Download PDF
By a complaint and its accompanying statement of facts, both dated and filed on 4th May 2012, the claimant is praying against the defendant for the following reliefs – 1. A declaration that he was entitled to a minimum retirement notice of not less than one year, with full remuneration and other employee entitlements befitting his status as a Director and that the service by the defendant of a duration of notice of less than three months as contained in its letter dated the 20th of January 2009 and the attendant payment of barely three months remuneration for the 2009 service year is a breach of the relevant provisions of the defendant’s Employee Handbook which clearly defines not only the obligations but also benefits and/or entitlements of its every employee. 2. The total sum of $86,100.00 (Eighty-Six Thousand, One Hundred United States Dollars) only representing accrued, outstanding but yet unpaid International Out-Station Allowances (IOSA) for a cumulative period of 287 days in 2008, at the official rate of $300 Dollar per day, while on international posting by the defendant as the Managing Director of its Ghanaian subsidiary, IGI Ghana Limited. 3. The total sum of N15,807,500.00 (Fifteen Million, Eight Hundred and Seven Thousand, Five Hundred Naira only) being accrued, outstanding but yet unpaid balance of his remunerations, allowances and/or entitlements, in line with his remuneration and benefits package as a Director in the defendant for the service years 2008 and 2009. The particulars of special damages are – A. Outstanding Estacode for 287 days at the rate of $300 US Dollars per day, totalling $86,100.00 USD. B. Outstanding and unpaid benefits in kind/monetization for the service year 2008 as follows: i) Unpaid G. maint/vehicle maint/DSTV maint - N1,052,000.00 ii) Unpaid driver - N 450,000.00 iii) Unpaid passage - N 480,000.00 iv) Unpaid generator - N 600,000.00 Total = N2,582.000.00 C. Outstanding and unpaid benefits in kind/monetisation for the remainder of the 2009 service year, as follows: i) Unpaid base income for 9 months in 2009 - N2,310,000.00 ii) Unpaid leave allowance for 2009 - N 280,000.00 iii) Other unpaid allowances for 9 months in 2009 - N7,213,500.00 iv) Unpaid G maint/vehicle maint/DSTV maint - N1,052,000.00 v) Unpaid allowance for driver for 2009 - N 450,000.00 vi) Unpaid club membership for 2009 - N 275,000.00 vii) Unpaid Medical Expenses for 2009 - N 500,000.00 viii) Unpaid passage allowance for 2009 - N 480,000.00 ix) Unpaid phone allowance for 2009 - N 65,000.00 x) Unpaid generator allowance for 2009 - N 600,000.00 TOTAL = N13,225,500.00 GRAND TOTAL = N15,807,500.00 4. General damages of N3,000,000.00 (Three Million Naira) only for breach of the contract of employment between the claimant and the defendant. 5. Interest at the prevailing Nigerian commercial bank’s lending rate of not less than 22% per annum on any sum the Court may adjudge the defendant liable from November 2008 for claim No. 2 and from 30th April 2009 for the remainder of the claims, until judgment and 10% per annum on any such judgment sums until liquidated. 6. The cost of this action assessed at N3,000,000.00 (Three Million Naira) only. Accompanying the complaint and the statement of facts are the list of witnesses, statement on oath of the claimant, list of documentary evidence and copies of the documents. The defendant entered formal appearance and then filed its statement of defence, list of witness, written statement on oath of the defence witness, list of documents to be relied upon at the trial and copies of the documents. The defendant’s statement of defence was later amended and by order of the Court made on 14th May 2013 both the old statement of defence and its accompanying witness statement on oath were withdrawn and struck out, and substituted with an amended statement on oath and witness statement on oath of the defence witness on record respectively. The claimant reacted to the defendant’s defence processes by filing a reply to the statement of defence, an additional statement on oath of the claimant, additional list of documentary evidence and copies of the documents. At the trial, both parties called a witness each. The claimant testified on his own behalf as CW, while Sam Iloabuchi, a Manager in the Legal department of the defendant company, testified for the defendant as DW. At the conclusion of trial, parties were asked to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) 2007. This they did. The defendant’s written address is dated and filed on 26th September 2013, while that of the claimant is dated and filed on 15th January 2014. The defendant’s reply on points of law is dated and filed on 18th February 2014. The case of the claimant is that in 1997 he was employed as a Senior Manager by the defendant. After a meritorious 10 years of service, he was in 2007 elevated to the position of a Director with a total annual remuneration package of N18,000,000.00 (Eighteen Million Naira) only. While more than 60% of the said annual remuneration represents cash payments to the claimant, the remainder constitutes payments in kind that is monetized to a fixed cash value. In further acknowledgement of his contribution to the success story of the defendant, the claimant was in 2008 nominated and appointed the pioneer Managing Director of IGI Ghana Limited, an international subsidiary of the defendant. In spite of the said international posting, at the material time of 2008, he remained an employee of the defendant in terms of settlement of his remunerations above and the other terms and conditions of his employment as stipulated in the defendant’s Employee Handbook. Accordingly, his salaries and other entitlements were still paid from Nigeria by the defendant. He served at Ghana for a cumulative period of 11 months that began in January 2008 and terminated in November 2008 when he was officially recalled to Nigeria. The claimant continued that by the unambiguous provision of the said defendant’s Employee Handbook, while on the said international posting, he was beside his package of remuneration above, entitled to out of station allowance (estacode) which was meant to address the officially acknowledged general inconveniences ordinarily associated with such transfers and permanent relocation to another country. For the first one month of his stay at Ghana, the defendant approved and paid him an out of station allowance of $300 per night. He subsequently moved into the defendant’s guest house where he stayed for the remainder of 10 months, totalling 287 days. That his relocation to the defendant’s said guest house did not in any way operate to disentitle him to the agreed out of station allowances. The provision of accommodation was only an aspect of the inconveniences the said allowance was aimed at addressing. He put a monetary value of only $40 US Dollars on the accommodation of the standard availed him at the said guest house. For the period in issue, he was solely responsible for his own upkeep in Ghana, as the defendant failed to pay any out of station allowance to him from February 2008 till he departed Ghana in November 2008. He conceded that the provision of bare accommodation would have only resulted in justifiable diminution in the amount of out of station allowance payable to him and certainly not a complete disentitlement to the same. While in Ghana, that he made several appeals to the defendant to settle the said due allowances or even pay a part of it to enable him and his colleagues to cope with the rather daunting challenges of living thereat. All the promises that the defendant made to settle the said allowance were only kept in the breach. Even after his forced exit from the defendant’s service, he also made several demands for the payment of the said accrued entitlements, all to no avail. That the payment of out of station allowances to him was a right and not a privilege to be dispensed at the discretion of the defendant and/or its Executive Vice Chairman. Beside the defendant’s refusal to settle the said accrued allowances, for the 2008 service year, out of the claimant’s total remuneration package of N18,000,000.00, the defendant only paid him the sum of N15,418,000.00, leaving a balance of N2,582,000.00 only. Whether he was in Nigeria or outside Nigeria, the defendant was bound to pay him the above sum, whether in cash or otherwise, for every year of service. The defendant would have only avoided responsibility for the settlement of the said unpaid part of his remuneration, if it can show that it provided the said unpaid heads of entitlements in Ghana. That his right to be paid any part of his said total package of remuneration is not in any way locational or conditioned on his being in Nigeria at the material time. Following the claimant’s recall to Nigeria in November 2008, by a letter dated the 20th of January 2009, the defendant formally notified him of its decision to retire him. He was given a three months’ notice that lapsed on 21st April 2009. By the said retirement notice, he was further informed that his severance benefits were being computed and would be made available to him at a later date. By the defendant’s Employee Handbook, rather than a meagre three months’ notice, as it was the defendant that elected to retire him, he was entitled to a minimum of one year’s notice or payment of a year’s total remuneration package, in lieu of notice. It was the tradition and/or policy of the defendant to either give the appropriate one year notice or pay one year complete remuneration package in lieu of notice. The claimant went on that by a protest letter dated 16th February 2009, he protested strongly not only on the shorter notice of retirement given to him but also the non-payment of his accrued and outstanding out of station allowances and the remainder of his remuneration package for 2008 service year. He demanded that the defendant redresses the obvious breaches. In furtherance of the letter of retirement above, on 29th April 2009 and 6th May 2009 respectively, by two instalments, the defendant offered the claimant what it considered to be his severance benefits and the claimant accepted same. The computation of the said severance entitlements including an ex-gratia award was predicated on the said defendant’s Employee Handbook. That the acceptance of the computed and offered severance benefits did not amount to a compromise on his earlier protest and/or a waiver of his right to challenge the irregular circumstances of his disengagement from the defendant’s employment and the concomitant breaches of the parties’ agreement. The claimant concluded that he did not work for the entire service year of 2009. He blamed that apparent inability on his forced retirement from service. That as the defendant had determined his employment on 21st April 2009 he could not on his own have continued to report for work at its office. In short, he could not have imposed himself on an unwilling master, the defendant. The case of the defendant is made of the following assertions – 1. The claimant was not appointed as Managing Director of the defendant’s Ghanaian subsidiary until his nomination on 13th March 2008. 2. By the claimant’s letter of promotion dated November 30, 2007 the claimant’s remuneration and benefits package expressly stipulated the claimant’s cash income as totalling N12,978,000.00 whilst the balance of the remuneration totalling N5,022,000.00 was in the form of non-cash benefits-in-kind to be provided by the company. 3. The claimant was not in respect of his secondment to Ghana entitled to a daily estacode of out of station posting allowance of $300.00 per day for the eleven (11) months duration of the posting. 4. Following the claimant’s secondment or posting to Ghana in January 2008, the defendant approved estacode for him for fourteen (14) days from 7th January 2008 to 20th January 2008 at the rate of $300.00 per day. 5. The said estacode was approved for the claimant because at the time, no arrangements had been made for his accommodation and upkeep and he was, therefore, obliged to arrange his own hotel accommodation, feeding and transportation in Ghana. 6. The said estacode was extended for another nine (9) days to 29th January 2008, and thereafter the claimant moved into the defendant’s guesthouse in Ghana on 30th January 2008. 7. From the 30th of January 2008 till the end of his stay in Ghana, the claimant was accommodated in the defendant’s catered guesthouse in Ghana and provided with company transportation. 8. By virtue of the claimant’s occupation of the defendant’s catered guesthouse and the provision of company transportation, the claimant was from 30th January 2008 no longer entitled as of right to the approved estacode of $300.00 per day. 9. The fact was well known to and accepted by the claimant as evidenced by his memo dated 4th February 2008 to the defendant’s DMD (Operations) in which he confirmed that he would ‘In line with the EVC’s instruction, now wait for the arrangement for (his) upkeep from the day (he moved) into the Guesthouse’. 10. Since the claimant was on secondment or posting to Ghana his remuneration as a Director of the defendant was still being paid from Nigeria. 11. The claimant’s total remuneration composed of a total cash component and a benefit in kind component with an assessed cash value. 12. In line with standard practice, whilst portions of the cash component were paid annually and or monthly, the benefits in kind were generally provided by the defendant and or by direct payment to the third party providers. 13. As part of his benefits in kind the claimant was entitled to a medical expense limit of N500,000.00. That the claimant averred further that the medical allowance is a limit and is not a cash sum paid out to the claimant. 14. Some of the non-cash benefits-in-kind components of the claimant’s remuneration are locational in nature and tied to his being in-country and in a position to utilize and enjoy the same. 15. The defendant’s letter dated 20th January 2009 was a confirmation of prior discussions between the claimant and the defendant’s Director of Human Resource and Admin. 16. In the course of the said discussions the claimant had indicated his desire to retire from the defendant’s services upon attainment of the company’s statutory retirement age, and the said letter was merely a written confirmation of the prior discussions and understanding. 17. In line with the prior discussions and understanding, the said letter confirmed that the claimant did not need to serve the notice period – based on an evinced desire to proceed on retirement leave. 18. The claimant is only entitled to one (1) year remuneration package as terminal remuneration where he worked for a full one (1) year period of retirement notice. 19. The claimant did not work for a full one (1) year period of retirement notice with effect from the 20th of January, 2009 and so is not entitled to one (1) year remuneration package for 2009 in the sum of N18,000,000.00. 20. The claimant did not serve out the three (3) months’ notice period but was paid his remuneration in full for the three (3) months period. 21. The claimant’s net entitlement when computed was in the sum of N4,594,347.30. 22. The claimant’s final entitlement included an ex-gratia award of N5,600,000.00. The sum of N4,594,347.30 computed as his net entitlement was arrived at after deducting the claimant’s outstanding mortgage loan from his entitlements and ex-¬gratia award of N5,600,000.00. 23. After the computation of the claimant’s final entitlement, the management of the defendant magnanimously approved an additional ex-gratia payment of N2,000,000.00 (Two Million Naira) only in appreciation of the claimant’s meritorious service with the defendant. 24. On 29th April 2009, the claimant received a cheque from the defendant for the sum of N1,250,000.00, being part of the N2,000,000.00 approved by the management as additional ex-gratia payment. 25. On 6th May 2009, the claimant received from the defendant a letter dated May 6, 2009 conveying the amount of his final entitlement upon separation and a cheque for the sum of N5,344,347.30. 26. The said sum of N5,344,347.30 comprised of the claimant’s net final entitlement of N4,594,347.00 and the sum of N750,000.00 being the balance of the N2,000,000.00 additional ex-gratia payment approved by the management of the defendant out of which the sum of N1,250,000.00 had already been paid to the claimant. 27. The claimant on 6th May 2009, accepted the computation of his net terminal entitlement and accepted the cheque for the sum of N5,344,347.30 as his final entitlement upon separation from the defendant’s service and in full and final satisfaction of the claims of the claimant as contained in his letter dated 16th February 2009. The defendant framed three issues for the determination of the Court, namely – 1. Whether the claimant having unconditionally collected, accepted and cashed the sums of N1,250,000.00 and N5,344,347.30 on 29th April 2009 and 6th May 2009 respectively as his full and final entitlement upon separation from the defendant, is entitled to turn around and claim for outstanding and unpaid allowances and wrongful termination of contract of employment. 2. Whether the claimant has proved that there was a breach of contract of employment as to entitle him to damages. 3. Whether the claimant has proved that he is entitled to special damages. Regarding issue 1, the defendant contended that in a claim for monetary compensation by an employee whose employment has been terminated, the employee must show that what he is entitled to has been agreed upon between him and his employer. In other words, the conditions and terms contained in the contract of employment must be interpreted to reflect the intentions of the parties. It is the defendant’s submission that in a contract of service when the employer reserves the right to terminate the contract of employment by giving notice to the employee or by paying him salary in lieu of notice and this right if exercised without any protest by the employee such termination will be deemed mutual, referring to Nitel v. Ikaro [1994] 1 NWLR (Pt. 320) 350 CA at 363 G – H and Moronfolu v. Kwara State College of Technology [1990] 4 NWLR (Pt. 145) 506 at 528. That in Severinsen v. EMTS Ltd [2012] 27 NLLR (Pt. 78) 374 NIC, on the issue of an employee who signs a release and discharge certificate without protest, this Court held that – Where an employee whose employment has been terminated signs the release and discharge certificate under protest indicating he had reservation as to the contents of the said release and discharge certificate, he cannot be held to have waived his right to accrued rights, in the instant case, right to performance bonus. In Severinsen v. EMTS Ltd, the claimant’s contract of employment was terminated and he signed a General Release and Discharge Certificate wherein he had indicated his reservation of the contents of the certificate. He was held not to have waived his right. The defendant then submitted that in contrast with this instant case, the claimant accepted and acknowledged receipt of the sums of N1,250,000.00 and N5,344,347.30 as full and final entitlements upon separation with the defendant, without any protest or reservation as to the sums disclosed in the cheques he received or the content of the letter accompanying the cheques. That the only option opened to the claimant in such a situation, if he disputed the computation of his final entitlement, is to sign under protest. This the claimant never did. He signed without protest, cleared the cheques, and months later turned round to complain. That the claimant having accepted and acknowledged the sums of N1,250,000.00 and N5,344,347.30 as full and final entitlements due to him without any complaint, cannot later claim for any outstanding and unpaid allowances. This is clearly a waiver of his right to make any claim for unpaid allowances. Furthermore, that in Nitel v. Ikaro (supra), the Court opined that waiver has a common feature with other equitable principles of laches, acquiescence and estoppel and that is volition or exercise of will, express or implied, by the party concerned. That the Court went on to state that a person against whom the doctrine of waiver is raised must be aware of the act or omission; and must have done some unequivocal act adopting or recognizing the act or omission. The defendant went on that in the instant case, the presentation by the defendant of two (2) cheques to the claimant, the first cheque in the sum of N1,250,000.00 dated 29/4/2009 (Exhibit D1) and the second cheque of N5,344,347.30 dated 6/5/2009, Exhibit D2(c), with a covering letter also dated 6th May 2009, Exhibit D2(a), captioned “Final Entitlement” and attached breakdown of calculation, Exhibit D2(b), and the claimant’s acceptance of same without any protest clearly amounts to a waiver by the claimant of any right to complain about the final entitlement. The defendant then submitted that the claimant was neither visually impaired nor was he compelled or coaxed into accepting what was presented to him. That it is apparent that the wording contained in the covering letter of May 6, 2009 was unequivocal and would be easily understood and was in fact understood by the claimant who accepted the letter and the payments. The defendant referred the Court to John Holt Ventures Ltd v. Oputa [1996] 9 NWLR 101 at 119, where the Court of Appeal held that – Where an employee accepts salary in lieu of notice of termination of his appointment, he cannot be heard to complain later that the contract of employment was not validly and properly determined. Such acceptance renders the determination mutual. Since in the instant case the Respondent had been paid salary in lieu of notice which he accepted as well as other allowances and benefits, the trial Court was in error to have held that the appointment was not determined. Also referred to the Court are Morohunfola v. Kwara State College of Technology (supra) and Friday Williams v. FCNA [1996] 1 NWLR (Pt. 423) 232. To the defendant, from the evidence and pleadings of the claimant, he has not shown or proved that he never accepted salary in lieu of notice neither did he deny the fact that he never protested against the salary received and the termination. The defendant continued that the claimant in his pleadings and evidence (testifying as CW) contends that he is entitled to outstanding out of station allowances (Estacode), outstanding and unpaid benefits both in money and kind for the service year 2009, and to one year notice of termination or payment in place of the one year. To the defendant, the claimant has not shown that he is entitled to them as his clear acceptance of his termination by acknowledging salary in lieu of the said notice of termination without reservation negates any right he intends to pursue. That this would clearly be an afterthought. That the claimant under cross-examination admitted that he was paid remuneration for three (3) months period, covering the notice given to him. He also confirmed during cross-examination that the handwriting and signature on Exhibits D1 and D2(a) are his, wherein he had acknowledged receipt of his final entitlements. He further admitted, still under cross-examination, that he received Exhibits D2(a), D2(b) and D2(c) and clearly understood them to mean that he was being given or paid his full and final entitlements. According to him he also cleared the cheque of N5,344,347.30 as per Exhibit D2(c). The claimant also acceded to the fact that when he received Exhibits D1, D2(a), D2(b) and D2(c) he never protested nor did he complain. And he also admitted that he received an amount in excess of the defendant’s computation of his net entitlement. He admitted also that in computing his net entitlement as per Exhibit D2(b) an ex-gratia amount of N5,600,000.00 was calculated and added to him, in excess of what he was actually entitled to receive. The defendant referred to the case of Odiase v. Auchi Polytechnic, Auchi [1998] 4 NWLR (Pt. 547) 477 at 490. The defendant continued that the claimant contended that while in Ghana he was entitled to an Estacode of more than $300.00 per day for eleven (11) months. He also claims he was entitled to $400.00 (referring to paragraph 5 of the claimant’s reply to the statement of defence) as a Director based on an alleged approved reviewed Estacode by the defendant. The claimant tendered Exhibit C15 in proof of this fact. In answer, it is the case of the defendant that the claimant’s entitlement to Estacode of $300.00 was for duration of fourteen (14) days (referring to paragraphs 8 and 10 of the amended statement of defence). To the defendant, the claimant’s reliance on Exhibit C15 in proof of his entitlement to a daily estacode of $300.00 per day for eleven (11) months and his entitlement to a reviewed estacode of $400.00 as a Director is disputed as the source or origin of such document (Exhibit C15) could not be traced to have emanated from the defendant. That this was clearly brought out in the course of cross-examination of the claimant’s CW. The defendant accordingly urged the Court not to accord any weight to this document (Exhibit C15) and discountenance it accordingly for the reasons given above. The defendant also called on the Court to consider Exhibits C1 and C12. Exhibit C1 provides for the remuneration and benefits package of the claimant by virtue of his promotion to a Director in the defendant company while Exhibit C12 is just the Employee Handbook which is simply a general guide to the goals, policies, practices and expectations of the defendant company. To the defendant, the Employee Handbook (Exhibit C12) which the claimant sought to give a lot of credence to is not the contract of employment. That the claimant’s reference to Exhibit C12 in his written statement on oath, which he adopted as his evidence in chief particularly in paragraphs 16, 18 and 20 as to his entitlements and the defendant’s breach is untenable and cannot be substantiated. That in computing what is due to the claimant, the defendant had taken into consideration the provisions and terms as stated in the contract of employment (Exhibit C1, letter of promotion) and not the Employee Handbook (Exhibit C12). The defendant then referred to FLRAPSSA v. MBNL [2010] 19 NLLR (Pt. 53) 175 where this Court opined that a claimant who claims for wrongful termination of his contract of employment must establish through credible evidence that the terms of the contract of service was not complied with; and Osumah v. Edo Broadcasting Service & anor [2011] 23 NLLR (Pt. 65) 212 CA, where the Court of Appeal held that a Court is duty bound to confine itself to terms of contract of parties in construing the relationship between them. The defendant also referred the Court to the provision of the Employee Handbook in page 89, paragraph 4 and submitted that the Employee Handbook (Exhibit C12) is not the contract of employment binding both the claimant and the defendant. The provision reads thus – I understand that The Company Employee Handbook is not a Contract of Employment and should not be deemed as such, and that I am an employee at will. To the defendant, by this provision, an employee of the defendant company (the claimant) undertakes and acknowledges the fact that the Employee Handbook only defines the goals and objectives of the company in relation with its staff and is not the contract of employment by any standard. The defendant accordingly urged the Court to discountenance the totality of the claimant’s claims and evidence as totally baseless and a mere afterthought and hold that the claimant has not established any case as to be entitled to any outstanding or unpaid allowances whatsoever. On issue 2 i.e. whether the claimant has proved that there was a breach of contra t of employment as to entitle him to damages, the claimant had argued that the termination of his contract of service with a notice of less than one year is wrongful and payment also of less than one year as being improper and against the provisions of the Employee Handbook which he alleged clearly defines the obligations and other benefits and entitlement of employees. The claimant also claimed outstanding and unpaid allowances and remunerations in line with his remuneration package as a Director in the defendant company. Here, the defendant repeated its arguments on issue 1 above and submitted that the claimant has not shown from the evidence adduced in this matter that he is entitled to damages for breach of contract of employment. To the defendant, the claimant contended that he is entitled to a year’s notice for the year 2009 whilst citing the provisions of the Employee Handbook (Exhibit C12) as to the length of notice as a retiree. However, that under cross-examination he admitted not to have worked for the full year 2009, and yet he claimed outstanding allowances for the whole year. Still under cross-examination, that the claimant admitted that he never informed the defendant that the reason he did not work for the full year was on health grounds or partial disability which is the only condition as stated in the Employee Handbook (Exhibit C12) that a retiree may be excused from working during the notice period. He admitted also that he worked for a period of three months and confirmed he was paid for the full three months. To the defendant, there was no breach of contract by the defendant and, therefore, the issue of damages cannot in principle be sustained as same will be standing on nothing. The defendant continued that it is trite law that an employee who alleges that his contract of employment has been wrongfully terminated must prove same. It is insufficient that facts are averred in the pleadings where no evidence or inadequate evidence is adduced to prove those facts. That the burden of proof of breach of terms of employment lies on the party who alleges that fact, referring to CBN v. Dinneh [2011] 23 NLLR (Pt. 64) 1 CA. The defendant then urged the Court to hold that since the claimant has failed to prove the alleged breach of the contract of employment he is not entitled to damages. The claimant in paragraph 12 of his statement of facts had stated that his termination with the three (3) months notice given to him never met the provisions of the Employee Handbook which he alleged defined the rights and obligations of employees, and also defined the terms and conditions of their employment. On this, the defendant submitted that the Employee Handbook is not the contract of employment, reiterating its earlier position under issue 1 and referring to page 89, paragraph 4 of the Employee Handbook (Exhibit C12). The claimant also in paragraph 13 of his statement of facts had also alleged that based on the provisions of the Employee Handbook he was entitled to his standard and complete package of remuneration. The claimant also testified under cross-examination that at the time of his exit the total remuneration and entitlements to him were as stated in Exhibit C1 (the letter of promotion dated 30th November 2007). It is the submission of the defendant here that the entitlements and all allowances due to the claimant were as stated in his letter of promotion and not the Employee Handbook. That it is based on the letter of promotion (Exhibit C1) that the claimant’s entitlements and allowances were computed by the defendant and not the Employee Handbook, referring to the statement of DW (Mr. Sam Iloabuchi) under cross-examination where he stated that the relationship between the claimant and the defendant is regulated by the letter of employment and not the Employee Handbook. However, that the claimant would only be entitled to general damages if the liability of the defendant can be established, which the claimant has failed to establish. The defendant then urged the Court to hold that the claimant has not proved that his contract of employment was wrongly terminated as would entitle him to damages. Regarding issue 3 i.e. whether the claimant has proved that he is entitled to special damages, the claimant had claimed N15,807,500.00 and $86,100.00 as special damages and the sum of N3,000,000.00 as general damages against the defendant for wrongful termination and breach of contract of employment. To the defendant, it is trite law that special damages must be strictly proved, referring to Ngilari v. Mothercat Ltd [1999] 13 NWLR (Pt. 636) 626 at 647 SC and Prime Merchant Bank Ltd v. Man-Mountain Company [2000] 6 NWLR (Pt. 661) 524 at 530. To the defendant, having submitted on issue 1 above that the claimant has failed to establish his case against the defendant and the defendant is not liable to the claimant, it is equally the case that the claimant has failed to prove strictly his claim in special damages. In relation to the sum of $86,100.00 the claimant claimed as accrued outstanding but yet to be paid International Out of Station Allowances (IOSA) for a period of 287 days while on international posting, the defendant submitted that the claimant failed to lead or tender any evidence in proof of this claim. That there is nothing to show that the defendant did agree to pay him such amount of money while on international posting. That the claimant sought to tender Exhibit C15 (an internal memo for schedule of Estacodes dated 29th of January 2008) as emanating from the defendant approving payment of an alleged reviewed Estacodes. To the defendant, as submitted earlier under issue 1 above, the source of this document is not known and the Court is urged to discountenance this document, referring to Eze v. Okoloagu [2010] 20 WRN CA 80, where Tsamiya, JCA at page 107 line 5 held that – It is the law that when the authenticity of a document is challenged in a trial the onus crystallized on the party propounding the document to establish its authenticity/genuineness. That in Eze v. Okoloagu, the 1st respondent failed to discharge the onus, and offered no evidence to show that Exhibit 14 – 14B (documents it sought to tender in evidence) were ballot papers printed for and used by INEC at the election. That the Court of Appeal found the acceptance and admission of the documents by the tribunal improper. The defendant, therefore, submitted that the document (Exhibit C15) the claimant seeks to tender m evidence as emanating from the defendant is not identifiable as such. The defendant continued that the claimant also claimed that he is entitled to N15,807,500.00 as his unpaid remuneration due to him as Director of the defendant company, but has not proved same satisfactorily. That it is to be noted that the bulk of the sum he is claiming for is for unpaid allowances for the year 2009 and his contract was terminated in April 2009. It is the submission of the defendant that by virtue of the notice of termination, the claimant cannot claim for what he is not entitled to. It is also the defendant’s contention that by virtue of Exhibit C1 (the letter of promotion) and the attached breakdown of the remuneration package for the position of Director, the defendant has categorized the claimant’s entitlements to be in cash and in kind. While benefits in cash are paid in cash, the benefits in kind are provided by the company e.g. car, generator maintenance, vehicle maintenance, DSTV maintenance, official driver, medical expenses, phone, generator and club membership. They are called non-cash benefit. That in calculating and computing the claimant’s entitlement, the defendant had taken into consideration the length of notice given. And based on this the claimant was paid his entitlement up till April 2009 when his contract was terminated. On the totality of the evidence before the Court, the defendant submitted that the claimant has failed to establish his claim for special damages. In conclusion, the defendant submitted that the claimant’s entire case actually turns on a very simple issue: the claimant’s case is based on breach of contract. It is the responsibility of the claimant to clearly establish the nature and terms of the contract for breach of which he took the defendant to Court. If the contract is in writing the claimant must tender the contract and must prove that his right to damages is grounded upon and provided for in that contract. Again, that the claimant failed to adduce cogent evidence of his entitlement to estacode of $300 per day for a period of 287 days. In fact, that at the trial his evidence on this point was confusing and contradictory. He claimed that he was entitled to $300 per day when he was responsible for his own accommodation and upkeep and paid his hotel bill out of that sum. He claimed he was still entitled to the same $300 per day even when he was quartered in the defendant’s Guesthouse and paid no hotel bills. He also claimed at some point he was entitled to estacode of $400 per day. In summary, that the evidence of the claimant in support of his claims is unreliable, contradictory, and self-serving. It is not supported by the very documents on which he relied. The defendant then submitted that the claimant’s reliefs 1, 2, 3 (special damages) and 4 (general damages) must fail. Accordingly, his relief 5 for interest and relief 6 for cost of the action must also fail. Furthermore, that the claimant has not placed sufficient evidence before this Court in support of his claims for wrongful termination and the claims for special damages. Consequently, the claimant has not proved his entitlement to the claims, urging the Court to dismiss the claimant’s claim in its entirety with substantial cost to the defendant. In reacting to the defendant’s written submissions, the claimant reeled out what he termed admitted and/or undisputed facts between the parties. To him the following facts are either expressly or impliedly admitted and/or undisputed between the parties – (a) There was a relationship of employee and employer between the parties up to 21st April 2009. The relationship commenced in 1997 with the employment of the claimant as a Senior Manager. (b) In the course of the said relationship, in 2007, the claimant was promoted a Director of the defendant with a total annual remuneration package of N18,000,000.00 (Eighteen Million Naira) only. (c) In 2008, the claimant was nominated and appointed the pioneer Managing Director of an international subsidiary of the defendant known as IGI Ghana Limited and consequently transferred to Accra, Ghana. (d) Notwithstanding the said posting and transfer to Ghana, the claimant remained an employee of the defendant under the same terms and conditions of service and particularly with the same total annual remuneration package as stated in his letter of promotion as a director. (e) For the first one month of his stay at Ghana, the claimant was paid an Out of Station Allowance of $300 US Dollars per night. After the said first month, he moved into the defendant’s guesthouse and resided therein for the remainder of 10 months (287 days) that he served in Ghana. For the said period of 287 days, the defendant did not pay him any sum at all as Out Station Allowance. (f) For the entire service year of 2008, out of the total annual remuneration package due to the claimant, the defendant only paid him the sum of N15,418,000.00. The remainder of N2,582,000.00 was not paid while he was at Ghana and is still not paid. The claimant made several demands for the settlement of the said unpaid Out of Station Allowance and outstanding remuneration and the defendant still refused to pay them. (g) On the orders of the defendant, the claimant returned to Nigeria in November of 2008 and on the 20th of January 2009, the defendant served him a three months’ notice of retirement that lapsed on the 21st of April 2009. He was by the said letter of retirement also notified that his severance entitlements were being computed and would be paid to him at a later date. (h) The claimant protested the three months notice of retirement given to him as against a year’s notice stipulated by the defendant’s Employee Handbook. The protest letter is dated the 16th of February 2009. He eventually exited the defendant’s employment at the end of April 2009. In line with the said letter of retirement, he was paid a cumulative severance package of N6,594,347.30. This sum was paid in two instalments on the 29th of April 2009 and 6th of May 2009 respectively. (i) In 2009, the claimant was only paid his said annual total package of remuneration for only three months, leaving a balance of N14,825,500.00 representing 9 months’ entitlements. The claimant went on that both in his statement of facts and reply to the statement of defence of the defendant, he unambiguously pleaded the defendant’s Employee Handbook as the document that embodies the terms and conditions of his contract of employment with the defendant. That there was nowhere in the defendant’s amended statement of defence that it denied that positive averment. That it was on that state of pleadings that trial in this matter was conducted. To the claimant then, in the absence of any clear denial in the defendant’s pleading of the averments as to the status of the said Employee Handbook in the parties’ relationship, it is deemed to have admitted it. That it is instructive that the defendant’s amended statement of defence was filed about a year after the claimant’s reply. It had ample opportunity to put the said document in issue by clearly countermanding the claimant’s averments regarding its role in their relationship, referring to section 123 of the Evidence Act 2011 which provides thus – No fact needs be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time, they are deemed to have admitted by their pleadings: Provided the Court may, in its discretion require the facts admitted to be proved otherwise than by the said admissions. That it is trite that facts pleaded by a party which are neither expressly nor impliedly denied by the other party, are deemed admitted, citing Ezenwa v. KSHSMB [2011] 9 NWLR (Pt. 1251) 89 at 116 A – B. The claimant went on that in the course of cross-examination, DW gave evidence by which the defendant attempted for the first time to deny the company’s Employee Handbook as the document embodying the parties’ terms and conditions of contract of employment and thereby put it in issue. For ease of appreciation, the said evidence is as follows – The defendant’s Employee Handbook came in after I joined the service. When the Employee Handbook came out, there were unresolved issues regarding it, so it had to be suspended in terms of its application. What I just said is not pleaded. To the claimant, this piece of evidence is not anchored on issues raised in the parties’ pleadings and so it goes to no issue and is accordingly inadmissible, citing Edward Okwejiminor v. G. Gbakeji and Nigerian Bottling Company Plc [2008] 5 NWLR (Pt. 1079) 172 SC at 196 C – E, where Niki Tobi, JSC held that – In the first place, the evidence elicited under cross-examination on which the Court of Appeal based its findings quoted above was not founded on issues raised in the pleadings. I am therefore persuaded by the submission of learned counsel to the appellants that they go to no issue for it is settled that evidence obtained in cross-examination but on facts not pleaded is inadmissible. Also referred to the Court is Ojoh v. Kamalu [2005] 18 NWLR (Pt. 958) 523 at 548H. The claimant continued that the defendant, in canvassing arguments on three issues it framed, made subtle attempts to either misrepresent the actual facts of the parties’ cases and/or quote the proceedings of the trial out of context. For this position, the claimant referred to paragraphs 4.1.21, 4.1.24, 4.1.27 under issue one and paragraph 4.2.17, under issue two, in the defendant’s written address. To the claimant, both in the parties’ pleadings and the evidence at the trial, it is on record that the claimant was served only three months’ notice of retirement from the defendant’s employment. He worked for the said period of notice as he was given discretion by the defendant. Consequently, the terminal benefits paid to him by the defendant were not in lieu of notice. Nor is it the case of the claimant that he accepted the said payment in lieu of notice. It is, therefore, the claimant’s submission that paragraphs 4.1.21 and 4.1.24 are completely at variance with the pleadings and evidence adduced at the trial. That the pattern of distortion and/or misrepresentation continued in paragraph 4.1.27. That the claimant never said under cross-examination that ‘he understood his acceptance of Exhibits D2(a), D2(b) and D2(c) to mean that he was being given or paid his full and final entitlements’. The claimant went on that the defendant’s submission in paragraph 4.2.17 under issue two is even more serious. The said submission is as follows – It is based on the letter of promotion, Exhibit C1 that the claimant’s entitlements and allowances were computed by the defendant and not the Employee Handbook. We refer to the statement of DW under cross-examination where he stated that the relationship between the claimant and the defendant is regulated by the letter of employment and not the Employee Handbook. To the claimant, this submission by the defendant is a brazen distortion of the proceedings of this Court. It is trite that the Court’s record is the most authoritative position of the proceedings of the Court. There was never a time the defendant’s sole witness made the above statement, whether in his evidence in chief or cross-examination. The above paragraph is completely at variance with the Court’s record of the proceedings of 14th May 2003 when DW gave evidence and was cross-examined. The claimant then urged the Court to discountenance the above paragraphs of the defendant’s address and all the arguments built on them. The claimant further contended that even if the said quoted DW statement was truly made during trial and under cross-examination, it would have still gone to no issue because it is based on facts which ought to have been pleaded but were unfortunately not pleaded and therefore inadmissible on the authority of Edward Okwejiminor v. G. Gbakeji and Nigerian Bottling Company Plc (supra). The claimant proceeded to frame four issues for the determination of the Court, namely – (a) Whether the offer and acceptance by the claimant of the terminal benefits computed by the defendant after his earlier formal and elaborate protest of 16th February 2009 of the duration of notice given him of his retirement constituted a waiver and a bar to any complaint by him afterwards, including the institution of this suit. (b) Whether the claimant was as of right entitled to his employment benefits that had accrued and, therefore, outstanding prior to the termination of his contract of employment, regardless of whether the said termination was wrongful or otherwise. (c) Whether the claimant has made out a case for wrongful termination of his contract of employment. (d) Whether on the state of the parties’ pleadings and the evidence adduced at the trial, the claimant has established to the required standard that he is entitled to special and general damages for breach of contract of employment between him and the defendant. Regarding issue (a), the claimant answered in the negative. To the claimant, in his statement of facts and reply to the defence of the defendant, he pleaded unequivocally that the terms and conditions of his employment with the defendant are stipulated in the company’s Employee Handbook, Exhibit C12. This material fact was not anywhere countermanded in the defendant’s defence. So no issue whatsoever was joined on that fact. It was only in the course of cross-examination that its sole witness attempted to raise issue about Exhibit C12. Of course, because there was no fact in its pleading on which to anchor that evidence, it goes to no issue and, therefore, inadmissible. The claimant continued that Chapter 3 at page 19 of Exhibit C12, captioned ‘Separation’, makes provision for not only the defendant’s general policy on retirement, but also the requisite duration of notice to be given by either the defendant or the claimant and the benefits accruable to a retiring employee. The claimant also referred to section 3.8 at page 25 titled, ‘Retirement’ which deals with two alternative situations where the employee may voluntarily elect to retire or where the defendant takes the decision to retire an employee. The relevant sub section 3.8(ii) states thus – The company will give one year notice to employees who are due to be retired from the company’s service. The employee is expected to work for the period of notice unless unable to do so on health grounds or due to total or partial disability. The claimant then submitted that as it was the defendant who exercised the option of retiring the claimant; it was required to give him not less than a year’s notice as stipulated by its own Employee Handbook. That in flagrant breach of the said provision, the defendant only gave the claimant three months’ notice. In reaction to the said contractually inappropriate notice, the claimant strongly protested to the defendant by a letter dated 16th February 2009 (Exhibit C10) and demanded that the right duration of notice be given to him. That it is noteworthy that the defendant failed and/or refused to make any response at all to the said protest. The claimant went on that in paragraph 2 of Exhibit C9 (notice of retirement), he was also notified that his final entitlement was ‘being computed and would be made available to him upon his submission of all company properties in his possession’. That Exhibits D1, D2(a), D2(b) and D2(c) were not only predicated on Exhibit C9 but also imperative and consequential fulfilments of the defendant’s undertaking therein to avail the claimant his final entitlements at a future date. The claimant, however, conceded that at the very point of collecting the said defendant computed terminal benefits, the claimant did not make any additional complaint against the manner and circumstances of his retirement. He then submitted that as Exhibits D1, D2(a), D2(b) and D2(c) constitute mere executions of the undertaking in Exhibit C9, it was not necessary any more for the claimant to further protest or even reject the offered terminal benefits. That the earlier protest in Exhibit C10 suffices for the purposes of this action. To him, collection of the said terminal benefits did not, therefore, amount to a waiver of his right to complain afterwards and/or initiate this proceeding. The claimant continued that in view of the hardship the defendant exposed him to as a result of his inappropriate and forced retirement, he was not expected to ‘protest on empty stomach’. He referred particularly to paragraph 15 of the claimant’s statement of facts wherein he highlighted the rather unbearable difficulties he and his family faced in the immediate aftermath of his retirement. It is unarguable that at an annual remuneration package of N18,000,000.00 (Eighteen Million Naira), the claimant, a Director for that matter, was not an ordinary employee. He was surely an upscale employee with an elite life style to match. To suddenly retire him, throw less than 30% of his annual remuneration package at him as the defendant disrespectfully did and expect him to walk away on empty stomach, was not only a tall order but also most unconscionable. The claimant also referred the Court paragraph 12 of his statement of facts where he pleaded that the object of the long notice of retirement stipulated by the defendant itself in Exhibit C12 is to afford an intending retiree a reasonable length of time to prepare for life after retirement and the attendant daunting challenges. This material and weighty averment was not anywhere countermanded by the defendant. To the claimant, while it is the general statement of the law that where there is a breach of contract of employment and an employee accepts his offered terminal benefits without protest, the termination is deemed mutual, it is submitted that it is not in all cases of acceptance of terminal benefits that such inference is drawn. He referred to Ulegede & anor v. The Milad of Benue State [2001] 2 NWLR (Pt. 696) 73 at 90 where the Court of Appeal relying on the earlier case of NITEL v. Ikaro [(1994] 1 NWLR (Pt. 320) 350 held that the acceptance by the appellants of their three months salaries in lieu of notice after an earlier vigorously protested premature retirement, could not be said to amount to waiver of the right to sue. The dictum of Akpabio, JCA in that case is quite apposite and reproduced thus – In the instant case, since the two appellants were top legal officers in the Benue State Ministry of Justice and had vigorously protested their purported premature retirement, they cannot be said to have waived their right to sue. They could also not be expected to protest on empty stomach. The claimant went on that the case of Morohunfola v. Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 cited and relied heavily on by the defendant is clearly distinguishable from the facts of this case. Unlike in this case, that was a case where the employee accepted without any form of protest the three months’ salary paid him in lieu of notice and it was rightly held that he had waived his right to complain afterwards. That it is also important to stress that the decision of the Court in that case was largely influenced by the gross inadequacy of material facts in the claimant’s pleadings. The claimant then urged the Court to hold that in the light of Exhibit C10 and the supervening economic hardship clamped on him by his inappropriate retirement, the claimant’s subsequent acceptance of his terminal benefits did not by any stretch of imagination amount to a waiver of his right to institute this action. On issue (b) i.e. whether the claimant was as of right entitled to his employment benefits that had accrued and, therefore, outstanding prior to the termination of his contract of employment, regardless of whether the said termination was wrongful or otherwise, the claimant contended that it is unarguable that from 2007 when the claimant was promoted to the position of a Director in the employment of the defendant till he was retired in 2009, his total remuneration package was the sum of N18,000,000.00 (Eighteen Million Naira), referring to Exhibit C1 (letter of promotion). That it is also not in dispute that out of the said total package, only the sum of N15,418,000.00 was paid in 2008 when he was on international posting to Ghana, leaving an unpaid balance of N2,582,000.00. To the claimant, by Exhibit C1 the sum of N9,618,000.00 out of the said total package of remuneration represents cash payments to which the claimant was entitled while the remainder of N8,382,000.00 constitute non-cash benefits to be provided by the defendant directly. That it is obvious that from the sum paid to the claimant in 2008, substantial part (approximately 70%) of the said non-cash benefits were paid to him cash. This is again undisputed from the parties’ pleadings. The claimant then submitted that as he rendered the defendant the agreed full year’s service in 2008, he was entitled to be paid his total package of remuneration, whether in cash and/or kind. That as he remained in the employment of the defendant, on the exact same terms and conditions of service while on the said international posting to Ghana, there is no justification for the underpayment of his complete package of remuneration by the defendant. That the reason offered by the defendant for the short payment of the agreed 2008 remuneration to the claimant was that the right of the claimant to be paid the said outstanding non-cash benefits was ‘locational’ and hence conditioned upon his being in the country at the material time, referring to paragraph 19 of the amended statement of defence. To the claimant, a critical consideration of the said Exhibits C1 and C12 will show that there is nowhere therein it is stated that the right of the claimant to be provided the said non-cash benefits is locational or tied to his being in the country at the relevant time. That this position was corroborated by DW in the course of cross-examination when he said thus: “Exhibit C1 is not specific as to which non-cash benefits are locational”. And very importantly, that Exhibit C1 is a document and being so, the defendant is not permitted to countermand it either by oral evidence or its pleadings, referring to Macaulay v. NAL Merchant Bank Ltd [1990] 4 NWLR (Pt. 144) 283, where the Supreme Court held that where the defendant has himself admitted that the terms and conditions of the agreement between him and the plaintiff, which was the subject of the dispute before the Court, had been reduced into writing, by the provision of section 132 of the Evidence Act, such a defendant cannot be heard to say that besides those written terms and conditions, there were other evidence of the terms of the agreement. That it is only the written conditions and terms of such agreement that are the evidence of the agreement’s terms and conditions, citing Larmie v. DPMS Ltd [2005] 18 NWLR (Pt. 958) 438 and section 128 of the Evidence Act 2011. Another benefit to which the claimant claimed while in the defendant’s employment was Out of Station Allowance otherwise called estacode. That it is also generally regarded as inconvenience allowance. This allowance comes under the defendant’s general policy on transfer of its employees and is clearly spelt in the company’s Employee Handbook, Exhibit C12. The claimant referred to Chapter 6, page 46, of the said document embodying the parties terms and conditions of contract of service. The said defendant’s policy on transfer is stipulated under section 6.4 at page 48 of Exhibit C12 as follows – The company recognizes the need for job rotation of employees as an integral part of the employee development process. ..................................................... It should be noted that employees transferred from one location to another usually incur additional expenditure as a result of the transfer. Company policy in this regard is to compensate all transfers initiated by it to assist the employees in settling down in their new locations. To the claimant, Exhibit C12 also recognizes two categories of transfers under the company policy, namely, temporary and permanent. Under section 6.4(a)(ii) at page 49, transfers of more than 6 months are defined as permanent. By section 6.4(c)(iv), among others, an employee on permanent transfer is entitled to be provided accommodation, either at the defendant’s guesthouse or payment in lieu. Beside the entitlement to accommodation or payment in lieu, section 6.4(e) at page 52 unequivocally stipulates the right of an employee on permanent transfer to be paid inconvenience/disturbance allowance, mutually recognized by the parties in their pleadings as out of station allowance/estacode. The claimant continued that it is in evidence that in 1997, on an official assignment for the defendant to London, the claimant was as a Senior Manager paid an out of station allowance/estacode of $180 US Dollars. In 2008, he was posted to Ghana on permanent transfer and he remained there for a cumulative period of 11 months (from January 2008 – November 2008). For the entire period the claimant was in Ghana, he was only paid $300 US Dollars per night for the first one month and for the rest of the period he resided in the defendant’s guesthouse, he was never paid a dime either as out of station allowance, estacode or inconvenience allowance. It is the claimant’s submission that the rights of the claimant to the provision of accommodation at Ghana or payment in lieu and the payment of out of station allowances/inconvenience allowances/estacode are not alternative rights but mutually exclusive entitlements. In other words, the provision of accommodation by the defendant for the claimant at its guest house cannot excuse its failure or refusal to pay him out of station/inconvenience allowances as clearly stipulated in Exhibit C12. That for almost the entire period he resided in the defendant’s guest house at Ghana, for himself and on behalf his other colleagues from Nigeria, he severally sent ‘save our soul’ (SOS) messages to the defendant pleading that out of station/inconvenience allowances be paid to them, referring to Exhibits C3 – C6. In Exhibits C5 and C6, he passionately pleaded that they be paid at least 50% of the estacode of $300 US Dollars paid to him in January of 2008. The only response to the said claimant’s letters was Exhibit C7 written by Mrs. Folasade Adetiba, the defendant’s Deputy Managing Director wherein she acknowledged the entitlement of the claimant to the allowance but only pleaded for his patience and understanding. That in spite of the above acknowledgement, the defendant still refused to pay the claimant any sum at all. Even after the claimant was recalled to Nigeria, he continued to demand for the settlement of the said accrued out of station allowances/estacode, referring to Exhibits C10 and C21 respectively. To the claimant, in his reply to the statement of defence, he acknowledged that his occupation of the defendant’s guesthouse for the period he is claiming estacode/out of station allowances, would naturally result in commensurate diminution in the amount of out of station allowance he was entitled to. That as he has established his contractual right to the payment of out of station allowances, he urged the Court to exercise its discretion by awarding him a proportionate sum as estacode per night, using the $300 US Dollars earlier paid as a benchmark. He referred to the decision of this Court in the case of Severinsen v. EMTS Limited [2012] 27 NLLR (Pt.78) 374 where though the claimant claimed the sum of $99,000.00 US Dollars as accrued contractual bonuses, the Court awarded him only $66,000 which he was only able to prove. In considering the sum to award as out of station allowance per night, the claimant urged the Court to reckon that for the same service year of 2008 when this allowance accrued, the defendant also short paid the claimant his agreed total package of remunerations by N2,582,000.00. He submitted that the treatment the defendant meted to him while on the said Ghana posting was, to say the least, most inequitable. That it is as though the said posting was a punitive measure and in every respect negated the defendant’s established policy on employee transfers. That this Court is a court of justice and, therefore, ought to intervene on the side of the claimant. The claimant continued that it is indisputable that the claimant’s rights to the remainder of his 2008 total package of remuneration and out of station/inconvenience allowances accrued before the termination of his employment in 2009. The benefits were already earned by the claimant and not in any way affected by whether his contract of employment was wrongfully terminated or otherwise. The said accrued benefits were, therefore, in the nature of a debt owed the claimant by the defendant, urging the Court to so hold. He then referred to Onalja v. African Petroleum Limited [1991] 7 NWLR (Pt. 206) 691 at 694 and Ulegede & anor v. The Milad of Benue State (supra) at page 91 where the Court of Appeal held as follows – I want to say that regardless of whether a plaintiff’s claim for wrongful dismissal, termination or retirement from service was successful or dismissed, his claims, benefits and entitlements which had accrued before the dismissal, termination or retirement are always paid to him. Regarding issue (c) i.e. whether the claimant has made out a case for wrongful termination of his contract of employment, the claimant contended that as he canvassed particularly under issue (a), the terms and conditions of the parties’ employment contract are embodied in Exhibit C12, the defendant’s Employee Handbook. On this issue, the relevant Chapter of the said Exhibit is Chapter 3, page 19, captioned ‘Separation’. Section 3.8 at page 25 of the Handbook specifically deals with retirement and the duration of notice either the employee or the employer shall give. Under that section, where it is the defendant that undertakes to retire the claimant, he was required to give him not less than one year notice of that intention. Another relevant section on the matter of termination is section 5.7 at page 44 of the said Handbook. It stipulates the general policy of the defendant on termination of employment as follows – Termination of employment can either be initiated by the company or the employee with either party giving the required notice period or payment in lieu of notice. That it therefore follows that in order to properly retire or terminate the claimant’s employment, the defendant was required to give him one year notice or pay him his entire package of his remuneration for the year, in lieu of notice. That rather than the one year notice stipulated by Exhibit C12, the defendant only gave him three months’ notice, Exhibit C9. It did not also follow and comply with the alternative option of paying him a year’s remuneration in lieu of notice. Beside the agreed retirement benefits, the defendant only paid him his remuneration for the given notice period of three months. The claimant the submitted that the refusal of the defendant to give him the agreed one year notice of retirement or pay him a year’s remuneration in lieu of notice is an un-condonable breach of the parties’ contract of employment. That in Abalogu v. SPDC Limited [2003] 3 NWLR (Pt. 837) 308 at 333 C – D, the Supreme Court held that – Where as in the instant case, a contract contains a provision that either party thereto may determine it by specified notice or payment of prescribed sum of money in lieu thereof such notice or payment, as the case may be, must be complied with in strict accordance with the terms of the contract. Also referred is Spring Bank v. Babatunde [2012] 5 NWLR (Pt. 1292) 83 at 101 B, where the Court of Appeal held as follows – It is trite that a master can terminate the contract of employment with his servant at any time and for any reason or for no reason whatsoever. Where however the contract is terminated in a manner inconsistent with the terms of the contract of employment, the master must pay for the breach. The only exception is in respect of employment with statutory flavour. To the claimant, the question that logically follows is: what measure of damages is the claimant entitled to? In answer, he referred to Nigerian Produce Marketing Board v. Adewunmi [1972] 1 (Pt. 2) All NLR 870; and Chukwuma v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 at 538, where the Supreme Court held as follows – Having held that his employment was wrongfully terminated, he is undoubtedly entitled to damages. On the authorities as they stand, he is entitled to what he would have earned over the period of notice. The claimant went on that it is agreed by the parties that out of the total remuneration package of N18,000,000.00 to which the claimant was entitled over the agreed notice period of one year, the defendant only paid him a paltry sum of N3,174,500.00, leaving a disproportionate balance of N14,825,500.00. That the terminal benefits also paid represent the settled benefits the claimant would have still earned, whether he was properly retired or otherwise. He then urged the Court to order the defendant to pay him the said balance of unpaid remuneration package for the 2009 service year. That on authorities, he is entitled to all the heads of his salary and allowances for the year, whether in cash or kind, referring to Chukwuma v. Shell Petroleum (supra) at page 539 A – B where the Court further said – In addition, he would also be entitled to other allowances for the period of two months normally enjoyed by him such as car allowance etc. Equally, he would be entitled to his entitlement under the pension scheme. Also referred is Evans Bros. Nig. Publishers Limited v. Falaiye [2005] 4 NLLR (Pt. 9) 108 where this Court held that a terminated employee would be entitled to be paid what is stipulated in the company’s conditions of service which is made an integral part of his contract of employment. The claimant continued that while arguing its issue 2, the defendant made heavy weather of Exhibit C15, a supposed table of estacodes for varying categories of the defendant’s employees. That its position is that the exhibit is not only not credible but also has no nexus with the company. Our straight forward take on this issue is that the claimant’s claim to entitlement to out of station allowances/estacode is not predicated on this document. For the avoidance of doubt, the claimant’s claim for estacode is based on Exhibit C12 and the earlier approved allowance of $300 USD. A multiplication of $300 by 287 days will give $86,100 USD. Exhibit C15 was tendered to merely show that in 2008 there was a review in the defendant’s scale of employees’ estacodes. That the upshot is that even if the Court discountenances the said Exhibit C15, as the defendant strongly canvassed, it will not have any adverse consequence on the claimant’s claim. The defendant also challenged the applicability of Exhibit C12 as the embodiment of the parties’ terms and conditions of contact of employment and prayed the Court not to attach any probative value to it. On this score, the claimant repeat his earlier contention that as the defendant failed in its pleading to join issues with the claimant on this exhibit as the very expression of the parties’ terms and conditions of contract of employment, it is deemed to have admitted it and can neither be permitted to give evidence of it at the trial nor challenge same at the stage of address. Another ground of objection of the defendant to Exhibit C12 is that it is merely a statement of the policy and objectives of the defendant. The other is an unsigned acknowledgement in the last paragraph, page 89 of Exhibit C12. To the claimant, a critical consideration of Exhibit C12 will show that beyond the unchallenged averment in the claimant’s pleading that it is the embodiment of the terms of the parties’ employment contract and by implication admitted, the claimant also pleaded that the computation of his terminal benefits was based on the document. All the heads of entitlements contained in Exhibit C1 are also present in the document. Furthermore, the defendant also relied on this document to show that the claimant was not entitled to the payment of his complete package of remuneration for 2009 because he did not work for the entire year, referring to paragraph 4.2.6 of the defendant’s written address, under issue 2. The claimant then submitted that the defendant cannot probate and reprobate on the issue of Exhibit C12. It cannot in one breathe be impugning the document and in another be relying on it to buttress its case. He then urged the Court to discountenance all the contrary contentions of the defendant about the status of Exhibit C12 in the parties’ relationship. On the defendant’s specific contention that the claimant was not entitled to his entire package of remuneration for 2009 because he only worked for three months out of the 12 months service year, the claimant reproduced the relevant provision of section 3.8(ii), page 25 of Exhibit C12 as follows – ...The employee is expected to work for the period of notice unless unable to do so on health grounds or due to total or partial disability. To the claimant, the service of a year’s notice of retirement on the claimant by the defendant as unambiguously stipulated by Exhibit C12 is a pre-condition for the crystallization of the obligation of the claimant to serve the company for the entire notice period of one year. In other words, it was only after the defendant would have served the required year’s notice that the claimant would become obliged to serve it for the said notice period. That it bears stress that the above provision of Exhibit C12 was conceived and drafted by the defendant without any input from the claimant. The claimant then urged that the Court construes the document ‘fortissime contra preferentes’. And very importantly, that the sudden and inappropriate duration of notice of retirement served the claimant was a crippling disability within the contemplation of section of 3.8(ii) of Exhibit C12, referring to evidence of the defendant’s sole witness during cross-examination on 14th May 2013 when he said: “By Exhibit C9, the claimant was not required to come to work after the 21st of April 2009 “. According to the claimant, it is also instructive that it was not the claimant who terminated his own employment. It was the defendant who did so and consequently deprived the claimant of the entitlement to not only work and earn a year’s remuneration over the agreed notice period but also have sufficient time to prepare for life after retirement, referring to Severinsen v. EMTS Limited (supra) where this Court held at page 457 B – C as follows – But the question that needs to be asked and which is pertinent is whether it was the claimant who terminated his own contract or it was the defendant? In other words, is the fact of the non-expiration of the employment contract of the claimant attributable to him or to the defendant? Can a party who caused a state of affairs that denies another of his right be allowed to benefit there from? On the acknowledgement at the back of Exhibit C12, it is the claimant’s submission that it cannot operate or be construed to negative the status of the document as the embodiment of the terms and conditions of the parties’ employment contract and expropriate the benefits that inure therein to the claimant. For one, it is not in evidence that the claimant executed the said acknowledgement. We submit that it is only against an employee that executed it that the said provision can operate to negative the very solemn terms and conditions therein, urging the Court to so hold. For whatever it is worth, that the said acknowledgement at the back of Exhibit C12 is an arch type of unfair labour practice. This Court is given jurisdiction over unfair labour practices in section 254C of the 1999 Constitution of Nigeria, as amended. That this Court is a Court of justice and accordingly urged to reject all the defendant’s contentions against Exhibit C12 as the very expression of the terms and conditions of the parties’ contract. Exhibit C12 was the exclusive handiwork of the defendant. In the introductory portion, paragraph 4, page ii, personally signed by Mr. Remi Olowude OON, its Executive Vice Chairman, the very object of the Employee Handbook was encapsulated thus – This Employee Handbook contains the key corporate objectives and expectations of the company from all employees and summarizes the terms and conditions of service. as well as benefits which apply to every employee of IGI (emphasis is the claimant’s). It is the claimant’s submission that having articulated the terms and conditions of service of the claimant and its other employees in Exhibit C12 and at inception of their employment given copies of the same to them, it is unconscionable and inequitable to allow the defendant to rely on an unsigned acknowledgement in the last page to negative the noble intendment of the document. He commended to the Court its very sound and courageous decision in the case of Severinsen v. EMTS Limited (supra) wherein it quoted with admiration the dictum of the Supreme Court of India in the case of NTF Mills Limited v. The 2nd Punjab Tribunal, AIR 1957 SC 329 as follows – The Industrial Courts are to adjudicate on the disputes between the employers and their workmen, etc., and in the course of the said adjudication, they must determine the ‘rights’ and ‘wrong’ of the claim made and in so doing, they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by the reason of that elasticity or by the reason of application of the principles of justice, equity and good conscience. On issue (d) i.e. whether on the state of the parties’ pleadings and the evidence adduced at the trial, the claimant has established to the required standard that he is entitled to special and general damages for breach of contract of employment between him and the defendant, the claimant answered is in the positive. That it is settled that in order for a party to be entitled to the award of special damages, he must not only specifically plead it but must also strictly prove it with credible evidence, referring to UBN Plc v. Ajabule [2011] 18 NWLR (Pt. 1278) 152 at 183 C – D, where the Supreme Court defined special damages thus – Special damages are damages which the law does not infer from the nature of the act but which are exceptional in character. Special damages denote pecuniary issues which have crystallized in terms of cash and value before trial. That the reliefs the claimant seeks from this Court are categorized into two, special and general. The special damages are not only pleaded but also their particulars were specified. From his pleadings, the special damages are constituted by the remainder of unpaid remuneration for the 2008 service year, his accrued but unpaid out of station allowances/estacode/inconveniences allowances for the same 2008 when he was on international posting to Ghana and the remainder of his one year remuneration for the 2009 when he was wrongfully retired. The claimant then submitted that the above heads of reliefs were not only pleaded but satisfactorily accord with the definition of special damages. The said heads of reliefs indisputably crystallized even prior to the institution of this proceeding and, therefore, not subject to any conjecture. He, therefore, urged the Court to hold that he has successfully made out a claim for their award. The claimant went on that in Exhibits C1 and C12 he adduced cogent and credible evidence to substantiate the said damages. That the remainder of his claims constitute general damages. They are those damages that flowed consequentially from the defendant’s breach of its contract of employment with the claimant. They are at large and are awarded at the discretion of the Court. That the claimant’s claim for cost of this action and consequential damages of N3,000,000.00 fall under this category. The claimant then craved the Court to hold that he has made out a case for the award of special and general damages. In conclusion, the claimant prayed that he is entitled to judgment as par his reliefs in the statement of facts because he has not only established his entitlement to his pre-retirement accrued remunerations and allowances but also satisfactorily made out a case for wrongful retirement and breach of his contract of employment with the defendant. The defendant reacted and filed a reply on points of law. To the defendant, the submissions contained in the claimant’s final written address are contrary to the evidence in the course of trial and a misstatement of what transpired in Court in the course of examination of the claimant (CW). That the claimant stated under cross-examination that he received and accepted unconditionally Exhibits D1, D2(a), D2(b) and D2(c) and stated that he understood them to be his full and final entitlements. But this was out-rightly denied in the claimant’s final written address in paragraph 6.3 thereby misrepresenting the true position and casting doubts on the records of the Court of the proceedings of 12th December 2012. We therefore refer the Court to the records of proceedings for 12th December 2012. The defendant continued that the claimant in his submission in his final written address sought to twist and fine tune the true facts of the case by his total reliance on the Employee Handbook (Exhibit C12), a document which was never in issue at the time the relationship began and totally discountenancing the letter of appointment (Exhibit C1). The defendant then proceeded to react on the issue whether the terms of the contract of employment between the claimant and the defendant are contained in the letter of employment or the Employee handbook. The claimant had argued that the relationship between him and the defendant is governed largely by the Employee Handbook (Exhibit C12) and on the basis of which his claims against the defendant are built upon. The claimant further stated that the defendant never made any averment in its pleadings on whether or not the Employee Handbook was the document containing the terms and conditions of the contract of employment and cited the provisions of the Evidence Act as well as case law authorities to buttress his point. To the defendant, it would be tantamount to conducting a surgery on the facts of the case by the claimant in order to change them to his benefit where it was never admitted by the defendant in any way and was indeed controverted by virtue of the amended statement of defence in paragraphs 6 and 20 and in the course of cross-examination of DW that the Employee Handbook was never the document stipulating the terms of the contract between the claimant and the defendant. The defendant then called on the Court to kindly peruse the said Employee Handbook (Exhibit C12) particularly in page 89, paragraph 4, where it was expressly stated that all employees of the defendant understand that the Employee Handbook is not the letter of employment. The defendant then referred the Court to paragraphs 6 and 20 of its amended statement of defence and urged the Court to decide that the defendant has by necessary implication denied the averments of the claimant in Exhibit C12. Consequently, it submitted that by the said paragraphs 6 and 20 whilst also taking all the preceding and succeeding paragraphs together and not reading them in isolation and in fact whilst considering the totality of the amended statement of defence it is crystal clear that the defendant has explicitly denied all averments in the statement of facts of the claimant. On the issue of admission raised by the claimant in his final written address that the denial by the defendant in its pleadings of the Employee Handbook as being the contract of employment was an outright admission and that evidence adduced as to facts not pleaded goes to no issue, the defendant reiterated the fact that the totality of the defendant’s claims as embedded in its pleadings (amended statement of defence) goes to show that this very fact was indeed disputed. The defendant contended that the full entitlements of the claimant were calculated to him as stated and stipulated in his letter of promotion (Exhibit C1). The defendant also contended that the breakdown of the remuneration were as stated in the said Exhibit C1 without reference whatsoever to the Employee Handbook (Exhibit C12), referring to paragraph 6 of the amended statement of defence. To the defendant, it would be out of place and indeed defeat reason for the claimant to state otherwise in a bid to persuade the Court to accede to his claims which in the defendant’s opinion is gold-digging. The defendant then submitted that it has not by any means admitted that the Employee Handbook is the document containing the terms binding both parties. Flowing from this point, the defendant submitted that the oral testimony of the DW1 (Mr. Sam Iloabuchi) is in furtherance to the defendant’s claims in its amended statement of defence. That he stated under cross-examination that the relationship between the claimant and the defendant is regulated by the letter of employment and not the Employee Handbook. He also stated further that when the Employee Handbook was introduced at the time, it was stood down for review by the Management because of its contents. On the whole, the defendant submitted that what an employee who pleads that his contract of employment was wrongfully terminated must show is his contract of employment or whether his entitlements were not paid to him. That this the claimant has not satisfactorily shown to the Court. That the claimant would be seen to be playing the role of the judge in his own case by stating erroneously that the defendant admitted that the Employee Handbook is the contract of employment where from the pleadings and evidence adduced it was crystal clear that this issue was disputed. The defendant went on that if the claimant contends so strongly that the Employee Handbook is the contract of employment, what then becomes of the letter of employment Exhibit C1? The defendant then urged the Court to consider that even assuming without conceding that there was no specific denial by the defendant of Exhibit C12, the claimant cannot succeed in his claims because he has failed completely to show the Court how his claims or reliefs are provided for by Exhibit C12. That the claimant has failed to refer the Court to the provision of Exhibit C12 that establish his claim for – a) Outstanding estacode for 287 days at the rate of $300 US Dollars totalling $86,100 USD. b) Outstanding and unpaid benefits in kind/monetization for the service year 2008 of unpaid general maintenance/vehicle maintenance/DSTV maintenance of N1,052,000.00, unpaid driver of N450,000.00, unpaid passage of N480,000.00 and unpaid generator of N600,000.00 – all totalling N2,582,000.00. c) Outstanding and unpaid benefit in kind/monetization for the remainder of the 2009 service year inclusive of 9 months basic income, leave allowance and other allowances and benefits in kind totalling N13,225,500.00. d) General damages of N300,000.00 for breach of contract of employment between the claimant and defendant. The defendant then reiterated that whilst Exhibit C12 provides for a one-year retirement notice period it did not stipulate a penalty for failure to give a one-year retirement notice period. That the claimant by his admission worked for three (3) months only out of the one year and was paid for the three (3) months (aside from other terminal pay that he received). That he failed to situate his claim for unpaid emolument and allowances for the nine (9) months that he did not work within the provision of Exhibit C12. Therefore, his reliance on Exhibit C12 (whether or not it was specifically denied by the defendant) cannot stand or avail him. The defendant concluded by asserting that the claimant’s submission as to the Employee Handbook being the contract of employment is baseless. That the claimant has brought in the issue of admission by the defendant in order to garnish his case and mislead the Court. The defendant then urged the Court to discountenance the claims of the claimant and hold that the claimant has not proved his case against the defendant as to entitle him to damages and reliefs sought. I heard learned counsel and considered all the processions filed in this matter. The issue before the Court is simply whether the claimant is entitled to the reliefs he claims. In considering the merit of the case, however, I must state that the defendant’s reply on points of law is anything but a reply on points of law, in the true sense of the word. Throughout the said reply on points of law, the defendant did not cite even a single piece of law (whether case law or statute law). It ended up more a rehearse of its final written address. A reply on points of law is meant to contest legal principles relied upon or restated by the opposing party. Where the reply on points of law rehearses factual statements with no supporting legal authorities, then it must be read to have gone beyond the pale. And that is what the defendant’s reply on points of law just did. That point made, I need to resolve the status and import of Exhibits C12 and C15. Exhibit C15 simply catalogues different rates of estacode (in terms of old rate, rate for Africa and rate for other continents) for categories of offices. It is stated to be for staff for the year 2008. The date and time, “29-01-08 7:05PM”, is written below it. There is an endorsed signature on it, but it does not state whose signature it is. The source of Exhibit C15 is not disclosed and no relationship between it and the defendant was established. In consequence, I cannot accord it any weight or probative value for purposes of this judgment. Regarding Exhibit C12, in paragraphs 4.1.37 – 4.1.44 of its written address, the defendant had contended that the Employee Handbook (Exhibit C12) which the claimant sought to give a lot of credence to is not the contract of employment by any standard but just the Employee Handbook which is simply a general guide to the goals, policies, practices and expectations of the defendant company. To the defendant, in computing what is due to the claimant, it took into consideration only the provisions and terms as stated in the contract of employment (Exhibit C1, letter of promotion) and not the Employee Handbook (Exhibit C12). Additionally, in paragraph 1.5 of its reply on points of law, the defendant complained that the claimant in his submission in his final written address sought to twist and fine tune the true facts of the case by his total reliance on the Employee Handbook (Exhibit C12), a document which was never in issue at the time the relationship began and hence totally discountenancing the letter of appointment (Exhibit C1). The basis for the defendant’s contention is the provision of paragraph 4 at page 89 of the Employee Handbook, which reads – I understand that The Company Employee Handbook is not a Contract of Employment and should not be deemed as such, and that I am an employee at will. The defendant then continued its argument on this issue with the assertion in paragraph 4.2.17 of its written address that DW under cross-examination had stated that the relationship between the claimant and the defendant is regulated by the letter of employment and not the Employee Handbook. I must first of all note here that the contract of employment of the claimant was not frontloaded even though the claimant in paragraph 19 of his reply to the defendant’s statement of defence talked of “the letter of appointment of November 2007”, presumably referring to Exhibit C1. Exhibit C1 is merely a letter of promotion. All through its argument, the defendant also kept referring to Exhibit C1 as if it is the main contract of employment between it and the claimant. In fact, in paragraph 1.5 of its reply on points of law, the defendant described Exhibit C1 as “the Letter of Appointment”; and in paragraph 2.1.14, as “letter of employment”. I note here that in Ladipo v. Chevron (Nig.) Ltd [2005] 1 NWLR (Pt. 907) 277 CA, it was held that what document contains the terms of contract of employment is a question of fact. That where more than a single document provide for the terms, such documents must be construed jointly in order to have the correct and total account of what the terms of the contract are. Once the terms are ascertained, it becomes mandatory for the Court to ensure that parties to the contract have enjoyed their freedom of contract. The sanctity of such contract would only be enforced if questions in respect thereof are resolved by giving effect to those terms contained in the document(s) in respect of which constitute the contract. In this regard, Exhibit C1 no doubt does matter as one such document that provides for the terms of the contract of employment between the parties in this suit. I agree with the claimant’s submission that nowhere in the Court’s record did DW make the assertion that the relationship between the claimant and the defendant is regulated by the letter of employment and not the Employee Handbook. The submission of the defendant in that regard is accordingly misleading. Secondly, I also agree with the claimant that, like DW himself admitted that his evidence regarding the fact that the Employee Handbook was suspended in its application given unresolved issues was not pleaded, issues anchored thereon cannot be admissible given the Supreme Court authority of Edward Okwejiminor v. G. Gbakeji and Nigerian Bottling Company Plc (supra). This means that the evidence that Exhibit C12 is a suspended document, as far as the defendant is concerned, is unfounded (having not been pleaded) and so cannot be used in this case. However, all of this aside, Exhibit C12 was tendered by the claimant; and in it is the issue of interpreting paragraph 4 at page 89 quoted earlier. It is to this that I must turn. Page 89 of Exhibit C12 (the Employee Handbook) is the acknowledgment page which requires the acknowledgment of the terms of the Handbook and signature of the claimant. There is no such signature of the claimant on Exhibit C12; and the defendant did not frontload its version of Exhibit C12 indicating that the claimant acknowledged and signed the Handbook. Secondly, the acknowledgement of Exhibit C12 indicates that the claimant received and read it as a Handbook that outlines the goals, benefits and expectations of the company as well as the claimant’s “responsibilities as an employee”. It then goes on to state that by his signature below (which signature was not given), the claimant accepts and agrees “to comply with the information contained in the Employee Handbook provided to me by the company”. It is after all of this that the Handbook states that it (the Handbook) “is not a Contract of Employment and should not be deemed as such” and that the claimant is “an employee at will”. In Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited, incidentally cited by both parties but for different reasons, this Court had noted the disproportionate disparity in the bargaining power between the employer and the employee in the following words – It must be noted that the termination of the claimant’s employment and the drafting of the release and discharge certificate were all at the behest of the defendant. This means that the claimant was presented with these two documents as a fait accompli. The balance of bargaining power in the relationship between an employer and an employee tilts in favour of the employer, which is what was exhibited in the instant case. The defendant did not sit with the claimant to draft the release and discharge certificate. So the only way the claimant could indicate his reservation to the contents of the document was to sign under protest in the manner that he did. This is the only course open to him. On this issue, therefore, we hereby hold that the claimant did not waive his right to bonus as the defendant would want the Court to believe. Having to sign the release and discharge certificate in the manner that he did, the claimant thereby signed under protest indicating he had reservation as to the contents of the said release and discharge certificate. Exhibit C12 in the instant case is a reminder of the interplay of the bargaining power complained of in Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited. When the defendant earlier cited Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited, it did not note the reservation of the Court regarding the use of disproportionate bargaining power by an employer. Regarding Exhibit C12, the fact is that by the argument of the defendant, the defendant ties the claimant to company goals, policies, benefits and expectations as well as employee responsibilities, but offers nothing to the claimant as an employee. The defendant is an insurance company. Reminiscent in the insurance business, it is accustomed to taking and asking for but not in giving out. For how else can one explain the fact that the defendant would charge the claimant to be responsive and responsible in terms of Exhibit C12 but turn round to say that Exhibit is not a contract of employment? If Exhibit C12 is not a contract of employment, on what basis are obligations charged on the claimant then? This thing about approbating and reprobating by the defendant in Exhibit C12 cannot stand. I indicated earlier that Ladipo v. Chevron (Nig.) Ltd held that what document contains the terms of contract of employment is a question of fact. And as such more than a single document can provide for the terms of the contract of employment; in which case such documents must be construed jointly in order to have the correct and total account of what the terms of the contract are. In view of this authority, I hold that Exhibit C12, in providing in paragraph 1.10 of Exhibit C12 that the Handbook itself “contains general conditions applicable to all employees of the company” and then providing details of the terms and conditions in Chapters 2 – 11, it is and remains part and parcel of the contract of employment between the claimant and the defendant. In any event, in paragraphs 11 and 16 of the statement of facts, the claimant made it clear that the Employee Handbook defined his rights and obligations as of other employees in their relationship with the defendant. In responding to paragraph 11 of the statement of facts, the defendant did not deny the assertion by the claimant that the Employee Handbook defined his rights and obligations. The reference by the defendant in paragraphs 2.1.3 and 2.1.5 (as well as 2.1.7) of its reply on points of law to paragraphs 6 and 20 of its amended statement of defence as the paragraphs wherein it controverted the fact of the Employee Handbook defining the terms and conditions of the contract of employment between the parties, cannot be tenable. In paragraph 6 of the amended statement of defence the defendant merely talked about the claimant’s remuneration and benefits package as found in the letter of promotion dated November 30, 2007. And paragraph 20 provides that in response to paragraphs 10, 11, 12 and 13 of the statement of fact, the defendant avers that the defendant’s letter dated 20th January 2009 was a confirmation of prior discussions between the claimant and the defendant’s Director of Human Resources and Admin. Paragraphs 6 and 20 of the amended statement of defence cannot, therefore, be read as specifically denying that the Employee Handbook contains the terms and conditions of the employment of the claimant by the defendant. Even in responding to paragraph 16, the defendant in paragraph 33 of its amended statement of defence merely denied it and put the claimant to the strictest proof of same. A plethora of cases have held that a traverse, for instance, that the “defendant denies paragraph 21 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein”, does not amount to denial for the purpose of raising an issue for trial. See Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pr. 1) 460, UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288, Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1. LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620, Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170, Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214, Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Ideayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359. In any case, the defendant, as argued by the claimant, also relied on Exhibit C12 in advancing arguments relating to its defence. See paragraph 4.2.6 of the defendant’s written address. On these scores, Exhibit C12 is deemed admitted by the defendant as defining the rights and obligations of the employees of the defendant including the claimant. Exhibit C12 shall accordingly be used as such in this judgment. I complained earlier about attempts at misleading the Court. The defendant laid a similar charge against the claimant. In paragraph 1.4 of its reply on points of law, the defendant had asserted that the claimant stated under cross-examination that he received and accepted unconditionally Exhibits D1, D2(a), D2(b) and D2(c) stating that he understood them to be his full and final entitlements. But that the claimant out-rightly denied this in his final written address in paragraph 6.3 thereby misrepresenting the true position and casting doubts on the records of the Court of the proceedings of 12th December 2012. The defendant then referred the Court to the records of proceedings for 12th December 2012. To determine the veracity or otherwise of this assertion, it would be necessary to reproduce from the Court’s record of proceedings what transpired on 12th December 2012 and what especially Exhibit D2(a) states. On 12th December 2012, the claimant as CW testified under cross-examination as follows – I confirm that the handwriting and signature on Exhibits D1 and D2(a) are mine. Yes, when l received Exhibit D2(a), (b) and (c), l understood it to mean that the dependant’s computation of my net entitlement was N4,594,347.00 due to me. Yes, l received and cleared a cheque of N5,344,347.30 as per Exhibit D2(c). No, l did not complain to the defendant that l received a cheque for an amount in excess of the defendant’s computation of my net entitlement. I confirm that in computing my net entitlement as per Exhibit D2(b) an ex gratia amount of N5,600,000.00 was calculated and added to my net entitlement. Yes, the difference of N750.000.00 is not the ex gratia award talked of in para. 3.9 of Exh. C12. Exhibit D1 is a copy of a cheque dated 29/4/2009. In handwriting, it has the endorsement of the claimant thus: “collected by me P. E. Aimiosior”; and it is signed as such by the claimant. Exhibit D2(b) is an attached breakdown of the calculation of the sum paid to the claimant vide Exhibit D2(a). Exhibit D2(c) is a copy of a cheque dated 06/05/09. So for present purposes, the key document is Exhibit D2(a) dated May 6, 2009 and titled “Final Entitlement”, which states – Find attached our Skye Bank cheque No. 10003749 for the sum of N5,344,347.30 (Five million, three hundred and forty-four thousand, three hundred and forty-seven naira, thirty kobo) only. This amount represents your final entitlement upon separation from this company. Find attached the breakdown of the calculation. Kindly acknowledge receipt. The claimant then signed it on 6/5/09 with the words: “Cheque collected by me, P. E. Aimiosior”. Now the defendant argues that by all of this, the claimant stated under cross-examination that he received and accepted unconditionally Exhibits D1, D2(a), D2(b) and D2(c) stating that he understood them to be his full and final entitlements only to turn round and out-rightly deny this in his final written address thereby misrepresenting the true position and casting doubts on the Court’s record of proceedings. Is this actually the case? This remains the question. Under cross-examination, the claimant only confirmed that the handwriting and signature on Exhibits D1 and D2(a) are his; and that when he received Exhibits D2(a), D2(b) and D2(c), he understood it to mean that the defendant’s computation of his net entitlement was N4,594,347.00 due to him. I cannot find or read anywhere where the claimant said he received and accepted unconditionally Exhibits D1, D2(a), D2(b) and D2(c) and that he understood them to be his full and final entitlements. Exhibit D2(a) itself in the second paragraph only talks of the sum representing the claimant’s “final entitlement”. It does not talk of “full and final entitlement”. In the third paragraph, Exhibit D2(a) merely asked the claimant to “kindly acknowledge receipt”. It did not ask the claimant to “accept” the sum paid as “full and final payment” of his entitlements; only to “acknowledge receipt”. And the claimant simply “collected” it. How then can any of this be that the claimant accepted unconditionally Exhibits D1, D2(a), D2(b) and D2(c) and that he understood them to be his full and final entitlements as argued by the defendant? There is a world of difference between acknowledging receipt of a sum and accepting that sum as full and final settlement of a claim. I accordingly find and hold that from the evidence before the Court, the claimant cannot be said to have “accepted unconditionally” Exhibits D1, D2(a), D2(b) and D2(c) or that he understood them to be his “full and final entitlements” as argued by the defendant. It now remains to consider whether the claimant has proved the reliefs he seeks from the Court. Relief 1 is for – A declaration that he was entitled to a minimum retirement notice of not less than one year, with full remuneration and other employee entitlements befitting his status as a Director and that the service by the defendant of a duration of notice of less than three months as contained in its letter dated the 20th of January 2009 and the attendant payment of barely three months remuneration for the 2009 service year is a breach of the relevant provisions of the defendant’s Employee Handbook which clearly defines not only the obligations but also benefits and/or entitlements of its every employee. The case of the claimant here is that by Exhibit C12, in retiring him, the defendant should have given him one year’s notice or pay him in lieu of notice. In paragraphs 11.3 and 11.4 of his written address, the claimant had relied on clause 5.7 of the Employee Handbook, the provision dealing with termination of employment. The said section provides that termination of employment can either be initiated by the company or the employee with either party giving the required notice period or payment in lieu of notice. To the claimant then, it follows that in order to properly retire or terminate his employment, the defendant was required to give him one year notice or pay him his entire package of his remuneration for the year, in lieu of notice. Instead, the defendant gave him only three months’ notice as can be seen in Exhibit C9. The problem I have with the claimant’s argument here is that he seems to equate termination with retirement. In other words, that they are necessarily the same. I do not think the claimant is right in such a postulation. That they two are different is reflected in the fact that they are separately provided for even by Exhibit C12. Clause 3.8 dealing with retirement comes under the Chapter 3 which deals with separation generally. Clause 5.7 which deals with termination comes under Chapter 5 dealing with disciplinary procedure generally. So one can hazard the guess that while retirement is not tainted with issue of discipline, that is not the case with termination. In any event, clause 3.8 provides as follows – (i) An employee may retire when he/she has reached the company’s retirement age of 50 years, or has put minimum of 5 years of active service, whichever is earlier. (ii) The company will give a one year notice to employees who are due to be retired from the company’s services. The employee is expected to work for the period of notice unless unable to do so on health grounds or due to total or partial disability. (iii) An employee may retire voluntarily after completing at least 5 years of active service with the company. Such an employee who wishes to retire before the normal retirement age or service year should give three months or two months or one month notice of his intention to retire (depending on his/her grade/designation) and will be expected to serve the period of notice or pay the correspondent basic salary in-lieu. (iv) The company retains the option to extend the employment contract (with mutual consent) of the employee or to request early retirement on grounds of health or other reasonable grounds. The thing to note about clause 3.8 is that while the employer is enjoined to give one year’s notice if it is retiring an employee, the employee seeking to retire is only required to give the employer three months or two months or one month’s notice as the case may be. Secondly, while the employee may make payment in lieu of notice in the case of him seeking to retire, no such provision was made when it is the employer who is retiring the employee. All of this appears deliberate; yet on the principle of reciprocity, clause 3.8(ii) ought to have had a provision permitting payment in lieu of notice. Even the principle of reciprocity may also require that clause 3.8(iii) should have provided for an equivalent one year notice on the part of the employee seeking to retire and not the three, two or one month that it provided. So which of this principle of reciprocity should the Court take as reflecting the intention of the parties? Here, I may have to rely on the broad principle of labour law which holds that labour law was intended to safeguard the interest of the employee given his/her inferior bargaining power relative to the employer. In providing for three, two or one month’s notice on the part of an employee seeking to retire while retaining one year for the employer seeking to retire an employee, clause 3.8 itself exemplifies this divergent bargaining power by giving employees a shorter period of notice while giving the employer a longer period of notice. This being the case, the parties must be read as intending that when clause 3.8(ii) provided that an employer is to give one year’s notice when retiring an employee, in accord with established labour law norms, there is the reciprocal right to pay one year’s basis salary (clause 3.8(iii) talks of basic salary in providing for payment in lieu of notice) in lieu of notice. I so find and hold. I held earlier that Exhibit C12 is one of the documents regulating the contract of employment between the parties and that while the defendant is to give one year’s notice when retiring employees, there is the corresponding alternative of paying one year’s pay in lieu of notice. Since clause 3.8(iii) talks of the employee paying the correspondent basic salary in-lieu of notice, it means that the employer too can only pay one year’s basic pay in lieu of notice when retiring employees. The parties are agreed that the defendant gave the claimant only three months’ notice, not one year’s notice as enjoined by clause 3.8.(ii) of Exhibit C12. By this act, the defendant breached Exhibit C12, one of the documents regulating the conditions of employment. Being in breach of the contract of employment between the parties, the claimant becomes thereby entitled to damages, which by the authorities, is the amount he would be due in terms of payment in lieu of notice. Exhibit C1 puts the annual basic salary of the claimant as N2,800,000.00. This is what the defendant should have paid the claimant in lieu of notice. I, therefore, find and hold that the claimant has established his claim for relief 1 but only in terms of being entitled to payment of N2,800.000.00 annual basic salary in lieu of notice. Relief 2 is for – The total sum of $86,100.00 (Eighty-Six Thousand, One Hundred United States Dollars) only representing accrued, outstanding but yet unpaid International Out-Station Allowances (IOSA) for a cumulative period of 287 days in 2008, at the official rate of $300 Dollar per day, while on international posting by the defendant as the Managing Director of its Ghanaian subsidiary, IGI Ghana Limited. In evidence, DW had testified under cross-examination that he was aware that the claimant, even as at January 2009, was still complaining about his outstanding out of station allowance. The claimant accordingly had argued that by Exhibit C7 written by Mrs. Folasade Adetiba, the defendant’s Deputy Managing Director, she thereby acknowledged the entitlement of the claimant to out of station allowance but only pleaded for his patience and understanding. In Exhibit C7, an email written by Sade Adetiba to the claimant, it is provided amongst others thus – As I informed you when we discussed, HR has presented a comprehensive package for mgt approval; the policy will deal with the issues that affect your benefits when you are on external posting. The EVC assured me yesterday that we will receive his approval for the implementation, perhaps today. Without that approval, DHRA cannot process a refund or pay the dues. Pls bear with mgt. This email (Exhibit C7) is that in which the defendant acknowledged an entitlement to the claimant and for which it was pleaded for him to be patient and understanding. The mail was very categorical that unless the EVC approves, there can be no payment of any dues. In other words, unless the EVC approves, there is no policy dealing with issues that affect the claimant’s benefits when he was on external posting. Has this Court been shown the EVC approval? No! The claimant had argued that (estacode) is meant to address the officially acknowledged general inconveniences ordinarily associated with such transfers and permanent relocation to another country. For the first one month of his stay at Ghana, the defendant approved and paid him an out of station allowance of $300 per night. He subsequently moved into the defendant’s guest house where he stayed for the remainder of 10 months, totalling 287 days. That his relocation to the defendant’s said guest house did not in any way operate to disentitle him to the agreed out of station allowances. The provision of accommodation was only an aspect of the inconveniences the said allowance was aimed at addressing. As acknowledged by the claimant, the payment of estacode to the claimant stopped when the claimant moved into the defendant’s guesthouse. The claimant himself in acknowledging staying in the defendant’s guesthouse had argued that his occupation of the defendant’s guesthouse for the period he is claiming estacode/out of station allowances, would naturally result in a commensurate diminution in the amount of out of station allowance he was entitled to. That as he has established his contractual right to the payment of out of station allowances, he urged the Court to exercise its discretion by awarding him a proportionate sum as estacode per night, using the $300 US Dollars earlier paid as a benchmark. He referred to the decision of this Court in the case of Kurt Severinsen v. Emerging Markets Telecommunication Services Limited (supra) where though the claimant claimed the sum of $99,000.00 US Dollars as accrued contractual bonuses, the Court awarded him only $66,000 which he was only able to prove. The thing that the claimant fails to understand is that in Kurt Severinsen v. Emerging Markets Telecommunication Services Limited the sum of $66,000 was proved. It was not given by the Court on its own or as a proportionate sum in regards to the higher sum of $99,000.00 claimed. In the instant case, I agree with the defendant that the claimant did not prove the claim for estacode for the period claimed. Exhibit C7 is pretty clear that the policy which would have set out the entitlements of the claimant in that regard never saw the light of day; or at least its approval by the EVC was not secured or shown to the Court. In any event, under cross-examination, the claimant testified that there is no provision as to Estacode in Exhibit C12 (the Employee Handbook); and that he has a document from the defendant which stipulates his Estacode entitlement for the entire duration of his stay in Ghana, referring to Exhibit C15 (the document in respect of which I had earlier ruled that I cannot accord any weight or probative value to). I cannot, therefore, find for the claimant on this claim. The claimant has accordingly not proved relief 2. The claim for relief 2 accordingly fails and so is dismissed. Relief 3 is for – The total sum of N15,807,500.00 (Fifteen Million, Eight Hundred and Seven Thousand, Five Hundred Naira only) being accrued, outstanding but yet unpaid balance of his remunerations, allowances and/or entitlements, in line with his remuneration and benefits package as a Director in the defendant for the service years 2008 and 2009 The claimant then particularised this sum of N15,807,500.00 into outstanding and unpaid benefits in kind/monetization for the service year 2008 and those for 2009. The argument of the defendant here is that a good deal of these sums are locational and provided in kind, not cash; and because the claimant was not in Nigeria, he cannot be given them. The claimant thinks otherwise. For the year 2008, the claimant is claiming for – i) Unpaid G. maint/vehicle maint/DSTV maint - N1,052,000.00 ii) Unpaid driver - N 450,000.00 iii) Unpaid passage - N 480,000.00 iv) Unpaid generator - N 600,000.00 Total = N2,582.000.00 Exhibit C1 makes provision for G.Maint./Vehicle Maint./DSTV Maint., Driver and Generator; I did not see any provision for passage in Exhibit C1. The claimant did not refer the Court to any other document that entitles him to passage. In University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478 the Supreme Court had cautioned that a claim for salary, allowances and the like without any particularisation as to how the sum was earned and arrived at makes such a claim vague. Nowhere in Exhibit C1 is it stated that these benefits in kind are locational (a fact confirmed by DW when under cross-examination he testified that Exhibit C1 is not specific as to which non-cash benefits are locational); and the defendant did not show to this Court any document that states so. I consequently find for the claimant regarding these benefits for the year 2008 excluding of course the claim for passage. This means that the claimant is entitled from the defendant for the sum of N2,102,000.00; and I so find and hold. Regarding the claim for year 2009, the evidence before the Court is that the defendant did work all through the year; and I have already awarded the annual basic salary in lieu of notice. This award takes out any other claim for the year 2009; and I so find and hold. Relief 4 is for – General damages of N3,000,000.00 (Three Million Naira) only for breach of the contract of employment between the claimant and the defendant. I have not been shown any reason why I should award this sum. The statement of the claimant under cross-examination that for the 9 months that he did not work for the company, although he was not ill, he was, however, disabled, which disability was neither mental nor physical, is rather unhelpful as proof for present purposes. Even the later testimony of the claimant that he did not inform the defendant that the 9 months he did not work, and for which he is presently claiming, was because he could not work on health grounds or on grounds of total or partial disability, is equally unhelpful. Even when the claimant clarified his testimony under re-examination that the disability he talked of is the employer barring him from coming to work as per Exhibits C9 and C10 still does not help his claim for general damages. The relief according fails and so is hereby dismissed. Relief 5 is a claim for pre- and post-judgment interest on the sums claimed. This Court does not grant pre-judgment interest. See Kurt Severinsen v. Emerging Markets Telecommunication Services Limited (supra), Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd unreported Suit No. NICN/LA/48/2012 the judgment of which was delivered on March 26, 2014, Miss Odiete Hope Ogaga v. Jopa Energy Ltd unreported Suit No. NICN/LA/408/2012 the judgment of which was delivered on March 26, 2014 and Chief J. A. Emasealu v. Akoko-Edo Local Government, Edo State & anor unreported Suit No. NIC/LA/31/2011 the judgment of which was delivered on May 13, 2014. However, by Order 21 Rule 4 of the NIC Rules 2007, this Court at the time of delivering judgment or making an order may direct the time within which payment of a judgment sum is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment. Relief 6 is for the cost of this action assessed at N3,000,000.00 (Three Million Naira) only. Exhibit C14(a) is a letter from the claimant’s counsel to him charging him N3,000,000.00 as counsel’s fee to prosecute this action. Exhibit C14(b) is a letter from the claimant to his counsel accepting the counsel’s fee charged. But it is not on record that any amount has been paid in that regard. So I cannot use Exhibits C14(a) and C14(b) in considering the question of cost in this case. On the whole, and for the avoidance of doubt, the claimant’s case succeeds only in part in the following terms – 1. It is hereby declared that the claimant was entitled to a minimum retirement notice of not less than one year and the service by the defendant of a duration of notice of less than three months as contained in its letter dated the 20th of January 2009 is a breach of clause 3.8(ii) of the defendant’s Employee Handbook which clearly defines not only the obligations but also benefits and/or entitlements of its every employee. 2. The defendant is hereby ordered to pay to the claimant the sum of Two Million, Eight Hundred Thousand Naira (N2,800.000.00) only being the annual basic salary due to the claimant in lieu of notice in terms of the retirement of the claimant. 3. The defendant is hereby ordered to pay to the claimant the sum of Two Million, One Hundred and Two Thousand Naira (N2,102,000.00) being the value of benefits in kind in terms of G.Maint./Vehicle Maint./DSTV Maint., Driver and Generator for the year 2008. 4. The said sums of N2,800,000.00 and N2,102,000.00 shall be paid within 30 days of this judgment; failing which they shall attract interest at the rate of 10% per annum until liquidated. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip