every employee the basic information about the Bank and the general conditions of service. You are therefore advised to read the handbook carefully. (Underlining mine for emphasis) Article 1.4 provides thus: The general conditions of service herein contained do not confer any rights beyond those specifically provided in individual letters of appointment but they are on all questions of discipline binding on all staff except in so far as these conditions are either expressly or implicitly excluded or modified by individual letter of appointment. Article 1.5 further provides that: The policies in this manual are currently in effect and can be amended from time to time at management’s discretion. Additions, deletions or modifications of policy, when approved, will generally be communicated to all affected employees. A community construction of the above-quoted provisions of the handbook show an unmistakable fashion that with regard to the employment in issue here, all the terms of contract or the conditions of service are not contained in the letter of appointment. In fact, it shows that the general conditions of service are all contained in the said handbook and not the individual’s letter of appointment. This view is more so by virtue of Article 1.3 which in part says that the handbook gives “… the general conditions of service …” in the Bank. It is for this reason that every employee is beseeched to read the contents very carefully since by virtue of Article 1.5 “The policies in this manual are currently in effect…”. That the handbook contains the conditions of service of the Defendant’s Employees is further reinforced by the standard form acknowledgement of receipt of the Handbook contained at the back of the Handbook which the employee is expected to sign and the original kept in the employee personal file. It goes thus: I…………………………………………of…………………………………hereby acknowledge receipt of a copy of the staff manual of Zenith International Bank limited. I fully understand that this Handbook sets out company’s rules and regulations and Conditions of Employment for its staff. By the last sentence of the acknowledgement, it is beyond disputation that the Handbook contains the conditions of employment of the defendant’s staff. Arising from the above exposition, and in addition to the fact that I take judicial notice of the fact that letters of appointment generally in this nation are very short, often one or two-page documents which by their nature do not and cannot contain all the conditions of service, I hold that the Handbook in issue contains the terms and conditions of service of the Defendant. The correctness of this view is confirmed in SPECOMILLS TEXTILES, IKEJA V. NATIONAL UNION OF TEXTILES, GARMENT AND TAILORING WORKERS OF NIGERIA (DIGEST OF JUDGMENTS OF THE NATIONAL INDUSTRIAL COURT (1978 – 2006) hereinafter referred to as (DJNIC) p. 334 at 335 Ratio 1 where this Court held that: The terms and conditions of employment set out in a company’s handbook, form the basis of the contract of employment between the company and its employees. To now answer the original question of the effect of the absence of the letter of employment of the claimant in the instant case, will depend on the nature of evidence before the Court. The Claimant has testified that the conditions or terms of her contract of employment with the Defendant allegedly breached are as contained in Articles 17:7 – 17:10 of the Defendant’s Employee Handbook and not any term or conditions spelt out in the letter of appointment. This, the Defendant’s only witness admitted under cross-examination when he stated that: I agree the Claimant’s entitlement, that is 100% benefit in Clause 17:10(b) of Exhibit J is not stated in Exhibit I. Based on the forgoing conclusion, I firmly hold the view that failure to tender the Claimant’s letter of appointment is not fatal to this case. The Claimant has shown that her claims are based on the Handbook and not the letter of appointment. It is the Defendant who says the terms and conditions of appointment of the Claimant’s employment are contained in the letter of appointment: it follows that it is the Defendant that needs that letter to ground its case and not the Claimant. The claimant said my case is grounded by the Handbook: the defendant asserted in the contrary that, it is grounded by the letter of appointment. He who asserts must prove. The Claimant has proved what she asserted. The Defendant must prove its contrary assertion to rebut it. This is more so in view of the fact that the Defendant who must have the duplicate copy of the Claimant’s letter of appointment in the Claimant’s Office File in their custody failed to produce it to show that it was indeed the letter of appointment that contained the conditions of service. This shows that the Defendant is just out to take undue advantage of the absence of the letter of appointment. After the Claimant has proved that the relevant conditions of employment in issue are contained in the Defendant’s Handbook, the burden of disproving this shifted to the Defendant who must establish the contrary to sustain their denial. Having failed to do this, the Defendant has therefore failed in this respect. Burden of proof shifts in civil cases. Having dealt with this preliminary issue, I now come to the issue of whether the content of the handbook, that is Exhibit J, is binding on the Defendant. This is the real question to determine. The Defendant’s Counsel has relied heavily on Article 1.4 of the Handbook which provides thus: The general conditions of service herein contained do not confer any rights beyond those specifically provided in individual letters of appointment but they are on all questions of discipline binding on all staff except in so far as these conditions are either expressly or impliedly excluded or modified by individual letter of appointment. This provision, he submitted, makes the conditions contained in the Handbook not binding on the Defendant. But as can be observed, the conditions and terms of employment imposed by the provisions are made enforceable on the employee only, the implication being that there are no reciprocal rights and obligations on the parties to the contract. And because the terms and conditions imposed by the Handbook are printed and by virtue of the compulsory “Acknowledgement” contained at the back of the Handbook which all newly employed candidates are made to sign, the Handbook is therefore a Standard Form Contract which terms are onerous on the hapless employees, who want of employment are compelled to accept anything, while the reciprocal obligations of the all-powerful employer are made subject to her whims and caprices. There cannot be a duty without a corresponding benefit in employment matters. Parties are expected to take contracts as a whole, while taking the benefits they must also be ready to honour the corresponding obligations. To attempt to escape the employer’s corresponding obligation will amount to sharp practice. In SECRETARY IWO CENTRAL LOCAL GOVERNMENT V. ADIO (2000) LPELR – 3201 (SC) P. 61, PARAS. B – D; (2000) FWLR (PT. 7) 1142 AT 1152 RATIO 17; and also (2000) NWLR (PT. 667) 115 AT 150 PARA F the Supreme Court held that: Equity, as we all know, inclines itself to conscience, reason and good faith and implies a system of law disposed to a just regulation of mutual rights and duties of men in a civilized society. It does not envisage sharp practices and undue advantage of a situation and a refusal to honour reciprocal liabilities arising therefrom. It will demand that a person will enter into a deal as a package- enjoying the benefits thereof and enduring at the same time the liabilities therein… By virtue of Articles 17:7 – 17:10 which are in contention here, individual permanent employees of the Defendant are entitled to some terminal benefits graduated in accordance with the number of years put into the service of the Defendant and the consideration on the part of the employees is that they must put in their best and obey the contents of the Handbook: For the said Article 17:10[b] of the Handbook provides thus: Members who have completed 2 years service with the bank and who are not dismissed on account of fraud, misconduct or any criminal offences, [for this resignation to avoid dismissal on any of the above grounds shall count as dismissal] shall be entitled to a portion of the Bank’s contributions as shown below. [Bold type for emphasis] Entitlement to Bank’s contribution from date of entry: Less than 2 years Nil 2 years but less than 3 years 20% 3 years but less than 4 years 30% 4 years but less than 5 years 40% 5 years but less than 6 years 50% 6 years but less than 7 years 60% 7 years but less than 8 years 70% 8 years but less than 9 years 80% 9 years but less than 10 years 90% 10 years and over 100% The pre-conditions to earning the benefits itemized above are that employees must not be dismissed on account of fraud, misconduct or any criminal offences - these are what the employees have to suffer to entitle them to the benefits: that is the consideration to be offered by the employees to secure the promise. Thus, the employees are therefore encouraged and indeed entitled to look forward to earning these benefits. If at the end of the day while the employees have carried out their part of the contract, the employer by virtue of the exemption clause contained in Article 1.4 seeks to dodge its obligation, the exemption clause will in this instance be inconsistent with the fundamental term of the contract contained in Articles 17. 7 – 17.10 of the Handbook and this will at the same amount to a fundamental breach of the contract; and equally allow the company to engage in sharp practices on its employees, all which the law frowns at – See Nigerian Commercial Law, M.C. Okany, African-Fep Publishers Limited, Ibadan, 1992, pp.124 – 125; and The Law of Contract, G.H. Treitel, Stevens & Sons, London, 1979, p.178. If the employer: the Defendant bank in this instance knew it was not going to honour this promise why did it make it in the first instance? The defendant was not compelled by the employee to make this promise. It is the employer, out of its free volition, who made this part of the terms of its contract with the employees; so its payment must not be left to the caprices of the employer. As seen above, the employer has extracted its own consideration from the employees and it must honour its reciprocal pact. In addition, standard form contracts have been held to be subject to the test of reasonableness and, where it is found that an exemption clause contained therein is totally unreasonable, a court is at liberty to void it – see SONNAR [NIG.] LTD & ANOR. V. PARTENREEDRI & ANOR [1987] LPRLR – 3494 [SC] PP 26 – 27 PARAS. C – A; [1987] NWLR [PT. 66] 520; [1987] ALL N.L.R. 548; AND [1987] 9 – 11 S.C. 121; where the Supreme Court made the following illuminating comments on contracts of adhesion otherwise called standard form contracts: They party with the bargaining power dictates the terms. The weaker party is presented with a form and asked to “sign here”. He does of course. Nothing happens until trouble arises. The goods are lost and the weaker party is told “Look here you have no claim, you signed here or did you not?” In England, the Law Commission has looked into the matter and taken care of it. In this country, there could be a recourse to the common law for, in Gillespee Bros. and Co. Ltd. v. Roy Bowles Transport Ltd. 1973 Q.B. 400 Lord Denning suggested the reasonableness test. An objective test of reasonableness could easily be an answer to the problem posed by contracts of the nature that imports inequality in the parties”. Drawing inference from the above authority and Nigerian Commercial Law by M.C. Okany supra, I hold the view that the exemption clause in this respect is also totally unreasonable. It will allow the Defendant to turn citizens of this nation, who are their employees, into slaves without any right at all while the Defendant will have all the benefits of the contract for which the employees have paid their consideration. A labourer deserves the fruit of his labour. Any master that makes him not to has, in effect, turned him into a slave. For, it is only a slave master that can do that. Thank God, section 34 of the 1999 Constitution as altered has made slavery and all forms of degrading and inhuman treatments unlawful in Nigeria. For, how would one classify a situation where a promise or bait is offered to secure the total loyalty of employees and after the employees, based on the expectation put on this promise, dutifully served the Defendant without breaching any of the pre-conditions; and at the maturity of the promise, the employer now says it cannot fulfill the promise! This is totally unreasonable, unconscionable, and exploitative; and amounts to degrading and inhuman treatment. It must not be allowed to stand by any court of law in a civilized society. The African Charter on Human and Peoples’ Rights [Ratification and Enforcement] Act, Cap. A 9, LFN, 2004 in its Article 5 proscribes this form of behaviour in unmistakable words: Every individual shall have the right to the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly, slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. [Emphasis supplied] Not done yet, Article 15 of the same Act also secures workers against exploitation in the following admirable words: Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work. [Emphasis supplied] Nigeria is a signatory to this Act and it has been domesticated. It is thus binding in Nigeria. I hold the view that the scenario of this case violated all that have been prohibited in the quoted sections. By the force of these provisions, I hold that the exception clause in issue is null and void. Arising from the compulsory signing of the acknowledgment form contained at the end of the Handbook by every employee, it follows that the sail has been taken out of the argument of the Defendant’s Counsel that the Handbook is not binding because it was not signed. As to the second leg of the argument that the Handbook is undated and as such it is not binding, this argument cannot also hold water in that the acknowledgment portion where the employee is to sign contains a column for date of signing which the employee must fill. It follows that the Handbook takes effect on each individual employee and the employer on the date such employee signs it. The law is not that two sides must sign an agreement to make it valid, more so when this is a Standard Form Contract which, by its nature, is only expected to be signed by only one of the parties to it – see SONNAR [NIG.] LTD & ANOR. V. PARTENREEDRI & ANOR. The fact that the Bank is the author of the Handbook and therefore the terms contained therein is not in dispute and the person it wants the Handbook to bind has signed it: that is all. Counsel to the Defendant has also raised arguments against the bindingness of Exhibit J on the ground that it is not a collective agreement. Without wasting much time on this, I agree with Counsel that Exhibit J is not a collective agreement. One, based on my earlier reasoning that the said Exhibit is a Standard Form Contract; it follows that it cannot be a collective agreement. Two, by virtue of section 47 of the Trade Disputes Act, which has received judicial interpretation of this Court in NATIONAL UNION OF HOTELS AND PERSONAL SERVICES WORKERS V. ALIFUN HOTEL AND CATHERING LIMITED (2005) DJNIC 529 AT 532 RATION 3, the Handbook is not a collective agreement within the contemplation of law; it not being an agreement entered into by an employer or its representative and a trade union or its representative. The Defendant’s Counsel also argued that Articles 17:7 – 17:10 of the Handbook will not avail the Claimant in that those articles only confer benefits on retirees which the Claimant is not; because the Claimant disengaged at age 38 whereas the retirement age envisaged by Article 17:6 is the anniversary of the 60th birthday or at an earlier age on account of ill health or at age 45 with the permission of the Defendant, none of which the Claimant allegedly qualified for. But I beg to disagree with the contention of the learned Defendant’s Counsel which seems, to me, to have failed to pay attention to the provisions of Articles 17:7 – 17:10 which relate to benefits payable to employees of the Defendant who disengaged without meeting the conditions specified in Article 17:6. The title of Article 17:10 is “BENEFITS OF LEAVING SERVICE BEFORE RETIREMENT” and it outlines what this category of officers are entitled to. So the argument on this account is, with respect, misplaced. And I therefore hold that Articles 17:7 – 17: 10 grant benefits equally on officers that disengaged before reaching retirement age. These Articles speak for themselves. Defendant’s Counsel has also argued that the severance gift being claimed by the Claimant is a gratuitous gift not supported by any consideration and as such unenforceable. My take on this is that clauses of a document are not construed in isolation but as a whole. A careful perusal of the Handbook as a whole shows clearly that while the Defendant places upon himself the obligation to pay benefits contained in the Handbook, it also places on the employees the obligation to be diligent in their work so that there is reciprocal considerations. That there is consideration is clearly underlined by the wording of Article 17:10(b) of the Handbook which clearly indicated the condition precedent, ipso facto, the consideration for payment of the benefits in question. It provides thus: Members who have completed 2 years service with the bank and who are not dismissed on account of fraud, misconduct or any criminal offences, (for this purpose resignation to avoid dismissal on any of the above grounds shall count as dismissal) shall be entitled to a portion of the Bank’s contributions as shown below. Entitlement to Bank’s Contribution from date of entry: Less than 2 years Nil 2 years but less than 3 years 20% 4 years but less than 4 years 30% 5 years but less than 6 years 50% 6 years but less than 7 years 60% 7 years but less than 8 years 80% 8 years but less than 9 years 90% 10 years but and over 100% [Underling mine for emphasis] Even if this is not so, employers have been held liable, by this Court, to pay benefits promised to workers in situations less clear than this, once it is shown that the employers duly made such promises- See the case of MANAGEMENT OF METAL CONSTRUCTION (W.A.) LIMITED V. METAL PRODUCTS WORKERS’ UNION OF NIGERIA (1984) DJNIC 152 AT 155 RATIO 6 where this Court held that: Where there is a previous definite promise by the company to pay to workers, the workers would be entitled to payment of Christmas bonus in spite of any loss suffered by the company in that year. See also the case of METAL PRODUCTS SENIOR STAFF ASSOCIATION OF NIGERIA V. MANAGEMENT OF METAL CONSTRUCTION (W.A.) LTD (1988) DJNIC 237 AT 238 RATIO 4 where this Court also held that: Where the Court finds, as in this case, that there is no provision for terminal benefits payable to senior staff in his contract agreement, the Court will take note of the provisions for gratuity benefits payable to workers as specified in the conditions of service for junior workers, and order that the senior staff be paid terminal benefits. The case of the Claimant herein is made more certain in that the benefits in issue are contained in the Handbook of the Defendant which forms the basis of contract between the Defendant and its employees; and the basis of graduation is clearly stated therein. Inferring from my reasoning above, I come to the conclusion that severance benefits once clearly provided for by an employer are enforceable without the need to prove consideration; notwithstanding that consideration is ably proved in this case. The Defendant’s Counsel submitted that the Claimant cannot place reliance on Exhibit G (the internal memo dated October 5, 2007) “because the compensation contained in the Defendant’s Internal Memo dated October 5, 2007 (Exhibit G) was an annual payment commencing on October 1, 2007 in which case the first anniversary would have ended on September 30, 2008 at which time the Claimant would have long left the services of the Defendant” This argument, as it is, with the greatest respect, cannot be valid. A close perusal of Exhibit G shows that its commencement date is the 1st of October, 2007 whereas the Claimant disengaged on the 16th of October, 2007, which means the Claimant takes the benefit of Exhibit G for the purposes of calculating her benefits in issue for the last year of her service, since these benefits are based on monthly basic salaries; and ipso facto annual basic salaries. Now on the argument of the Defence that the Pension Reform Act nullifies the scheme provided by Articles 17:7 – 17:10 of the Defendant’s Handbook as its continuance will amount to giving the employees double benefits while obliging the Defendant to suffer double jeopardy. I have combed through the provisions of the Pension Reform Act, 2004 and I have not found that it forbids an employer from providing additional benefits to workers in addition to complying with the provisions of the Pension Reform Act, 2004; and neither has the defendant shown that it has cancelled the entitlements in issue by issuing a memo or circular to its staff showing that it has been cancelled or presenting any evidence to show that it notified its employees that they shall now earn only the entitlements allowable under the Pension Reform Act, 2004. Equally, counsel has not shown to me the particular provision of the Pension Reform Act that would be breached if this benefit is paid. It follows that it is not necessary for the Claimant to go further to adduce evidence to show that this same benefits are still been paid to other workers to prove that the employer has a duty to pay it. It should also be noted that the conditions attached to the enjoyments of these benefits are quite different from those attached to enjoyment of the benefits provided for under the Pension Reform Act, 2004: In essence, they are two different things. The difference is clearly shown when one considers the provisions of Article 17: 6 of the Handbook, which provides for pension and Article 17:7 – 17:10, which provide for this benefit. Having successfully done this, the burden has been shifted to the Defendant which they have failed to disprove. However, that does not mean the pieces of evidence are not needed for any purpose; at least for establishing discrimination which is alleged or as alternative means of establishing the sanctity or sacrosanct of the benefits in question. I therefore hold that the benefits contained in Articles 17:7 – 17:10 of the Defendant’s Handbook remain sacrosanct and that the Claimant is entitled to them. Having answered the question of whether the Defendant’s Handbook constitutes binding contract between the Defendant’s employees, of which the Claimant is one, and the Defendant in the affirmative, I can now proceed to the 2nd question distilled for the determination of Issue No. 1. The 2nd question to answer in putting to rest Issue No. 1 is “whether the Claimant has proved her case as required by law?” To it we now turn. As argued by the Defendant’s Counsel, it is the duty of the Claimant who asserts that she is entitled to some benefits to prove her entitlement to the satisfaction of the Court as required by law. In trying to do this, the Claimant testified that she was employed by the Defendant on 9th of January, 1991 and that she put in 16 years before retiring in 2007 as a Deputy Manager. She testified that by virtue of Articles 17:7 – 17:10 of the Defendant’s Handbook she was entitled to N25, 699,257.79 severance gift. In trying to prove the above testification Claimant tendered the Defendant’s Handbook, which was admitted as Exhibit J and the Internal Memo dated 5th October, 2007 which reviewed the compensation [another name for salary] payable to the Defendant’s employees and which was admitted as Exhibit G. The Claimant relied heavily on Articles 17:7 – 17:10 of the Handbook. A close examination of the Handbook no doubt showed that the Claimant shall be entitled to some benefits as conferred in the said Articles. However, these benefits are not sums of moneys to be arrived at without some calculation or computation. The Claimant has tabulated heads of benefits giving rise to N699, 257.79 with the last column of the tabulation showing a head dealing with severance gift totaling N25, 000,000, the cumulative of all the different heads totaling N25, 699, 257.79. The Defendant’s Counsel has made a heavy whether on the fact that it is impossible to know the basis of arriving at the N25, 699, 257.79 entitlements being claimed because the claimant did not tender any evidence to show her annual salary. In a claim of this nature what are the things required to be proved to obtain judgment? I have closely studied the contents of Exhibit J, particularly the provisions of Articles 17:1 to 17:10. By virtue of Article 17:2 titled “Funding”, the sources of the monies to be paid into the funds from which the severance gifts will be paid are indicated. It is clear therein that from the first year of entering into the employment of the Defendant, once such employee spent up to two years, an amount equal to 20% of the employee’s monthly basic salary is paid on monthly basis by the Defendant, which graduated cumulation, as earlier shown above, will be paid at the exit to a worker who though disengaged before reaching retirement age but has nonetheless put in at least two years. From the provisions of Article 17, it is clear that to know how the Claimant arrived at the cumulative figure; she must produce evidence of her basic salary for at least each year she served the Defendant [that is if the basic remains constant for a year] or in the alternative each monthly basic salaries for the 16 years and thereafter show what amounts to 20% of the total aggregate: that is after showing each year like that for the 16 years spent, she would now calculate the total cumulative sum which will be the final total figure. The Claimant has only being able to produce Exhibits ‘B’ and ‘G’ which indicated her basic salaries contained in the letter of promotion dated 13th April, 1992 and her basic salary for the last year she served the Defendant. For the rest of the 16 years, it is unknown what her basic salary for each year was. And to make matters worse, the Claimant’s Counsel did not deem it fit to plead how they arrived at cumulative sum and neither was evidence led in this regard. Thus, it is totally impossible at this stage to state with any measure of assurance the bases of arriving at the cumulative total sum of N25, 000,000.00 being claimed as severance gift. And a Court of law is precluded from embarking on a journey of discovery and neither is a competent a court of law allowed to speculate on a piece of evidence not adduced before it be it documentary or parole– see ADETORO V. OGUNLEYE (2000) FWLR (PT. 26) C.A. 1833 AT 1837 RATIO 10 where the Court of Appeal held that: Courts are not to speculate on contents of documents not produced or tendered before it. Ancillary to the above is the issue raised in the pleading of the Claimant that others in the employee of the Defendant who disengaged in similar circumstances were paid the entitlements in question even after the enactment of the Pension Reform Act, 2004 and after the Claimant had left. This in effect raises the question of discrimination apart from being an alternative means of proving the Claimant’s entitlement to the benefits in issue. The Claimant could not tender evidence to show that one Mrs. Agapu she pleaded in her Statement of Fact was paid similar benefits: the Counsel having withdrawn photocopy of the said letter which he attempted to tender on objection from the Defendant’s Counsel on that proper foundation was not laid. The other disengaged employees mentioned by the Claimant were not pleaded before they were adduced in the Claimant’s Evidence-in-Chief as contained in the Sworn Witness Statement. And the law is that evidence given on an unpleaded fact goes to nothing and there has not been an amendment to bring the pleading in line with evidence already led, therefore, the evidence goes to no issue – see OKHUAROBO & ORS V. AIGBE [2002] 9 NWLR [T. 771] 29, [2002] LPELR – 2449 [SC]; OKOKO V. DAKOLO [2006] 14 NWLR [PT.1000] 401, [2006] LPELR – 2461 [SC]. Arising from the above, the issue of discrimination is therefore not proved. Having come to this conclusion, it follows that the Claimant has been able to establish: (1) That she does not need her letter of employment to ground her claims in this suit; (2) That the Handbook contained the conditions of service of the Defendant for its employees; (3) That the Handbook is binding on both the Defendant and its employees, including the Claimant; (4) That the Pensions Reform Act, 2004 does not preclude the Defendant from having other forms of disengagement benefits for its staff in addition to those contained in the Pension Reform Act; and (5) That the Defendant’s Handbook contained such other form of disengagement benefits for its staff, to which the Claimant is entitled. However, the Claimant has not been able to establish to the satisfaction of this Court how she arrived at the cumulative sum being claimed. Though, the Claimant has shown that she is entitled to the benefits [that is the relief claimed] contained in the Defendant’s Handbook, but she has not proved exactly how she arrived at the cumulative sum of N 25, 000,000 [twenty five million] being claimed as her entitlements. The process to arrive at the cumulation or aggregate, being a mathematical process, must be based on ascertainable data as presupposed by Articles 17: 2 and 17: 10 of the Defendant’s Handbook, which unfortunately the Claimant has failed to do. Based on the above reasoning, it follows that the Claimant is not entitled to judgment. But the question is; is the Defendant also entitled to judgment? My humble opinion is that the Defendant is not also entitled to judgment; being that it had equally not been able to discharge any of the burdens placed on it arising from the initial prove of the Claimant’s case. It therefore appeared that it would meet the justice of the case to non- suit this action. To dismiss the case of the Claimant, which I have come to the conclusion that the claimant has proved to the satisfaction of the Court, except with regard to the computation of the relief, must amount to gross injustice to the claimant – see BALOGUN V. UBA [1992] NWLR [P. 247] 336, [1992] LPELR – 728 [SC], [1992] 7 SCNJ 61; and EFETIROROJE V. OKPALEFE II [1991] 5 NWLR [PT. 193] 517, [1991] LPELR – 1024 [SC], [1991] 7 SC [PT. 1] 105. This Court has the power to non-suit an action by virtue of section 254D (1) of the 1999 Constitution as altered, which gives the National Industrial Court the power to exercise any power exercisable by a High Court in Nigeria. The Federal High Court being a High Court conferred with the power to non-suit an action, the National Industrial Court automatically has the power to non-suit an action; not withstanding that its Rules do not contain such provisions. This view is complemented by sections 12 and 14 of the National Industrial Court Act, 2006 which give the Court power to depart from the rules of Evidence Act in the interest of justice and empowers the Court to grant any remedy as any of the parties may appear to be entitled to, which may be brought up by the Court – see STEPHEN KAURA & 35 ORS. V. UNITED BANK FOR AFRICA PLC (2005) 8 NWLR (PT. 926) 24 AT 38 PARAS. A – C; where the Court of Appeal held that: The power to non-suit must be statutorily conferred on the court by rules of court. See also Order 21(1) of the Federal High Court Rules which provides thus: Where satisfactory evidence is not given entitling the plaintiff or the defendant to judgment of the court, the Judge may on his own motion or upon application non-suit the plaintiff, but the parties or their counsel shall have the right to make submissions on the propriety or otherwise of making the order. [Emphasis supplied] Having arrived at this point, I then called on the Counsel to the parties to this action on 17th January, 2013 to address me on whether or not to non-suit this action, on the sole ground that the Claimant has not been able to show how she arrived at the total sum being claimed - see KAURA V. U.B.A SUPRA P. 37 PARAS. G – H. AND ORDER 21 [1] OF THE FEDERAL HIGH COURT RULES. Pursuant to the Court’s order on the 17th of January, 2013 that counsel to both sides should address it on the propriety of non-suiting the case, the Claimant’s counsel filed a written address dated the 22nd day of January, 2013 and filed the same date. The Defendant’s Counsel also filed a written address dated the 22nd day of January, 2013 and filed on the 23rd day of January, 2013. The claimant’s counsel submitted that a Court considering whether to non-suit a case, the Court must do justice to the case by not making an order that would jeopardize the interest of the plaintiff. Counsel relied on the case of ELESO V. GOVERNMENT OF OGUN STATE & ORS [1990] 2 NSCC to the effect that the Court should not non-suit the case but should give judgment to the claimant. Counsel argued further that the Court should invoke section 14 of the National Industrial Court Act, 2006 [NICA 2006] to finally dispose of this case by granting necessary reliefs to the claimant instead of non-suiting it. It was alternatively argued that instead of non-suiting the case, the Court should exercise its powers under section 29 of the NICA 2006 as ably complemented by section 14 of NICA 2006 to invite a certified chartered accountant to calculate the entitlements as provided under Article 17:10 of the defendant’s Employee Handbook with 21% percent interest from the date of her retirement till judgment is delivered in this case. Counsel cited DIAMOND BANK V. PARTNERSHIP INVEST. CO. LTD & ORS [2009] 12 SC [PT. 2] P. 163. This case, amongst others decided that a court has inherent power to grant orders not prayed if such order is incidental to the prayers sought and that a court can grant interest on monetary claims even if such prayer was not contained in the reliefs sought; and even after judgment. Counsel further cited OSINOIKI V. ILEKUN [2003] FWLR [PT. 162] 1768; EYE V. QUDAS [2001] 15 NWLR [PT. 737] 620; AMAECHI V. INEC [2008] VOL. 158 LRCN 1 AT 184; OBAYAGBONA V. OBAZU [1972] 5 SC 247; GARBA V. UNIVERSITY OF MAIDUGURI [1986] 1 NWLR [PT. 18] 550; AND OKUPE V. FBIR [1974] 1 ANLR 314. Counsel to the Claimant further argued that in the 2nd alternative, the Court can direct the defendant to calculate the entitlements of the Claimant and that such calculation and how it is arrived at must be shown to the Court. To buttress this line of reasoning, Counsel cited the case of HENRY O. AWONIYI & ORS V. THE REG. TRUSTEES OF THE ROSICRUCIAN ORDER, AMOCK, NIG. [2000] LPELR- SC. 182/1999; where the meaning and purpose of consequential order, were stated. Counsel went further to canvass that since the only relief sought by the claimant is the payment of her entitlements; the Court is empowered to make such orders that will bring justice into the case by awarding the rightful entitlements to the claimant. And counsel rounded this up by saying that it is conceded that non-calculation of the entitlement is a mistake on the part of counsel but that the Court should not visit the mistake of counsel on the litigant. He cited MOBIL OIL PRODUCING UNLTD. V. MONOKPO [2003] 18 NWLR [PT. 852] 346 AT 414 – 415; and this was to the effect that a litigant should not be punished for the mistake of counsel in procedural matters. And Counsel also submitted that where there are two applications before the Court, the Court should adopt the one that will breathe life into the case against the one that attempts to kill the case. Counsel also relied on MOBIL OIL supra, where the Court considered the issue of two competing motions. Counsel finally argued that where there is a right there is always a remedy and cited ETALUKU V. N.B.C. PLC [2004] 15 NWLR [PT. 896] 370 AT 400; SALEH V. MONGUNO [2006] 15 NWLR [PT. 1001] 26 RATIO 5; BELLO V. A-G. OYO STATE [1986] 5 NWLR [PT. 45] 828; and STITCH V. A.-G, FEDERATION [1986] 5 NWLR [PT. 42] 1007. Having summed up the submissions of the Claimant’s Counsel on the issue of non-suit, it is now the turn of the Defendant’s Counsel. The Defendant’s Counsel in his Written Address dated the 22nd of January, 2013 and filed the 23rd of January, 2013, commenced by arguing that an order on non-suit can only be made where there is no satisfactory evidence entitling either of the two sides to judgment. Counsel submitted further that before this order can be made it must appear on the record of the court that the plaintiff has not failed in toto and the Defendant would not in any case be entitled to judgment. Therefore, Counsel submitted that an order of non-suit cannot be made where the plaintiff has failed to establish the case put forward in his pleadings. Counsel relied on KACHALA V. BANKI [2006] 8 NWLR [PT. 982] 364 and KAURA V. U.B.A. PLC [2005] 8 NWLR [PT. 926] 24. Counsel went further to argue that since the claimant has failed woefully to discharge the burden of proof placed on her, the Claimant’s case should be dismissed; or in the alternative, judgment should be entered for the defendant. Counsel finally submitted that the Defendant is entitled to judgment in respect of its Counter-Claim which the Claimant has admitted. I have most painstakingly pondered the arguments of Counsel to the two sides on the issue of non-suit. My understanding of the crux of the Claimant’s Counsel’s arguments is that the Court should exercise its powers under sections 14 and 29 of NICA, 2006 and the Rules of this Court to appoint an assessor or an accountant to do the calculation which he omitted to lead evidence in prove of in court or in the alternative the Defendant should be compelled to do this. Ancillary to the above is that the omission to prove in Court how the Claimant arrived at the cumulative sum in issue being the mistake of counsel, should not be visited on the Client: that is the Claimant. My first observation is that the Counsel to the Claimant is oblivious of the fact it is first and foremost the duty of Counsel to do all that is needful in law to secure the interest of his client. The Supreme Court has held that: The preparation of the reliefs sought by a plaintiff is a function of the legal practitioner who settles the statement of claim from the brief he receives from his client. A plaintiff is not expected to know the niceties of the reliefs derivable from the totality of the facts he confides to his solicitor. Here, the Claimant’s Counsel has failed to lead evidence to establish how the entitlements of the Claimant, pursuant to the Defendant’s Handbook, add up to N 25, 000,000 and neither did he particularize these in the Statement of Fact nor did he list all the documents from which these could be calculated. To make matters worse, the case has been closed; and up till the present moment, there is no proper application from the Claimant’s Counsel to regularize this awkward situation: to regularize it now, the case would have to be reopened. Mark it; there is no application to that effect up till the moment. The provisions of sections 14 and 29 of the NICA, 2006 which; the Claimant’s Counsel is relying upon to urge the Court to do his case for him or in the alternative compel the Defendant to perform his duties for him, would not avail him, in this respect. That the Claimant’s Counsel is urging such on the Court, is to say the least, laughable! Instead of concentrating efforts on how to properly perform his duties, he is busy wasting time on how to persuade others to do his work for him. Section 14 of NICA, 2006 empowers the Court to grant any remedy it deems fit in the circumstance of a case in order to avoid multiplicity of legal proceedings. But it does not in my humble view say that the Court should suo motu re-open a case, perhaps amend pleadings, lead evidence, and tender documents and do all that are needful for a Counsel to do. Likewise, the provisions of sections 29 of the NICA, 2006 seem to suggest that all the steps which they permit the Court to take are steps which must be taking before the close of a case: they do not seem to empower the Court to suo motu re-open a case already closed for the purposes of possibly amending pleadings or tendering documents which possibly have not been pleaded or tendered; and from which the necessary calculations must be done – see ISAAC OMOREGBE V. LAWANI [1980] 3 -4 SC 70; LER [1980] SC 89/1979 PP. 4 – 6; [1980] LPELR – 2655 [SC] PP. 20 – 22 PARAS. A – G; to the effect that a Court cannot suo motu reopen plaintiff’s case once closed for the purpose of recalling a witness to lead further evidence; and would rarely allow a plaintiff to reopen a case, for the purpose of recalling a witness, even where there is proper application to that effect. To this extent, I hold that sections 14 and 29 of the NICA, 2006 or any other section in that behalf would not avail the Counsel: counsel must learn to do their jobs properly. In fact, it would appear that the claimant’s Counsel has a penchant for not doing his job properly; bearing in mind that this same Counsel has failed to tender successfully the photocopy of the letter [the letter pleaded] of the Defendant to one Mrs. Agapu. This letter, the Claimant had alleged would show that the Defendant still pays the benefits in issue to its employees. The failure in this instance was as a result of the inability of the counsel to properly plead this in the Statement of Facts of the Claimant. Equally, this same Counsel has made his client [the Claimant] to give evidence on unpleaded facts without knowing that he had to amend [either prior to or after] to bring these pieces of evidence in line with the pleading. And in all these situations, the pieces of evidence were relevant to the case of the claimant. These pieces of evidence might have established discrimination which the Claimant also alleged. Yet the Counsel did not do the proper thing in all these instances! I repeat: Counsel must learn to do their job diligently and responsibly. The Defendant’s Counsel has argued that the order of non-suit cannot be granted in a situation where the plaintiff [in this case, the Claimant] has not established the case put forward in his pleading. In view of my holding that the Claimant has proved her case and is entitled to the benefits contained in the Defendant’s Handbook; the sail has been taking out of this argument. The Claimant has successfully proved that she is entitled to the relief claimed but has merely failed to plead and lead evidence to show how she arrived at the cumulative sum being claimed. This answers the arguments of the Defendant’s Counsel on the issue of non-suit. The question now; is what order is the Court supposed to make, in the circumstances of this case: in order words, is the order of non-suit proper? The Supreme Court has laid down the essence of non-suit thus: A non-suit is not a favour to either side. It is not meant to rob a party of technical success but it is based on the foundation of justice itself that the door of justice should not be shut against a party who has not totally failed to prove his case. Sometimes the fault is that of the trial judge who has misdirected himself in law. The overall essence is to see that justice is done and that opportunity is given for another trial. [See UGBODUME & ORS. V. ABIEGBE & ORS. [1991] LPELR – 3316 [SC], p. 23, paras. A – B.] The Supreme Court in the same case went further to adumbrate on the factors that a court should consider before entering a non-suit. It stated that: It should not be ordered if the Court is satisfied that the respondents, as the plaintiffs had failed completely to prove their case and if it is obvious that to so order is merely to enable unsuccessful plaintiff to have a second bite at the cherry. That would be injustice to the defendants. In order words, it will not be ordered if the defendants were entitled to judgment. The order of non-suit has long ceased to be the technical procedure it used to be: it is one that can only be properly made upon the dictates of justice to both sides, when upon a calm and full view of the scale of the case in favour of either side, that the court can say that no side is entitled to win. … The court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the case would be wronging the plaintiff. [P. 28, para. G – F.] In the above case, the Supreme Court based on the above exposition of the law, non-suited the case. In YESUFU V. AFRICAN CONTINENTAL BANK LTD [1980] LPELR – 3521 [SC]; the Supreme Court non-suited the suit. The facts of this case that are relevant for our purpose here are that the defendant, now appellant, in the case took some overdraft loans from the plaintiff now respondent bank which the Bank in their Statement of Claim alleged, inclusive of interest and other charges, was a total sum of N 1, 128, 057. 40. At trial the respondent as plaintiff led evidence and tendered some documents to prove its case. The appellant also led evidence in prove of their case. The trial Court found that the sum of N 661, 993. 42 out of the total sum was proved and thereby awarded it to the plaintiff. The defendant being dissatisfied appealed to the Court of Appeal. The Court of Appeal non-suited the case on the following grounds: There is no doubt in our minds that the defendant is indebted to plaintiff in some amount of money having regard especially to Exhibit “8” in this case. It is just that it is not possible to quantify the amount of indebtedness on the authorities and evidence before the court. We are however satisfied that this is not a case of where the plaintiff’s case should be dismissed since that undoubtedly will be wronging the plaintiffs. On the evidence before the lower court the defendant definitely is not entitled too [sic] judgment since it is clear that he owed something to the plaintiffs. … The order we propose therefore, to make guided by the decision of the Supreme court [sic] in Chief Dada Ogunremi and Anor. [sic] 1967 N.M.L.R. 18 at 185 is to non-suit the plaintiffs. The appellant being dissatisfied with this order of the Court of Appeal appealed further to the Supreme Court. The Supreme Court reviewed the appeal in the following words: It is the law that a non-suit order should not be made unless two elements are present in the aborted trial, namely: (a) It must appear on the record of the case taken as a whole that the plaintiffs have not failed in toto, and (b) That in any case, the defendant would not be entitled to the judgment of the court. This clearly brings into focus the element of fair play, which is all that court Proceedings [sic] are about. It would be facile to argue that the above two elements do not exist in this case. In my view, they impinge violently on one’s attention. The attitude of this court as regards the order of non-suit may be found in the following cases, to mention just few: (a) Craig v. Craig [1960] 1 A.N.L.R. p. 173. (b) Chief Dada v. Chief Ogunremi [1967] N.M.L.R. p. 181. (c) Onwunalu v. Osademe [1971] 1 A.N.L.R. p. 1425. (d) George v. U.B.A. [1972] 1 A.N.L.R. [part 2] p. 347 [sic] I found nothing that commended itself to me in the argument of the appellant’s counsel and I had no doubt in my mind that the appeal lacked merit and should be dismissed as it was in fact done. The decision of the Court of Appeal in this matter dated 31st May, 1979 is hereby affirmed. In this particular case, I have found that the Claimant is no doubt entitled to the benefits provided in Articles 17: 2 and 17: 10 of the Defendant’s Handbook pursuant to which the Claimant claimed the Sum in issue but the only snag why the Court could not go ahead to pronounce judgment in favour of the Claimant is the fact that the cumulative sum being claimed was not satisfactorily proved as sufficient evidence was not led as to the data and mathematical bases of arriving at it. This satisfies the first requirement enunciated in the above-cited case. Equally, it is has been found that the defendant owes the Claimant some amount pursuant to its Handbook. Thus, the Defendant is not also entitled to the judgment of this Court. Consequently, the second precondition listed in the case cited above has been eminently met. The extant case is therefore on all fours with the case cited above. And what is more, after the initial proof by the Claimant of her entitlement to the relief sought, and the burden of proof shifted to the Defendant, the Court found that the Defendant did not and could not rebut the case of the Claimant. It follows that while the Claimant is not entitled to the judgment of the Court the Defendant is equally not entitled to the judgment of this Court. I therefore hold that this case meets the twin requirements of awarding an order of non-suit. In addition, the error in issue is patently as a result of failure on the part of the counsel employed by the Claimant to properly carry out his duties; and the mistake of counsel should not be visited on the litigant in appropriate cases. I hold that this is an appropriate case where counsel’s mistake should not be visited on the litigant – see PROCTER & GAMBLE NIG. LTD. V. NWANNA TRADING STORES LTD [2011] LPELR – 4880 [CA] P.34, PARAS. C – D. I therefore non-suit the Claimant in this case. Parties are at liberty to amend their pleadings – see UGBODUME V. ABIEGBE supra p. 23 para. D. The law is that where a case is non-suited, cost must be awarded against the plaintiff in favour of the defendant – see UGESE V. SIKI (2007) 8 NWLR (PT.1037) 452 AT 462 PARAS. E; G – H; [2007] LPELR – 8201 [CA] 11 AT PARA. E; where the Court of Appeal held that order of non-suit is subject to the assessment of cost against the plaintiff in favour of the defendant. The cost of N85, 000. 00 [eighty-five thousand naira only] is, therefore, assessed against the Claimant and in favour of the Defendant in this non-suited case. I now come to the Counter-Claim filed by the Defendant in its Statement of Defence and Counter-Claim dated the 20th of December, 2011 and filed same date. The Defendant laid claim to the fact that the Claimant owed it the sum of N1, 141, 617.74. The Claimant has not denied this but only said she had a lien on the money by virtue of the fact that the Defendant owed her bigger sum of money from which it should deduct her indebtedness and pay her the balance. I agree with the Defendant’s Counsel that what is admitted needs no further proof – see ALINLAGUN V. OSHOBOJA & ANOR [2006] LPELR – 348 [SC] 30, PARA. D. The Defendant/Counter-Claimant has therefore proved the Counter-Claim to the hilt. And having come to the conclusion that the Claimant is not entitled to judgment in the main suit, it follows that judgment must be given on the Counter-Claim; which by law has its independent and separate existence from the main suit – see ALH Y. DAN HAUSA & COMPANY LTD V. PANATRADE LTD [1993] LPELR – 420 [SC] 16 – 17, PARAS. G - A. Since it is invariably the fault of the Claimant to prove her entitlement to the relief being claimed in the main suit to the hilt, albeit via her counsel, then it follows that the Court cannot continue to hold the hands of the Defendant from getting judgment on the Counter-Claim. The Claimant must consequently honour her indebtedness to the Defendant. I therefore give judgment on the Counter-Claim in favour of the Defendant/Counter-Claimant in the sum of N1, 141, 617.74 [one million, one hundred and forty-one thousand, six hundred and seventeen naira, seventy-four kobo] against the Claimant who is the Defendant to the Counter-Claim. I award no cost in respect of the Counter-Claim. ………………………………………………. Hon. Justice B.A. Adejumo, OFR President, National Industrial Court of Nigeria