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The claimant filed a General Form of Complaint and other frontloaded documents dated and filed on 11th June, 2012 seeking the following reliefs: 1. The sum of N21,778,479.00 as damages for breach of contract of employment, wrongful deferment and non payment of his full benefits both before and after the termination of his employment. 2. 12% pre-judgment interest and 10% post judgment interest until payment 3. N250,000.00 as cost of this action. The claimant was on 17th October, 2012 granted leave to file an amended statement of facts dated 25th July, 2012 wherein he prayed for the following reliefs: 1. The sum of N23,397,475.00 calculated as follows: (a) Difference in remuneration between Principal Manager and Senior Manager from 5/11/2007 to 30/3/2009 - N5,610,958.00 (b) 5.04 months outstanding leave for 2007, 2008 and 2009 at the rate of N1,148,224.17 per month - N5,787,049.00 (c) Claim for deferment of Toyota and generator from 5th November 2007 to 30/4/2010 at the rate of N113,040.00 per month - N3,611,938.00 (d) 7.8 months remuneration as notice period at the rate of N1,148,224.00 per month from 7th September, 2009 to 30/4/2010 or in the alternative, 3 months total remuneration for 3 months notice period - N8,956,303.00 (e) Less 3 months basic salary credited to claimant’s account by defendant’s letter of 4/9/2009 - N568,773.00 Total Balance: N23,397,475.00 2. Pre-judgment interest at the rate of 12% from 11/12/2009 till judgment and 10% interest per annum from date of judgment until payment. Filed along with the Amended Statement of Facts are Claimant’s Witness Statement on Oath, List of Documents and List of Witnesses. In reaction, the defendant filed an amended Statement of Defence, Defendant’s Witness Statement on Oath dated and filed on 7th November, 2012. The claimant’s case is that by a memorandum dated 10th November, 2006 he was given a probationary employment for six months as Senior Manager on an annual salary and allowance of N6.2 Million and by the said memorandum, the defendant gave an undertaking to appoint him a Principal Manager subject to good performance and subject to other terms to be placed in the defendant’s handbook on its website. That he accepted the defendant’s offer of employment dated 10/11/2006 by endorsing a copy of the said letter and resumed work on 27th November, 2006. The claimant pleaded that he was also appointed the defendant’s treasurer on 12/01/2007 by a memorandum dated 26/01/06 by the defendant’s former Group Managing Director Mr. Adebisi Omoyeni. That he performed his work diligently and without any query during the probationary period and came first in the Liquidity Management Course organized by FDHL TRAINING for Central Bank of Nigeria for 20 Money Market Dealers between January 19 to 21, 2007. That by the defendant’s memorandum dated 7th November, 2007 his appointment as a Senior Manager was confirmed effective 5/11/2007. That the defendant reneged in confirming him a Principal Manager. That he protested his confirmation as a Senior Manager and by his letters of 4/01/2008 and 26/3/2008 he reminded the defendant of its obligation to confirm him as a Principal Manager but his letters were not replied to. The claimant further pleaded that by a memorandum Ref. WMB/146 dated 30/4/2009 the defendant’s Managing Director appointed him a Principal Manager with effect from 1/4/2009 on a remuneration of N12,642,281.05 per annum and that the appointment was late by about 17 months. That the defendant’s failure to confirm him a Principal Manager on 5/11/2007 is a breach of paragraph one of the agreement dated 10th November, 2006 and he claims the difference between the remuneration he should have earned as a Principal Manager between 5/11/2007 to 31/3/2009 and the remuneration he actually earned as a Senior Manager. The claimant pleaded that as a Treasurer of the defendant bank at the relevant period the remunerations of Managers were increased in November, 2007 without formal documents and that his remuneration as a Senior Manager was increased from N6.2 Million per annum to N8.6 Million per annum while the total remuneration of a Principal Manager was increased to minimum of N12.6 Million. That for the said breach he claims the sum of N5,610,958 being the difference between the remuneration of a Principal Manager from 5/11/2007 to 31/3/2009 and that of a Senior Manager. The claimant pleaded that he was entitled to 42 working days holidays in a year and he had 108 working days outstanding vacation before he left the defendant’s employment. That he applied for 2007 vacation by annual leave application form dated 2/5/2008 and was given only 15 days. That he discussed his 2008 vacation with his boss (Mrs. Okoye) but his vacation was declined because those that could relieve him were performing other vital duties. That he subsequently applied for two days casual leave by a form dated 3/4/2009 and another one day casual leave through a leave application form dated 8/6/2009. That his boss agreed and admitted that he had an outstanding vacation of 67 days for both 2007 and 2008 by her approval and endorsement of the application dated 8/6/2009. That the 2009 holiday for 42 working days was just due when he was fired leaving a total of 108 working days which is equivalent to 151.2 days or 5.04 months. That his inability to have his full vacation was because the defendant did not allow him to take his leave as and when due while he was serving the defendant. The claimant pleaded that apart from his average monthly remuneration of N1,053,523.00 he also enjoyed the defendant’s payment of N94,701.17 per month as pension making a total remuneration of N1,148,224.17 per month. He therefore claimed the sum of N5,787,049.00 for unutilized vacation of 151.2 days (5.04 months) he was denied and which he could no longer take as a result of the termination of his appointment. The claimant further pleaded that the defendant usually gives a Toyota Corolla car and a big generator to every Principal Manager and the two items constitute what is referred to as fixed expenses in the defendant’s memo of 30/4/2009 to him. The claimant stated that in proof of these rights he will rely on the affidavit dated 12/4/2010 sworn to at the High Court of Lagos by Mr. Jide Omole in Suit No. LD/2013/09 as well as the admission of Mr. Femi Olowoyeye in his affidavit dated 7/4/2010 in the same Suit. That the defendant purportedly deferred his rights to enjoy the said benefits for one year by paragraph two (2) of the defendant’s letter of 30/04/2009 while other Principal Managers of the defendant on the same grade with him enjoyed them. The claimant further stated that he mentioned the inappropriateness of the deferment of his rights to the said Toyota Corolla and 27.5 KVA generator to the defendant’s Managing Director, Mr. Marmoud Alabi in April, 2009 and he promised to review the decision but he never did before he left the defendant’s employment. That it cost the defendant in its books about N121,206.00 per month in providing the said benefits and claims the sum of N3,611,938.00 as loss for the wrongful deferment from 5/11/2007 when he should have been confirmed a Principal Manager to 30/4/2010 when the 7.8 months notice period claimed in paragraph 20 of his claim should have equally expired. In the alternative, the claimant claims the sum of N121,206.00 per month from 5/11/2007 to expiration of the notice period which the court may find adequate. The claimant further pleaded that by its letter dated 4th September, 2009 the defendant terminated his appointment as Principal Manager/Bank Treasurer with only three months basic salary in lieu of notice with effect from 7th September, 2009 without the other allowances. That there is no agreement between him and the defendant on the notice to terminate his appointment as a permanent staff and will contend at the trial that three months are inadequate and unreasonable to terminate his appointment as a confirmed Principal Manager and Treasurer of one of the oldest Financial Institutions in Nigeria. That upon his termination, he searched for another job throughout the world and eventually got one in Uganda, East Africa after being unemployed for 7.8 months. That in the absence of an agreement on the notice to terminate his appointment as a confirmed staff, the 7.8 months he was out of work constitute a reasonable notice in terminating his position as Principal Manager and Treasurer of a public quoted company on the Nigerian Stock Exchange. That based on an average remuneration of N1,148,224.17 per month as calculated in paragraph 13 of the Statement of facts he claims the sum of N8,956,303.00 for the said 7.8 months or in case the court rules that there is a termination clause in the said agreement, he in the alternative claim the sum of N3,444,672.00 being total remuneration for three months notice conceded by the defendant and not three months basic salary paid to him. The claimant pleaded that the defendant breached the agreement with impunity, wrongly and illegally withheld his entitlements. That he claims pre-judgment interest at the rate of 12% per annum from 11/12/2009 and will rely on the rate obtainable in the market in 2009 in proof of the 12% interest claimed through Kakawa Discount House investment note. That the defendant has recalcitrantly refused peaceful moves to amicably resolve this matter through his counsel’s letter of 20/10/2009 to the defendant to which the defendant did not accede to by its letter of 4/11/2009 hence the filing of this Suit. He finally repeated his reliefs. By its Amended Statement of Defence dated and filed on 7th November, 2012 the defendant’s case is that the claimant’s letter of appointment provides that the claimant’s employment is subject to satisfactory probationary period of six months and that the appointment can be terminated by either party subject to an appropriate notice of one month or one month’s salary in lieu of notice. That the claimant is required to signify his acceptance of the offer of employment by endorsing and returning same within one week of the receipt of the letter of offer. That the claimant while endorsing the letter dated 10th November, 2006 accepted the offer of employment and returned same to the defendant bank and that the offer letter is clear, unambiguous and binds both parties in this Suit. The defendant pleaded that contrary to the impression created by the claimant in paragraph 5 of his Amended Statement of Facts, any Senior Manager who heads the Treasury Department of the defendant as at that time is generally known and addressed as the Bank Treasurer and the introduction of the claimant by the defendant bank Group Managing Director/Chief Executive via a memo dated 12th January, 2006 as the bank Treasurer is not a fresh and or additional appointment for the claimant, but it is part and parcel of the initial appointment of the claimant as a Senior Manager. That any qualified and experienced financial officer of the defendant who is a Senior Manager can be posted as a Treasurer and the claimant was once the Senior Manager (Treasury). That contrary to averment in paragraph 6 of the claimant’s Amended Statement of Facts, that it is the defendant as a corporate entity that earned the 1st Order of Merit in the Liquidity Management Course organized by FDHL Training for CBN as a member of the Money Market Dealers and not the claimant as an individual personality. With respect to paragraphs 7 to 11 of the Amended Statement of Facts, the defendant states that it’s right to appoint the claimant as Senior Manager is in accordance with the letter of offer dated 10th November, 2006. That its dealings with respect to remunerations and other salient issues with its employees is always in writing and as such there was never a period when remunerations of any of its employees was increased without formal documents. That there was no such increment as alleged by the claimant as increments by the defendant are always documented and are not arbitrary. The defendant further pleaded that the claimant was promoted as Principal Manager on 30th April, 2009 with effect from 1st April, 2009 as a result of his having successfully completed the required condition for confirmation of appointment and having equally and most importantly earned good performance report in accordance with the letter of offer dated 10th November, 2006. That since the appointment of the claimant as Principal Manager, confirmation is subject to good performance result which the claimant did not earn until April, 2009 the claimant’s appointment was not late and he is not entitled to the remuneration of a Principal Manager. The defendant further pleaded that the claimant is not entitled to any difference in remuneration between the office of the Principal Manager and that of the Senior Manager from 5/11/2007 to 30/3/2009 because he was not a Principal Manager until 1/4/2009. That as between 5/11/2007 and 30/3/2009 the claimant was a Senior Manager and was duly and accordingly remunerated as such and without any unpaid and outstanding remuneration as a Senior Manager that he was between 5/11/2007 to 30/3/2009. The defendant further pleaded that it was clearly stated in the offer of employment letter dated 10th November, 2006 that annual leave cannot be accumulated to the preceding year except if there is a written agreement between the claimant and the defendant and no letter or agreement was written to that effect. That the claimant always filled the numbers of days he intended to take out of his annual leave in his leave application forms which were usually granted and there was no specific agreement and approval of management as to any accumulation of leave and or conversion of leave period to cash. The defendant stated that there was no agreement between it and the claimant or indeed any of its staff to commute and or convert leave periods to cash at all and it is not the defendant’s policy to commute self-unutilized leave to cash under whatsoever circumstances. That like any other staff of the defendant, the claimant’s leave allowance which was agreed upon via a letter of employment is 15% of the claimant’s annual basic salary and same had been paid annually to the claimant while he was in the defendant’s employment. That the claimant is not entitled to any amount for any unutilized vacation/leave in any monetary term whatsoever whether for 108 or 151.2 days or 5.04 months as alleged by the claimant. The defendant pleaded that there was no specific agreement that the claimant’s leave be accumulated and or be commuted to cash, if the leave is unutilized and there was no approval of the management to that effect in accordance with the letter of employment dated 10th November, 2006. That all leave applications that were duly applied for by the claimant via the leave application forms were duly granted and approved for him. That it has the legal rights to suspend or allow fixed expenses component, perks of office of its staff, based on the defendant’s Board of Director’s resolution and absolute discretion. The defendant further pleaded that there was no agreed contract for giving of a Toyota Corolla car and a generator to every Principal Manager. The defendant pleaded that it has an unofficial policy of fixed expenses component perks of office for its staff based on the resolution of the defendant’s Board of Directors at any such given period. That the said Board of Directors on promoting the claimant to Principal Manager in April, 2009 in its prerogative and administrative power formally and officially deferred the fixed expenses component of office for one year. That the decision as to the fixed expenses component/perks of office as well as deferment or otherwise of same was not the sole decision of the defendant’s Managing Director but the defendant’s Board of Directors and it is the said Board of Directors that has the prerogative to give or to defer the fixed expenses components/perks of office. That it is at the discretion of the Board of Directors hence it was not part of the terms of contract between the defendant and the claimant. The defendant went ahead to state that giving of Toyota and generator was not part of the terms and condition in the claimant’s letter of offer of employment and he is not entitled to such benefit in accordance with the defendant’s Board resolution until April, 2010 but unfortunately the claimant’s employment had been duly terminated in September, 2009 before he could be entitled to such benefit. The defendant pleaded that the claimant is not entitled to the payment of any compensation or 7.8 months’ salary in lieu of notice which is contrary to the terms in the letter of employment. That it exercised its powers as contained in the offer of employment and terminated his employment by a letter dated 4th September, 2009. That its relationship with the claimant is governed by common law rules and that it has legal powers to terminate the appointment of the claimant once it complies with the terms in the offer of employment letter. That the agreed period as contained in the letter of employment is one month or payment of one month salary in lieu of notice but it erroneously paid the claimant three months’ salary in lieu of notice. That the agreed period of notice was never subjected to the months or years the claimant would be out of job or not. That it did not breach the contract agreement and no entitlement of the claimant was withheld as can be seen in the breakdown of entitlements in favour of the claimant wherein his net entitlement was credited to his account after deducting his indebtedness to the defendant. That the claimant is not entitled to any judgment in this Suit as well as pre-judgment and or post-judgment award of interest in this matter as alleged by the claimant. By way of counter-claim, the defendant stated that since the claimant is only entitled to one month’s salary in lieu of notice he is expected to refund to the defendant the two months extra salary credited into his account and that this is because three months salary was credited into the claimant’s account. That the defendant is entitled to the sum of N379,182.00 with interest at the rate of 10% per annum from September, 2009 till eventual payment of same to the defendant. The counter claimant seeks the following reliefs: 1. The sum of N379,182.00 representing two months undeserved salaries credited to his account by the defendant. 2. Interest on the N379,182.00 at the rate of 10% from 1st September, 2009 till liquidation of same by the claimant. 3. The cost of defending this action as well as cost of counter-claim. In his Reply to Statement of Defence and Defence to Counter-claim dated 12th October, 2012 the claimant stated that any Senior Manager of defendant can be posted as Treasurer. That the statement of account given to him by the defendant was attached to the defendant’s letter of disengagement dated 4/9/2009 and it showed that the claimant was indebted to the defendant for N14,498.57. He further states that the defendant has prepared the said account and it shows that the claimant now has a credit of N102,336.00 with the defendant. Defending the counter claim the claimant stated that he is not liable to the defendant for the refund of 2 months basic salary or for any amount at all. That the counter claimant’s claim is unsustainable and it is estopped from going back on the part payment made to the claimant after three years the claimant’s employment was terminated. The claimant claims additional sum of N102,336.00 admitted by the defendant and urges the court to dismiss the counter-claim with substantial cost. Trial in this case commenced on 14th November, 2012. Samson Ndubueze Uche, an Accountant and a friend to the claimant testified as CW1 on behalf of the claimant. He adopted his three written statement on oath dated 11/6/2012 filed same date, 27/7/2012 filed same date and 15/10/2012 and filed same date. As stated earlier the claimant was granted leave to file his Amended Statement of Facts in pursuance of which he filed an Amended Statement of Facts dated 25th July, 2012 and filed on 27th July, 2012. The claimant also filed Claimant’s Witness Statement on Oath sworn on 27th July, 2012. Consequently, the Claimant’s Witness Statement on Oath dated 27th July, 2012 has substituted the one filed on 11th June, 2012. This court will consider the claimant’s witness on oath dated 27th July, 2012 and 15th October, 2012 for the purpose of this judgment. The said statements are in all fours with the Claimant’s Amended Statement of Facts and Claimant’s Reply to Statement of Defence and Defence to Counter Claim and need not be repeated. Under cross examination, the CW1 stated that he lives at No. 29 Lawal Street, Jibowu, Yaba, Lagos and started living there on 1st October, 1997. That No. 8 University Road, Yaba is his office address. That in this matter he is the claimant’s friend and that this matter does not affect him directly. That the evidence he deposed to is what his friend told him. That there is no Power of Attorney given to him by the claimant and that he is not in any way privy to the contract of employment between the claimant and the defendant. There was no re-examination. That claimant thereafter closed his case. Oyebusola Olanubi a Deputy Manager in the Human Capital Management Department of the defendant but currently the Head Employee Relations and Benefits testified as DW1 on behalf of the defendant. She adopted her Witness Statement on Oath dated 7/11/2012 as well as documents attached thereto. The said statement is in the same terms as the Amended Statement of Defence and will not be repeated. Under cross examination, the DW1 stated that he is in charge of benefits for all staff of the defendant. That the position of the Treasurer was not elevated to the position of AGM. That he is not aware that the claimant attracted a deposit of N14.5 Billion to the defendant during the period of his probation. He stated that it is true that when the claimant was confirmed on Senior Manager grade he wrote to the defendant bank but the bank replied that the claimant was successful during the probationary period. That the claimant applied for 30 days leave but the defendant bank granted him 15 days in May because he still has the remaining part of the year to utilize the remaining leave. That the claimant did not earn all the 30 days he was entitled to as at May. That the claimant is not owed 67 days accumulated leave for 2007 and 2008. That as at the time the claimant’s employment was terminated in September he would only have earned 8 months leave for that year. He stated that the claimant joined the defendant in November, 2007. That the claimant was not paid the prorated leave for the 8 months in 2009. That the defendant does not accumulate leave days and that at the time the claimant was sacked these terms were not in the defendant’s website. That it is the Human Resources Department that will prepare the papers. That the defendant did not do it for the claimant because accumulation of leave is not by right. The DW1 stated further that he is aware the claimant’s benefits in kind upon his promotion to the rank of Principal Manager were deferred and the deferred benefits are a Toyota Corolla car and a generator. During re-examination, the DW1 stated that the claimant never asked for accumulation of leave. The defendant closed its case on that note. The parties were ordered to file their Final Written Addresses. The Defendant’s Final Written Address is dated 23/1/2013 but filed on 25th January, 2013. It also filed a Reply on Points of Law on 27th February, 2013. The claimant’s Final Written Address is dated 18th February, 2013 and filed on 20th February, 2013. The defendant’s counsel formulated four issues for determination by this court as follows:- 1. Whether there is any evidence in support of the claimant’s claim in this Suit by the claimant. 2. Whether the claimant’s appointment with the defendant was properly terminated in accordance with the provisions of the condition of employment as per the defendant’s offer of employment letter dated 10th November, 2006. 3. Whether in the circumstances of this case, the claimant is entitled to the reliefs/claims stated on his Statement of Facts. 4. Whether the defendant/Counter-claimant is entitled to his counter-claim. Arguing issue one, Learned Counsel to the defendant submitted that the claimant in the instant case has no shred of evidence in support of his claims or pleadings, therefore his claim cannot stand. He submitted that though the claimant personally deposed to Statement on Oath which could have been taken as his evidence in support of his case but did not show up in court at all to adopt the said Statement on Oath as his evidence in the matter. He further submitted that a mere filing of a Statement on Oath does not make the Statement on Oath an evidence in support of the case of the concerned party unless such Statement on Oath is properly adopted by the party as the evidence in support of his case. He submitted that this court cannot rely on the documents attached to the claimant’s processes as such documents have not been properly tendered by the claimant before the court in support of the claimant’s case. He submitted that if the rules of evidence relating to the manner of adducing evidence as well as tendering evidence is allowed to be departed from by the court, then all manner of oral and documentary evidence which are pure lies can be fabricated and brought before the court in support of a party’s case. In his further submission, Learned Counsel argued that CW1’s testimony who is a friend to the claimant is a hearsay evidence and cannot be relied upon by this court. That the position of the law is that hearsay evidence as in the circumstances of this case is inadmissible, citing the case of Ojo v. Gharoro [2006] 2 – 3 SC p. 113, Engr. Kwale v. State [2003] FWLR (pt. 159) p. 1504, Chima Ijiofor v. The State [2001] FWLR (pt. 49) p. 1457, Friday Ekpo v. State [2001] FWLR (pt. 55) p. 454. On the effect of failure to lead evidence by the claimant, the Learned Counsel referred the court to the case of Owners of Gongola Hope & Anor v. Smurfit Case Nig. Ltd & Anor [2007] 6 SC (pt. 11) p. 58, Ogunyade v. Oshinkeye & Anor [2007] 7 SC (pt. 11) p. 60. He submitted that a mere pleading in the court file without leading any evidence in support thereof cannot by any shred of imagination take the place of leading evidence in support of such pleadings. That since the parties in the instant case did not consent or elect that this court should solely rely on the processes filed in this matter without leading evidence the court cannot depart from the position of the law mandating a party to lead evidence in support of his case. He therefore urged the court to hold that there is no evidence before the court in support of the claimant’s claim in this Suit, therefore, the claimant is not entitled to judgment and this Suit is liable to be dismissed in its entirety. Learned Counsel submitted that Order 19 Rule 9 (i) and (ii) and Rule 12 of the Rules of this court makes it mandatory for documentary evidence to be put in at the trial. He cited the case of Ndukanba v. Kolomo [2005] 4 NWLR (pt. 915) p. 411 to support the argument that the requirement of the rule of fair hearing is that a party must be given the opportunity to cross-examine the evidence of his adversary. He submitted that the hearsay evidence of Mr. Uche is inadmissible and there is no evidence before the court in support of the claimant’s case. That a party is deemed to have abandoned facts alleged in a pleading on which no evidence is led, citing the case of N.A.S Ltd v. UBA Plc [2005] 14 NWLR (pt. 945) p. 416, WAEC v. Oshionebo [2006] 12 NWLR (pt. 994) p. 258. Arguing issue two, Learned Counsel submitted that the relationship between the claimant and the defendant in this case is a master and servant one anchored on terms of employment dated 10th November, 2006. That though the offer of employment provided for one month’s notice to be given by either party to determine the contract, the claimant was paid three months salary in lieu of notice, therefore the said contract was properly determined by the defendant in line with the terms in the offer of employment letter. He submitted further that parties to an agreement are bound by the terms of the contract they signed, citing the case of Isheno v. Julius Berger Nigeria Plc [2008] 2 – 3 SC (pt. 11) p. 78. He submitted that written contract are construed on the terms of employment, citing the case of Texaco Plc v. Kehinde [2002] FWLR (pt. 94) p. 143, Opuo v. NNPC & Anor [2002] FWLR (pt. 84) p. 11. He submitted further that the right to terminate a contract is either provided for in the contract or read into it if omitted, citing the case of Ladipo v. Chevron Nigeria Ltd [2005] All FWLR (pt. 260) p. 133, Shell Petroleum Co. Ltd v. Ifeta [2001] FWLR (pt. 80) p. 1614. He finally submitted that in this case the terms and conditions of contract between the claimant and the defendant as spelt out in the letter of employment is clear and unambiguous in relation to termination, therefore the termination and payment made thereon is valid and he urged the court to so hold. On issue three, Learned Counsel submitted that from the circumstances of this case the claimant’s claims are exercise in gold digging as no material was led by the claimant in support of his claim. He submitted further that assuming that the claimant led evidence in support of his case, the defendant still submits that a close perusal of the reliefs sought by the claimant showed patently that they are reliefs that cannot be granted without the agreement between the parties as contained in the letter of offer dated 10th November, 2006. He cited the case of CBN v. Igwillo [2007] 4 – 5 SC p. 191, Chief S.A. Okubule & Ors v. Mr. Thomas A. Oyagbola & Ors [1990] 4 NWLR (pt. 147) p. 723, Union Bank of Nigeria Ltd v. Professor Albert Ojo Ozigi [1994] 3 NWLR (pt. 192) p. 388, Section 128 and 129 of Evidence Act, 2011. He submitted that no matter how compassionate a court is, it has no obligation to re-write an agreement for parties and urged the court to so hold, citing the case of African Reinsurance Corporation v. Fanfare [1980] 1 NWLR (pt. 14) p. 13. On claimant’s relief one, Learned Counsel submitted that those reliefs can only be granted where there is formal agreement between the claimant and the defendant. He submitted that a mere promotion of a staff from one position to another in the absence of an agreed terms for change in remuneration to a particular employee in the same position with another employee cannot be a yardstick for payment of entitlement in an organization. On claimant’s relief two, Learned Counsel submitted that the provision relating to annual leave in the letter of employment dated 10th November, 2006 is very explicit to the effect that annual leave cannot be accumulated to the preceding year except if there is a written agreement between the parties and in this case there is no specific agreement and approval of management as to any accumulation of leave or conversion of leave period to cash. He submitted further that it is not the policy of the defendant to commute or convert leave period to cash at all as well as it is not the policy of the defendant to commute self unutilized leave to cash. He submitted that under the contract of employment the claimant’s leave allowance is 15% of his annual leave and same had been paid annually to him, therefore, the claimant is not entitled to any amount for any unutilized vacation or leave in any monetary term whether for 108 days or 151.2 days or 5.04 months. On the claimant’s relief three, Learned Counsel submitted that there was no agreed contract for the giving of Toyota Corolla car and a generator to every Principal Manager, though the defendant has an unofficial policy of fixed expenses component, perks of office for its staff. That in promoting the claimant to the post of Principal Manager the defendant Board of Director formally deferred the fixed expenses for one year. He submitted that the giving of Toyota and generator is a privilege as the claimant cannot compel the defendant to grant him such entitlement under compulsion since it is not a right. On the claimant’s relief four, Learned Counsel submitted that the claimant is not entitled to the payment of any compensation or 7.8 months’ salary in lieu of notice as the relief is contrary to the spirit and intent of the letter of employment. He submitted that the agreed notice period as per letter of employment is one month only and accordingly the claimant is not entitled to his 4th claim. On the claimant’s fifth claim, counsel submitted that the claimant is not entitled to any judgment; prejudgment or post judgment interest. Arguing issue four, Learned Counsel to the defendant submitted that the counter claimant is legally entitled to all its reliefs since the defendant to counter claim is only entitled to one month salary in lieu of notice as contained in the letter of employment and does not deserve the sum of N379,182.00 representing two months unmerited salary credited to his account by the defendant counter-claimant. He further submitted that the interest on the said sum claimed by the counter claimant is justified, citing the case of Omega Bank (Nig) Plc v. OBC Ltd [2002] 16 NWLR (pt. 794) p. 483. He finally urged the court to dismiss the claims of the claimant in its entirety and grant the counter claim. The Learned Counsel for the claimant submitted that the rules of this court under Order 3 Rule 4 of NIC Rules has made the use of affidavit mandatory and that Section 107 to 120 of Evidence Act govern affidavits. He submitted that the claimant’s witness Mr. Uche stated that he got his information from the claimant at Festac Town Lagos in the evening of 9/9/2009 and the said affidavit was made before authorized person, therefore lawfully before the court and were rightly admitted. Learned Counsel cited Law and Practice of Evidence in Nigeria, p. 231 edited by Afe Babalola, Busari v. Oseni [1992] 4 NWLR (pt. 237) p. 557. He also referred the court to Section 37 of Evidence Act on the meaning of hearsay and submitted that Mr. Uche cannot be said to give hearsay evidence. He further submitted that any affidavit sworn outside the country is admissible, citing Section 110 of Evidence Act and Law of Evidence in Nigeria, 2006 at pg. 378 by S.T. Hon (SAN). He submitted that once a foreign affidavit is sworn before a proper person, it becomes automatically admissible. He also cited the case of Bojwani v. Bojwani [1995] 7 NWLR (pt. 407) p. 349. Learned Counsel therefore urged the court to apply Section 110 of Evidence Act and Section 12 of the Oaths Act and hold that the evidence of claimant is properly before the court notwithstanding that he was not before the court to adopt his testimony. The claimant’s counsel formulated issue on the non-appointment of the claimant as Principal Manager as: “Whether the claimant satisfied the condition precedent of good performance during probation and if so, whether the defendant’s failure to appoint him a Principal Manager upon confirmation in November, 2007 is a breach of contract”. To argue the issue, Learned Counsel referred to the case of Tsokwa Oil Marketing Co. Nig Ltd v. Bank of the North Ltd [2002] 1 NWLR (pt. 777) p. 163 to submit that where a contract is made subject to fulfillment of certain specified terms the contract is not binding unless those terms are complied with. He submitted that the claimant performed his work diligently without any query and the defendant confirmed his appointment in a memo dated 7/11/2007 as a Senior Manager instead of Principal Manager on confirmation. He submitted that in interpreting documents the courts adopt ordinary, literal and dictionary meanings, citing the case of Union Bank Plc [1994] NWLR (pt. 131) p. 384, Imonikhe v. Unity Bank Plc [2011] 12 NWLR 624, Daodu v.UBA Plc [2004] 9 NWLR (pt. 878) p. 276. Learned Counsel argued that the defendant admitted that the claimant had a good performance during his probation and submitted that admitted fact need no proof under Section 123 of Evidence Act and that the defendant breached the agreement by appointing him a Principal Manager in April, 2009 instead of November, 2007 a period of 512 day. He therefore urged the court to grant the claimant’s relief of the sum of N5,610,958.00. On compensation for Unutilized Vacation, Learned Counsel for the claimant raised the issue: “Whether the claimant is entitled to be paid for the unutilized 108 working days (5.04 months) vacation when it was the defendant that did not allow the claimant to utilize the 68 days leave for 2007 and 2008 and when the 2009 vacation was not in arrears”. Learned Counsel submitted that the claimant’s evidence that he was not allowed to go on leave was not disputed by the defendant and a fact which is not denied is admitted. He further argued that looking at exhibit 10, it shows that there was an application for one day casual leave and 68 days were outstanding and that the endorsement made by the defendant’s Executive Director Mrs. Okoye constitutes both the agreement as well as the approval. That the defendant cannot rely on its default to allow the claimant to go on vacation, citing the case of Teriba v. Adeyemo [2010] 11 NWLR (pt. 1211) p. 242 at p. 263, Chitty on Contracts Vol. 1 [2008] p. 857 to 858 and Industrial Labour Standards Convention No. 132 on Annual Holidays with Pay, 1970. He submitted that claimant having been terminated should be paid for the 504 months he was not able to take while he was with the defendant. Learned Counsel also referred the court to Section 13 and 17 (2) (d) and 17 (3) (d) of 1999 Constitution on fundamental objectives and directive principle of State Policy. He also referred to a book “Law Relating to Leave Holidays and Absenteeism in Industries, 9th Edition, 2010, India by H.L. Kumar” and Article 24 the United Nations Universal Declaration on Human Rights. He urged the court to reject the submission of the defendant’s counsel on paragraphs 8.10 to 8.12 of his address. On the inadequacy of notice of termination, Learned Counsel formulated the issue: “Whether the one month determination clause in the probationary employment applies to terminate the claimant’s appointment as a confirmed or permanent staff, and if it is not, then what is the adequate notice to terminate his position as Treasurer/Principal Manager after confirmation”. Learned Counsel submitted that in the interpretation of documents they should be given their simple ordinary meanings citing the cases of Lawal v. G.B. Ollivant [1972] 3 SC 124, Toriola v. Williams [1982] 7 SC 47, AYU v. Henshaw [1972] 5 SC 87. He submitted that the termination clause of one month in letter of employment does not extend to the permanent employment, and that the court should take judicial notice under Section 123 of Evidence Act that termination clause for confirmed staff are either in the confirmation letter or the staff handbook. He urged the court to presume under Section 167 of Evidence Act that the defendant has no termination clause in its handbook which was not produced before the court and that the three months notice given to the claimant is unilateral and on the whims and caprices of the defendant as there is no agreement between the parties on the notice to terminate the permanent employment. Learned Counsel relied on the case of Imoloame v. WAEC [1992] 9 NWLR (0t. 265) p. 303 to buttress the point that where a contract does not provide for notice required for termination, there is an implied term that it can only be determined by reasonable notice which depends on the nature of the contract, status of the employee in the establishment. He submitted that the claimant’s position of the Treasurer/Principal is a Senior Management and he deserves to be given a notice that equals his position which is 7.8 months which is the period the claimant was unemployed as reasonable notice to terminate his appointment. On the defendant’s counter claim, Learned Counsel submitted that the counter claim has no basis as the defendant admitted that the one month notice is in respect of the probationary period. On the suspension of the claimant’s perks, Learned Counsel formulated issue thus: “Whether the defendant can validly defer or suspend the claimant’s benefits in kind for one year or for any period at all.” To this he submitted that an employer has a duty to pay the remuneration of its employees citing the case of Imoloame v. West Africa Examination Council (Supra). Counsel submitted that the suspension of the benefits in kind of the claimant is tantamount to refusal to pay his remuneration and urged the court to hold that the defendant has breached its duty to pay the remuneration of the claimant and the purported suspension be declared a nullity. He further submitted that the suspension of the claimant’s right to Toyota Corolla and generator when he was appointed a Principal Manager violated his right to equal pay for equal work as guaranteed by Article 15 of African Charter on Human Right and provisions CAMA and NDIC Acts. On the pre-judgment interest, Learned Counsel pointed out that he intended to withdraw the claimant’s claim for prejudgment interest and would not proffer argument on it. However, he urged the court to award post-judgment interest at the rate of 10% in accordance with Order 21 Rule 4 of the rules of this court. In his Reply on Points of Law, the defendant devoted his time re-arguing most of his earlier argument. Therefore, I will dwell on those arguments which are not re-argument. On the argument of the claimant’s counsel that affidavit sworn in foreign country can be used in Nigeria Learned Counsel submitted that such deposition must necessarily be adopted by the deponent or the maker before the trial Judge and such maker who is indeed a witness would have to be cross-examined relying on the case of Bakado Line Ltd v. Chief S.B. Bakare [1969] 1 All NLR 1 77 at p. 79. The rest of the defendant’s argument on reply on points of law are re-argument and are hereby jettisoned for the purpose of this judgment. I have carefully considered the processes filed in this matter, the submissions of counsel to both parties and the authorities relied upon. In my view, the issues for determination are: 1. Whether the evidence of the claimant as it is presently constituted can support the reliefs herein. 2. Whether the defendant/counter-claimant is entitled to his counter-claim. The relationship between the claimant and the defendant in this Suit is clearly that of master and servant regulated by the letter of employment dated 10th November, 2006. In support of his case, the claimant initially filed a General Form of Complaint, Statement of Facts, Claimant’s Witness Statement on Oath deposed to by one Mr. S.N. Uche on 11th June, 2012 and a List of Documents to be relied upon at trial. The claimant further filed a Witness Statement on Oath bearing his name deposed to before one Ellis Robins Kasolo, a Notary Public in Kampala, Uganda. On the 17th October, 2012, the claimant was granted leave to file an Amended Statement of Facts and deposition of witness in pursuance of which the claimant filed an Amended Statement of Facts dated 25th July, 2012, Claimant’s Witness Statement on Oath of Mr. S.N. Uche deposed to on 27th July, 2012. When trial commenced on 14th November, 2012 the CW1 Mr. Samson Ndubueze Uche testified on behalf of the claimant and adopted his three Witness Statement on Oath dated 11th June, 2012 filed on same date, 27th July, 2012 filed same date and 15th October, 2012 and filed same date. The position of the law is that where pleadings are amended, what stood before the amendment is no longer material in determining the issue before the parties. See Ilodibia v. N.C.C Ltd [1997] 7 NWLR (pt. 511) p. 174 at p. 197. In the case of Ijade v. Ogunyemi [1996] 9 NWLR (pt. 470) p. 17 at p. 31 para E, the court held that, “in the present case, the respondent ought not to have referred to the original statement of defence of the appellants as it was superseded by the amended statement of defence filed by the appellants”. In view of the above authority, the claimant’s witness statement on oath filed on 11th of June, 2012 which was adopted by the CW1 is hereby discountenanced for the purpose of this judgment as the said statement is superseded by the witness statement on oath filed on 27th July, 2012 in pursuance of order of this court granting leave to the claimant to amend his originating processes. The CW1 – S.N. Uche who deposed to the claimant’s witness statement on oath filed on 27th July, 2012 stated in paragraph 1 that: “The claimant in this Suit is my friend and he fully briefed me in his house at Festac, Lagos in the evening of 9th September, 2009 of the termination of his appointment with the defendant. He also explained the circumstances leading to his termination and he showed me all the documents relating to this matter”. The CW1 went ahead to depose the facts of the claimant’s employment with the defendant. It is important to note that the claimant himself was not present throughout the proceedings in this case neither did he appear as a witness. During cross-examination, the CW1 admitted that he is a friend to the claimant and that this matter does not affect him personally. He further told the court that the evidence he deposed to is what his friend i.e. the claimant told him and that there is no Power of Attorney given to him by the claimant. It follows, that the CW1 herein testified to the facts as related to him by the claimant. The primary purpose of the rule against hearsay evidence is to secure the right to fair-hearing. The defendant is entitled in the circumstances of this case to cross-examine the claimant who related all the facts deposed by CW1. The court held in the case of J.A.M.B v. Nkeimka (No.2) [2007] All FWLR (pt. 381) p. 1763 at p. 1777 that: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said …” See also Kala v. Potiskum [1998] 3 NWLR (pt. 540) p. 1 at pp 15 – 16. In the instant case, the evidence of Mr. S.N. Uche as contained in his statement of witness on oath was utter hearsay as Mr. Darnley Anifowoshe who related the information to him was not called to testify nor to be cross-examined. There is no doubt that the CW1 testified in order to establish the truth of what is contained in the statement on oath. His evidence is therefore hearsay. Consequently, the evidence of the CW1 being inadmissible evidence is hereby expunged. That being the case, there is no evidence to establish the claimant’s case before this court. The effect of this is that the claimant has failed to prove his claim against the defendant, I so find and hold. Concerning the defendant’s counter-claim, the defendant counter claimant claims the sum of N379,182.00 (Three Hundred and Seventy Nine Thousand, One Hundred and Eighty Two Naira) which it alleged represents two (2) months extra salary credited to the claimant when the claimant is only entitled to one month’s salary in lieu of notice. The defendant/counter claimant on its own accord paid the claimant three months basic salary in lieu of notice and did not at any time material to this Suit demand the refund of the two months basic salary from the claimant but only chose to do so at the instance of this Suit. It therefore leads this court to conclude that such claim is an afterthought and cannot be granted by this court. The defendant’s counter claim therefore fails. In view of the reasons given above, this Suit is hereby dismissed in its entirety. The counter claim is equally dismissed. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge