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By his General Form of Complaint filed on 20th July, 2012 the claimant claim against the defendants as follows: 1. The total sum of N24,424,726.10 (Twenty Four Million, Four Hundred and Twenty Four Thousand, Seven Hundred and Twenty Six Naira, Ten Kobo) being special and general damages as follows: (a) Salary in lieu of Notice for December, 2009 - N118,673.26 (b) Salary for the month of November 2009 - N78,552.83 (c) Unutilized leave days (86 days) 1994 to 2009 - N576,893.86 (d) Pension (Staff) - N59,128.17 (e) Pension (Bank) - N295,640.85 (f) Profit Sharing (2009) - N92,500.00 (g) Credit balance on Savings Acct No. 4090103387 - N190.08 (h) Two (2) years gross separation entitlement made Up of two years total income - N2,848,158.24 (i) Compassionate Gift (Bereaved Staff) - N50,000.00 2. An order of court directing the defendants to produce the tax clearance certificate of the claimant for income tax and receipts for pension fund contribution deducted throughout his employment, or in the alternative an order that the defendants pay over to the claimant all such monies deducted and not remitted to the tax and pension authorities throughout his employment. 3. General Damages: The claimant claims general damages in the sum of N20,000,000.00 (Twenty Million Naira) for the hardship and psychological trauma suffered as a result of the 1st defendant’s refusal to pay his salaries and retirement benefits. The complaint is accompanied by Statement of Facts, List of Witnesses, Witness Written Statement on Oath and List of Document to be relied upon at trial. The defendants responded by filing their Memorandum of Appearance, Statement of Defence, List of Witness, Defendant’s Witness Statement on Oath and List of Document dated and filed on 13th September, 2012. The claimant further filed a Reply to Defendants’ Statement of Defence dated and filed on 18th October, 2012. The case of the claimant is that he resides with his friend Mr. Abdulahi Haruna Mallam at Ikota Villa Estate, Ajah, Lagos having been thrown out from his former place of residence at Road 25, Block 5, House 2, Ikota Villa Estate, Lekki, Lagos on 11th April, 2011 for his inability to pay his rent as a result of the 1st defendant’s failure to pay his two months salaries and retirement entitlements since 2009. That he was offered employment by the 1st defendant on the 31st October, 1994. That the 2nd defendant is a subsidiary of the 1st defendant carrying on business in stocks and securities on the floor of the Nigerian Stock Exchange. He pleaded that from October, 1994 when he was employed by the 1st defendant at various capacities such as Utility Staff, Info-Tech Scanning, Clearing Clerk/CBN Runner and System Administrator. That throughout the period of his employment the 1st defendant was deducting his income tax, pension fund contribution and NHF Contribution at source but refused to avail him with his income tax certificates from 2004 to 2009, receipts for the pension fund contribution and passbook for the NHF Contribution. That he was one of the pioneer staff of the 1st defendant and diligently served the 1st defendant for fifteen years and two months before retiring in 2009. That via his retirement letter of 22nd November, 2009 he gave the 1st defendant one month notice of his retirement as contained in the organization’s employment hand out effective 24th November, 2009 to 24th December, 2009 and expressed his appreciation to the management and staff of the 1st defendant for the warmth and brotherly relationship throughout his period of service as well as for the opportunity given to him to serve. The claimant further pleaded that the 1st defendant on receipt of the one month notice of his retirement subsequently refused him access to the 1st defendant office premises and his duty post at Ikota V.G.C Branch, and has also refused to pay his salaries for the months of November and December, 2009. That the 1st defendant has a standing policy any retiring staff of the 1st defendant who served for 10 years and above is entitled to receive two years gross payment known as separation entitlement consisting of two years total income. That the 1st defendant continued to pay two years gross separation entitlements to staff who retired after 10 years of service. He relied on 1st defendant’s Internal Memos dated 14th February 2005, 1st March 2005 and 23rd June, 2006 approving payment of separation entitlement to retiring staff. He further pleaded that at the period of his letter of retirement in November, 2009 he was entitled to the sum of N800,304.84 comprising his 86 days unutilized leave (converted to cash) from 1994 to 2009, credit balance in his Savings Account No. 4090103387, salary for November, 2009 and salary in lieu of notice for December, 2009, made up as follows: (a) Salary in lieu of notice (December 2009) - N118,673.26 (b) Salary for the month of November, 2009 - N78,552.83 (c) Unutilized leave days 1994/1996 – 20 days - N142,136.72 (d) Unutilized leave days 1996/1997 – 11 days - N78,389.38 (e) Unutilized leave days 1997/1998 – 5 days - N35,534.15 (f) Unutilized leave days 1998/1999 – 5 days - N35,534.15 (g) Unutilized leave days 1999/2000 – 10 days - N71,273.07 (h) Unutilized leave days 2000/2001 – 5 days - N35,534.15 (i) Unutilized leave days 2001/2002 – 5 days - N35,534.15 (j) Unutilized leave days 2002/2003 – 10 days - N71, 263.07 (k) Unutilized leave days 2003/2004 – 5 days - N35,534.15 (l) Unutilized leave days 2007/2008 – 5 days - N35,538.15 (m) Unutilized leave days 2008/2009 – 5 days - N35,538.15 (n) Balance on Savings Account No. 4090103387 - N190.08 Total N809,304.08 The claimant further pleaded that following his retirement from the 1st defendant in 2009 his retirement entitlement consists of the following: (a) Profitability Bonus (PS 2009) - N92,500.00 (b) Financial Staff (Bereaved Staff) - N50,000.00 (c) Separation Entitlement (Two years gross salary) - N2,848,158.24 (d) Pension, Staff - N59,128.17 (e) Pension, Bank 100% - N295,640.85 Total N3,345,427.26 The claimant states that the total amount due to him from the 1st defendant is N4,424,726.10 (Four Million, Four Hundred and Twenty Four Thousand, Seven Hundred and Twenty Six Naira, Ten Kobo) made up of his retirement benefits and his unutilized leave days together with his salaries for November, 2009 and salary in lieu of notice for December, 2009. That at the time of his father’s death in 2009, the 1st defendant sent its representative from the Info-Tech Unit of the Branch at Umuahia, Abia State for the burial of his father but did not present any compassionate gift being the sum of money payable by the 1st defendant to any staff that is bereaved in identifying with him in his hours of sorrow as contained in the 1st defendant’s Handbook. He added that the 1st defendant has persistently refused to pay his entitlements since his retirement in December 2009 notwithstanding all reasonable demands by him. That the 1st defendant’s persistent refusal to pay his November and December 2009 salaries, his unutilized leave days, his retirement benefits including the two years gross separation entitlement consisting of two years total income, has caused him severe economic, social and psychological hardship so much so that: (a) He could not pay his house rent which had been paid through his salaries/housing allowance. (b) He could not adequately maintain or take care of his family in terms of medical care, feeding, school fees for children due to denial of his entitlement after 15 years and two months of active loyal service. (c) He has not been able to commence his dream business and move on in life due to non-payment of his entitlement by the 1st defendant whom he joined when it had less than 20 branches and retired when it has over 300 branches. The claimant pleaded that after successfully working for the 1st defendant for the greater part of his youth and hoping to retire and start a business with his retirement benefit to eke out a living the 1st defendant orchestrated a grand design to subject him to perpetual poverty by blatant refusal to pay his entitlements till date. The claimant thereafter repeated the reliefs claimed in the complaint. He also claims against the 1st and 2nd defendants jointly and severally the total sum of N24,424,726.10 representing the Special and General Damages due to the Claimant in this suit. In its defence, the defendants deny paragraphs 1, 5a, 5b, 6 to 16 of the Statement of Facts. The defendants further stated that the claimant is an ex-staff of the People Plus Management Services Limited, one of the subsidiaries of the 1st defendant. That at the inception of the 1st defendant it handled all the employment of both senior and junior staff of the company and all the workers in the 1st defendant’s company were being employed and managed by the 1st defendant. That when the 1st defendant started to expand the management decided to register a sister company who will manage the junior staff of the 1st defendant and that of its subsidiaries. That the 2nd defendant was incorporated to deal on Securities and Stocks and to manage the junior staff of the 1st defendant and that of its subsidiaries. The defendants pleaded that on or around 2007 due to subsequent reorganization necessitated by the new exigencies of the period, the 1st defendant management resolved to separate management of Securities and Stock from management of its junior staff as well as that of its subsidiaries. That People Plus Management Services Limited came to absorb some responsibilities of the 2nd defendant which includes employment and management of junior staff of the 1st defendant and that of its subsidiaries to enable 2nd defendant concentrate on Securities and Stock exclusively. They pleaded further that the claimant were employed by the 1st defendant on 5th October, 1994 as a utility staff which falls under junior staff cadre. That before the confirmation of the claimant’s appointment, the 2nd defendant had taken up the employment and management of junior staff of the 1st defendant from the parent company of the 1st defendant. That the 2nd defendant confirmed the claimant on 31st October, 1995 as a permanent staff of the 2nd defendant which the claimant accepted and acted upon up till June, 2007 that from 1995 when the claimant’s appointment was confirmed as a permanent staff of the 2nd defendant and the 1st defendant had nothing to do with the claimant in respect of employment, promotion, discipline, leave, remuneration and or retirement had been carried out by the 2nd defendant. It is the defendants’ case that the claimant was seconded to 1st defendant by the 2nd defendant as a utility staff but the responsibility as to payment of salaries, discipline, promotion, leave and dismissal shifted to the 2nd defendant. The defendants relied on claimant’s payment slips, internal memo dated 17/4/2007, letter of interview dated 6/4/2005, internal memo dated 14/4/2003 and various leave approvals. They further pleaded that due to subsequent reorganization induced by exigencies of the period as explained above the 2nd defendant management resolved to separate management of securities and stock from management of 1st defendant’s junior staff and that of its subsidiaries. That in June 2007, People Plus Management Services Limited took up the management of the junior staff of the 1st defendant and that of its subsidiaries including their assets and liability and this action did not change the staff salary or any of their rights and privileges. That the claimant did not object to this arrangement as he continued to take instructions from the management of People Plus Management Services Limited since the arrangement did not alter any of his rights. That since June 2007, the defendants had nothing to do with the claimant’s employment, promotion, discipline, leave, remuneration and or retirement and claimant had been the responsibility of People Plus Management Services Limited and the claimant had been responsible and answerable to People Plus Management Services Limited. The defendant went further to state that when the 2nd defendant ceased to manage the junior staff of the 1st defendant forms requiring their current bio-data was given to all the staff and during the audit of the staff in 2009 the Records Unit of People Plus Management Services Limited found out that the claimant did not return his own bio-data form, even though he had been answerable to them. That efforts were made via telephone calls to ascertain the reason for the claimant’s non-compliance but all efforts were futile as the claimant was recalcitrant and uncooperative. The defendant further pleaded that a new form was sent to the claimant via a memo dated 12th November, 2009 the receipt of which was acknowledged by him but the claimant still refused to fill and return the said form. That when all steps taken by the management of People Plus Management Services Limited to make the claimant fill the forms proved abortive, they issued him a query via a memo dated 20th November, 2009 and instead of answering the query the claimant resorted to challenge the authority of People Plus Management Services Limited to give him query. That in view of sensitive nature of the claimant’s position as a system administrator his persistence refusal to volunteer personal information which was meant to offer essential security comfort became a source of concern to the defendants and People Plus Management Services Limited. That the management of People Plus Management Services Limited terminated the claimant’s employment on 24th November, 2009 for gross insubordination. They further stated that as at the date the claimant’s employment was terminated he was seconded to Zenith Bank by People Plus Management Services Limited, Ikota Shopping Complex branch where he worked in their Info Tech Department as a System Administrator. That at the time of confirmation of claimant’s appointment, his salary was being paid by the 2nd defendant but later paid through Zenith Bank for administrative purpose. The defendant added that the claimant worked in the People Plus Management Services Limited at the following period: (a) 1st defendant (Zenith Bank) 5th October, 1994 to 8th April, 1995. (b) 2nd defendant (Zenith Securities Ltd) 9th April, 1995 to June, 2007. (c) People Plus Management Services Limited (1st defendant’s subsidiary) June 2007 to 24th November, 2009. They pleaded that when the claimant received his termination letter dated 24th November, 2009 he sent his purported retirement letter which he back dated to 22nd November, 2009. That the claimant’s end of service account was prepared in line with company’s employment policy which was communicated to the claimant by a letter dated 28th January, 2010. The defendants pleaded that they do not have any obligation towards the claimant in respect of his end of service account as the claimant ceased to be an employee of the defendants since 1995 and 2007 respectively. That at the termination of the claimant’s employment his terminal benefit was computed based on his liabilities and entitlement in the course of his employment as follows: INDEBTEDNESS – A Prepaid housing balance - N300,000.00 Total Indebtedness – A - N300,000.00 ENTITLEMENT – B In lieu of Notice - N15,416.67 Salary for the month November 23 days N83,223.78 Earned Leave Allowance 2008/2009 N5,473.97 Unutilized leave days 1995/1995 11days N45,426.35 “ “ “ 1995/1996 5 days N20,648.34 “ “ “ 1997/1998 5 “ N20,648.34 “ “ “ 1998/1999 5 “ N20,648.34 “ “ “ 1999/2000 3 “ N12,389.01 “ “ “ 2000/2001 5 “ N20,643.34 “ “ “ 2001/2002 5 “ N20,648.34 “ “ “ 2004/2005 5 “ N20,648.34 Unutilized leave days 2007/2008 5 days N20,648.34 Unutilized leave days 2008/2009 5 days N33,037.34 Balance on S/A 4090103387 N190.08 Total Entitlements B - N339,695.59 Net Entitlement (B – A) N39,695.59 Defendants further stated that the claimant does not have any other entitlement apart from the one stated above and that which has been remitted to his chosen Pension Fund Administrator – Trust Fund Pension Fund Administrators. That at the point his employment was terminated the claimant was entitled to the sum of N39,695.59 as contained in the end of services account which was furnished to him and no other sum and that the claimant is not entitled to December salary since his employment was terminated on 24th November, 2009 for insubordination. That the claimant’s entitlement comprises of his one month basic salary in lieu of notice, basic salary for the month of November, earned leave allowance, unutilized leave days from 1995 – 2009 and balance on savings account No. 4090103387. The defendant also pleaded that the claimant was only seconded to the 1st defendant by the 2nd defendant and subsequently by People Plus Management Services Limited. That the claimant’s income tax certificates were given to him till 2005 when the Electronic Card System was introduced by Lagos State Government and the said card was given to the claimant and renewed every year. That NHF contribution was deducted and remitted to NHF and the claimant’s NHF account number is 101246184 – 8. They pleaded that separation entitlement is not a standing policy in the defendants but a mere largesse given to deserving staff for superior performance and payment of same is purely at discretion of management of the defendants. That when a staff is bereaved he notifies the management of the death and support it with a Death Certificate but the claimant till date did not attempt to satisfy any of the above requirements. That none of the contract between the defendants and the claimant ever stated that the claimant shall be entitled to receive the following: (a) Profitable Bonus (PS 2009) - N92,500.00 (b) Financial Staff (Bereaved Staff) - N50,000.00 (c) Separation Entitlement (Two Years Gross Salary) - N2,848,158.24 (d) Pension Staff - N59,128.17 (e) Pension, Bank 100% - N295,640.85 N3,345,427.26 The defendant further stated that what they have in their staff handbook is benefit on retirement or benefit on leaving service before retirement and this benefit is the total contribution by a member and the bank on behalf of the staff plus the staff’s share of the profit earned on the investment of the Trust Fund. That the said Trust Fund has been transferred to the claimant’s Pension Fund Administrator by name Trust Fund Pension Fund Administrators. In his Reply to Statement of Defence, the claimant pleaded that paragraph 4 of the Statement of Defence is false designed to deprive the claimant of his due entitlement and that paragraph 5 of the Statement of Defence is a confirmation that he was employed as an employee of the 1st defendant. That the 2nd defendant was established for the 1st defendant’s administrative convenience through which the 1st defendant carried out some of her responsibilities to her junior staff of which the claimant was one. That in respect of paragraphs 8 and 15 of the Statement of Defence the defendants attempted to deceive and ended up in a web of confusion when they confirmed that the 1st defendant’s junior staff of which the claimant was one remained the 1st defendant’s junior staff even as at 2007. That in paragraph 8 of the Statement of Defence the defendants said that the 2nd defendant management resolved to separate as against paragraph 8 where they said that the 1st defendant management resolved to separate. The claimant stated that he was not employed by People Plus Management Services Ltd and any purported transfer of his services by the 1st defendant to the 2nd defendant was without his consent and that of the Labour Officer in line with Labour Act. That contract of employment be established by mere internal memos, leave approvals, internal memos on assignment and reassignment e.t.c. being displayed by the defendant and maintains that his employment with the 1st defendant met the requirement of contract of employment. The claimant further states that the Directors of the 1st defendant are the same Directors of the 2nd defendant sharing the same office premises. That his bio-data could not be in the record unit of People Plus Management Services Ltd because he was not its employee but instead was employed by the 1st defendant whose record unit shows his bio-data and deny ever receiving any form from the defendants requesting his bio-data. The claimant maintains that throughout his period of employment by the 1st defendant in 1995 – 2009 he was neither queried nor suspended and his employment was never terminated by the defendants but that he delivered his retirement letter to the 1st defendant on 24th November, 2009 giving one month notice in line with terms of employment. That he was employed by the 1st defendant in 1994 after a successful interviewed and the 1st defendant was paying his salaries, tax at source e.t.c. That paragraphs 28 – 40 of the Statement of Defence are complete falsehood to mislead the court and that his severance benefit, November and December, 2009 salaries, unutilized leave days e.t.c have not been paid by the 1st defendant till date. That by the 2st defendant’s handbook it pays members of staff who retire from service separation entitlement. The claimant further states that he followed the procedure in informing the defendants of his father’s death and burial and that the same defendant who alleged improper communication also granted/approved leave for him to go for his father’s burial and sent representative from its branch office at Umuahia. That the 1st defendant established the 2nd defendant and others so as to avoid creating environment for him access his Trust Fund Pension Account. That the 2nd defendant is promoted, incorporated and run by the 1st defendant including the purported People Plus Management Services Ltd in its determination to confuse its junior staff. That his leave applications were to the 1st defendant as his employers and approvals were by the Directors/officers of the 1st defendant. That the purported transfer of his services by the 1st defendant to the 2nd defendant or to any of its supposed subsidiaries for that matter without his consent including the purported termination of his employment through the People Plus Management Services Ltd who never employed him, more so when he already tendered his retirement letter amounts to an unfair labour practices. During trial the claimant testified on his own behalf as CW1 and adopted his statement on oath made on 20/7/2012 and that of 18/10/2012. During cross-examination, the CW1 stated that he did not resign but retired because having served the 1st defendant for 15 years and two months. That he is 48 years old having been born 15th January, 1965. He stated that he did not know People Plus Management Services Ltd but that he was confirmed by the 2nd defendant. He admitted that his confirmation letter stated that he is permanent staff of the 2nd defendant. That when he was employed he had OND and GCE/O’ Level. That he had received salaries through the 2nd defendant and throughout is working period his salary was not reduced. CW1 stated that he is not aware his employment with the defendant was terminated as he has not seen any letter of termination of employment with the 1st defendant until he saw it in the defence processes in the matter he filed against the defendants in the High Court. He added that before his retirement he reported to the Head Office but he used to work at Ikota VGC Branch. That information dissemination was through calls or memo and orals. That annual leave is usually approved by the 1st defendant from the leave document and his leave was approved by the 2nd defendant contrary to the answer that his leave was approved by the 1st defendant. That there was no form to fill from People Plus Management Services Ltd. He admitted knowing one Barr. Nelson Okedinachi who was his lawyer when this matter was at the Lagos State High Court. CW1 stated that he sent his retirement letter to the 1st defendant on 24/11/2009. That he was refused access to the 1st defendant on 8/12/2009 but that he worked on 23/11/2009. That he sent the letter through a dispatch rider to the Head Office because he could not leave his office. That he applied for a loan of N360,000.00 and the deduction so far is N90,000.00 from the loan. That the two years gross is not in his employment letter and that he was entitled to 15 working days. The CW1 stated that in making his application for leave, it was to the 1st defendant who was his employer. One Salako Olutayo Babajide testified for the defendants as DW1. He stated that he works with People Plus Management Services Ltd. He adopted his statement on oath on 13/9/2012 and his Exhibits A1 – 12, B1 – 7 and C. During cross-examination the DW1 stated that he was employed in 2004 as an Assistant Banking Officer by Zenith Bank but his services was transferred to People Plus Management Services Ltd the same year. That he is 39 years old. CW1 stated that he is now Head of Operations. That the claimant was employed on 10th October, 1994 by the 1st defendant before his services was transferred to the 2nd defendnat and finally to People Plus Management Services Ltd. That as at the time the claimant was employed Mr. Jim Ovia was the Managing Director of the 1st defendant. That the period of confirmation varies depending on the category of the employee and for those of the claimant’s category it is one year. That the claimant’s appointment was confirmed as a staff of the 2nd defendant but that it was in 1995. DW1 admitted knowing Andy Ojei and Peter Amangbo who are Directors of the 1st defendant and 2nd defendant. He stated that he does not know when the 2nd defendant was incorporated. Continuing the DW1 added that he was employed as a Human Resources Personnel and not as a banker. He recalled giving evidence under cross-examination that he worked in Operations of the 1st defendant. That bankers are either in marketing or Operations and that he was employed in 2004 by the 1st defendant. He stated that he is not aware that the 1st and 2nd defendant gave the claimant letter of termination. That no letter of fresh employment was issued to the claimant by the 2nd defendant as his services were merely transferred. DW1 added that the claimant never applied to People Plus Management Services Ltd for employment and the said company did not give the claimant letter of employment. That he has spent six (6) months in the Human Resources of the 1st defendant thereafter his services was transferred to the 2nd defendant and later to People Plus Management Services Ltd. That he is not aware of whether the claimant was terminated by the 1st and 2nd defendants. That they have over ten thousand staff while some are on contract and all the seconded staff are not answerable to Zenith Bank but to the establishment where they are seconded and those establishment can dismiss them. That the 2nd defendant issued the claimant an ID card as ID cards are issued at subsidiary companies. DW1 stated that it is not true that the claimant never worked with People Plus Management Services Ltd. That he is not aware that the 1st and 2nd defendant sacked the claimant. There was no re-examination. The defendants thereafter closed their case. The parties were ordered to file their respective Final Written Addresses in accordance with Order 19 Rule 13 of the NIC Rules, 2007 beginning with the defendants. The defendants’ Final Written Address is dated 27th May, 2013 and filed same date, while the claimant’s Final Written Address is dated 24th July, 2013 and filed same date. Defendants’ Counsel raised two issues for determination as follows:- 1. What were the terms and conditions of the employment? 2. Is the claimant entitled to the reliefs sought in his Writ of Summons and Statement of Fact? Arguing issue one, Learned Counsel submitted that there is no doubt that the claimant was originally employed and given a handbook by the 1st defendant and confirmed by the 2nd defendant as it is clearly shown in Exhibit A1 and A2. He referred the court to Section 91 (1) of Labour Act which defines “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or the services of any other person and includes the agent, manager or factor of that first mentioned person”. He reiterated the fact that the 1st defendant employed the claimant and deployed him to the 2nd defendant and later to People Plus Management Services Ltd hereinafter called People Plus. He submitted that Exhibits A6, A7, A8, C, A9 clearly showed that the claimant was under the management of People Plus who is one of the subsidiaries of the 1st defendant, therefore, the claimant cannot deny knowledge of a company that approves his leave and post him to areas of assignment. Learned Counsel submitted that the terms of contract were spelt out in Exhibit A1, A2 and A12 and that it is the terms and condition of the contract that govern the relationship between the employer and employee. He relied on the cases of Nwanbani v. Golden Guinea Breweries Plc [1995] 6 NWLR (pt. 400) p. 184 at 188, Shena Security Co. Ltd v. Afropak Nig. Ltd & Ors [2008] 4 – 5 SC (pt. 11) p. 117. He submitted that where there is a written contract of employment governing the relationship between master and servant, the court is enjoined only to interpret the terms of the contract freely and voluntarily entered into between the parties and parties are bound by the said terms. He relied on the case of WACE v. Oshiorebo [2007] All FWLR (pt. 370) p. 1501, UBN Plc v. Ogboh [1995] 2 NWLR (pt. 380) p. 642. He also referred the court to Section 22.4 of the 1st defendant employee handbook on transfer of employee to another branch or department. He also referred to Section 4:6 of the said handbook also on deployment of staff to any part of the country. That deploying the claimant to the 2nd defendant and later to People Plus is in line with the terms of employment stated in the Employee handbook of the 1st defendant. Counsel submitted that the Employee handbook (Exhibit A12) together with the letter of employment (Exhibit A1) form the fulcrum of the contract of employment of the claimant and that parties are bound by the terms of contract. He further submitted that the content of the terms of the contract of employment between the parties cannot be varied by any extrinsic evidence or material not in any way contemplated when entering the contract relationship. He also referred to paragraph 1.3 and 1.4 of the said handbook and submitted that general condition of service do not confer any right beyond those specifically provided in individual letters of appointment. That it is trite that employment relationship between an employer and employee is based on contract which assure equally between the contracting parties, citing the case of Chukwuma v. Shell Petroleum Dev. Co. of Nig Ltd [1993] 4 NWLR 512 (incomplete citation). Learned Counsel further submitted that such contract of employment does not give rise to any collective interest or right, citing the case of Co-operate & Commerce Bank (Nig) Plc v. Mrs. Rose [1998] 4 NWLR (pt. 544) p. 37. He submitted that such 2 years gross payment claimed by the claimant is not contained in his Employee Handbook, employment letter or confirmation letter and therefore, he is not entitled to such payment. Learned Counsel cited Section 17.7 of the Employee handbook on the retirement entitlement claimed by the claimant as well as Section 17.10 on benefit on leaving service before retirement. That the claimant is not entitled to any retirement benefit as same has been remitted to his chosen Pension Trust Fund. He also submitted that profit sharing is not contained in any term and condition of service of the claimant employment. On issue two, Learned Counsel submitted that the claimant is not entitled to the reliefs sought. That the claimant was paid an upfront of N360,000.00 on 3rd September, 2009 as Exhibit B1 as well as the deduction of the sum of N30,000.00 from the claimant salary each month to cover the N360,000 in the month of September and October, 2009 leaving his salary in those months to N78,552.75. That the 1st relief sought by the claimant is special damages in from of salaries in lieu of Notice for November and December 2009. Learned Counsel submitted that the claimant is only entitled to his basic salary in lieu of notice as calculated in Exhibit A11 and salary for 23 days representing the period of time he worked. On relief 1(c) counsel stated that the claimant claimed 86 days of unutilized leave days from 1994 – 2009 while referring to exhibits A9, B3, B4, B5, B6 and B7 which are claimant’s leave approvals and filled forms. He therefore submitted that the defendant has shown that the claimant actually went on leave on some of the days claimed by him and cannot be paid for periods he actually proceeded on leave. On reliefs 1(d), (e), (f) and (h) Learned counsel submitted that the claimant is not entitled to those reliefs based on the foregoing argument canvassed in issue one. On relief (g), Counsel submitted that the said amount has been added to the claimant’s end of service account which he failed to collect. He added that relief (i) sought by the claimant to the effect that compassionate gift of N50,000 was not given to him when his father died, that he is not entitled to the said sum as claimed. Learned counsel referred the court to section 10.17 (B) of Handbook on payment of flat sum of N5,000.00 and N3,000.00 depending on the staff level on a bereaved staff. He added that the claimant did not submit his father’s death certificate as requirement for the payment. On relief (ii) claimed by the claimant, defendants’ counsel submitted that the claimant’s tax and NHF has been remitted to the government as required by law, therefore, he is not entitled to be paid such monies by the defendants. He submitted further that the general damages of N20 Million claimed by the claimant is not recognized by law in the measurement of damages of master and servant relationship even where there is wrongful termination. That the retirement entitlement that the claimant is claiming was computed based on his liabilities and entitlement in the course of employment and that his refusal to collect his end of service entitlement cannot make the defendant’s liable to any hardship and psychological trauma he claims to have suffered. Learned counsel submitted that it is the duty of the employee to mitigate his loss, citing the case of Garuba v. Kwara Investment Co. & Ors [2005] MJSC Vol. 4 p. 58. On what the claimant is entitled to, Learned Counsel submitted that by virtue of Exhibit B1, (Claimant’s Statement of Account) the claimants net pay for October was N78,552.75 after deduction of N30,000 (housing upfront referred as housing loan) tax, pension and National Housing Fund. That Exhibit A11 shows claimant’s entitlement after removing his prepared housing balance of N300,000.00. Learned counsel submitted that the claimant is only entitled to the balance in Exhibit A11 and that which is remitted to Federal Mortgage bank as his NHF. He urged the court to dismiss this suit with substantial cost. Claimant’s counsel raised two issues for determination as follows: 1. Whether having regard to the totality of the evidence adduced before the court, the claimant was not employed and retired as a staff of the 1st defendant, and if the answer is in the affirmative, whether the claimant, having worked for 15 years and two months is not entitled to the reliefs sought in this action. 2. Whether the defendants adduced any credible evidence in support of the averments in their Statement of Defence. Learned Counsel pointed out that the claimant established at the trial that he was employed by the 1st defendant and confirmed by the 1st defendant through the 2nd defendant evidence of which was corroborated by the defendants. He relied on paragraphs 5.1 and 5.2 of the defendants’ Final Written Address and the New Nigerian Bank Plc v. Denclad Ltd [2004] All FWLR (pt. 228) p. 606 where it was held that unchallenged and uncontroverted evidence can be acted upon by the court and deemed to be true and correct. He also cited the cases of Nzeribe v. Dare Engineering Co. Ltd [1994] 9 SCNJ p. 161, Adeleke v. Inyanda [2001] FWLR (pt. 60) p. 1580, Okoebor v. Police Council [2003] FWLR (pt. 164) p. 189. Learned counsel referred the court to the List of Documents and submitted that a careful look at the 1st defendants List of Directors they are Jim Ovia, Godwin Emefiele, Andy Ojei, Apollos Ikpobe and Peter Amangbo. He also referred to the definition of “Executive Director” in Black’s Law Dictionary Eight Edition at page 610 to mean “a salaried employee who serves as an organization’s Chief Administrative and Operating Officer and heads its professional staff”. He urged the court to hold that the Executive Directors are salaried employees of the 1st defendant and all documents signed by them whether for the 1st or 2nd defendants are signed for and on behalf of the 1st defendant. He submitted that the claimant’s contracted relationship with the 1st defendant is expressed in writing. He cited Section 91 of Labour Act, Ngun v. Mobil Producing Nig. Unlimited [2013] All FWLR (pt. 677) p. 665, Union Beverages Ltd v. Pepsi cola Ltd [1994] 2 SCN 157. He submitted that the appointment letter given to the claimant by the 1st defendant indicated that a contract of service was entered between the claimant and the 1st defendant. He relied on the case of Mandilas of Karaberis Ltd v. Otikuti 1 All NLR p. 22, Olaniyan & Ors v. University of Lagos [1985] 2 NWLR (pt. 9) p. 599. Learned counsel submitted further that there is no evidence that the 1st defendant complied with section 10 (1) and 2 (a) of the Labour Act which provides that: 10 (1) “The transfer of any contract from one employer to another shall be subject to the consent of the worker and endorsement of the transfer upon the contract by an authorized labour officer”. 10 (2) “Before endorsing the transfer upon the contract, the officer in question, (a) shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake”. Learned Counsel further submitted that the DW1 having admitted that the claimant remain the junior staff of the 1st defendant such admission need no further proof. He relied on the case of Mulina v. Goniram & Ors [2004] All FWLR (pt. 228) p. 751, Ogunleye v. Oni [1990] 2 NWLR (pt. 135) p. 745, Akpandiaha v. Owo [2000] 8 NWLR (pt. 669) p. 439. He added that the defendants having admitted that the claimant is a junior staff of the 1st defendant are stopped from approbating and reprobating. That sections 4.6 and 22.4 of the 1st defendant employee handbook referred by the defendants were misconstrued and misapplied. He urged the court to apply the ejusdem generis rule in construing the said sections of the Handbook. He also relied on the case of Okewu v. Federal Republic of Nig. [2005] All FWLR (pt. 254) p. 858, Onafise v. Sami [1962] NSCC vol. 2 p. 196, Texaco (Nig.) Plc v. Lukolo [1997] 6 NWLR (pt. 516) p. 65. That the claimant as a confirmed staff worked for the 1st defendant, therefore, he is entitled to the relief sought. He added that the employee handbook give general conditions of service and not information about the 2nd defendant or people plus and the said employee handbook did not empower the 1st defendant to transfer or deploy the claimant to the 2nd defendant or People Plus and even if there is such provision, the 1st defendant did not meet the requirement of Section 10 of Labour Act. Learned counsel reiterated the special damages claimed by the claimant as salary in lieu, salary for November 2009, unutilized leave days, pension, profit sharing, compassion at gift for bereaved staff, credit balance or savings account and gross separation entitlement. He submitted that the claimant gave evidence to his entitlement to the said reliefs as well as general damages. He added that the two (2) years gross salaries is a part of separation entitlement of an employee retiring from service after 10 years and above. He referred to Clause 11.1 and 22.9 of the Handbook. He urged the court to hold that the claimant is entitled to the reliefs sought in this suit. On issue two, Learned Counsel submitted that the DW1 failed to present any credible evidence of the People Plus Management Services Ltd involvement in the contractual relationship between the claimant and the 1st defendant and that his evidence is inconsistent with his evidence in paragraphs 9, 10 and 16 of his Written Statement on Oath. He added that where the only competent witness is the party in the case in the sense that he was directly involved in the transaction and no other person, he then stands the risk of exposing the evidence of his witness as a bundle of hearsay. He relied on the case of Ezenna v. Atta [2004] All FWLR (pt. 202) p. 1858, Zaky v. Magayaki [2002] FWLR (pt. 19) p. 553, Achoza v. A.G Bendel [1990] 7 NWLR (pt. 160) p. 92. Counsel submitted that he who alleges must prove, citing Section 131 (1) of Evidence Act, 2011. He submitted that in order to prove the truth of the fact in a statement made to a witness, the person who alleged to have made the statement must be called to testify, otherwise, such evidence of the witness will be treated as hearsay and inadmissible when the issue is the truth of the facts alleged. Learned Counsel therefore, urged the court to hold that the claimant worked and retired as a staff of the 1st defendant and that he is entitled to the reliefs claimed in this suit. I have carefully considered the processes filed in this suit, I also listened to the witnesses gave evidence in-chief and under cross examination. I have perused the submissions of Counsel to both parties and the authorities cited. In my view, the issues for determination are, “whether the claimant was a staff of the 1st defendant and retired as such,” and “whether the claimant is entitled to the reliefs sought in this suit”. The claimant was employed by the 1st defendant as a utility staff by virtue of a letter dated 5th October, 1994. The claimant was later redeployed to the 2nd defendnat who confirmed the appointment of the claimant by a letter of 31st October, 1995. Subsequently, the claimant was transferred to People Plus Management Services Limited. The contention of the claimant is that he resigned from the 1st defendant by virtue of his letter dated 22nd November, 2009 giving the 1st defendant one month notice of retirement. On the other hand, the defendants contended that the claimant’s employment was terminated by a letter dated 24th November, 2009. The said letter was written by People Plus Management Services Ltd addressed to the claimant. The claimant further contended that at all times material to this action he was a staff of the 1st defendant and that his contract was not transferred to the 2nd defendant or People Plus and assuming his employment was transferred, the 1st defendant did not observe the provision of Section 10 (1) (2) (a) of the Labour Act. Section 10 (1) (2) (a) of Labour Act, 2004 provides as follows: 10 (1) The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorized labour officer. (2) Before endorsing the transfer upon the contract, the officer in question – (a) shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake. From the above provision, the legislature laid emphasis on consent of the employee. The DW1 under cross examination admitted that no fresh letter of employment was issued to the claimant by the 2nd defendant and that his services were merely transferred. In the case of Fadairo v. LBIC Ltd [2009] 15 NLLR (pt. 40) p. 18 at 39, this court held that: “The position of the law is therefore clear that no employee can be transferred from one employer to another without his consent.” Also in Ogun State Hotel Abeokuta & Anor v. HUHPSW [2010] NLLR (pt. 51) p. 399, this court restated the position of the law that there are two conditions precedent to a valid transfer of a worker, the consent of the worker and the endorsement of the authorized labour officer on the contract of service. This court also held that even when it can be inferred that workers had no objection to their services being transferred to a new employer, if there is no evidence on record that the workers were specifically asked whether they consent to a transfer and if there is no endorsement of an authorized labour officer on the workers contract of service, the conclusion that must be drawn is there is no valid transfer of the services of the workers from the old to the new employer. It is my humble view that except in the case of statutory provision to the contrary, a right to transfer the service of an employee cannot be the subject of transfer to a third party without the employee’s consent. A contract of service being incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party. See Mrs. Kehinde Dunmoye v. UBA & Anor. Suit No. NICN/LA/93/2012 a Judgment of this court delivered on May 10, 2013. In this case the claimant never applied to People Plus for employment neither did it give the claimant letter of employment. Also there is no evidence before the court that the 1st defendant complied with Section 10 of the Labour Act when it unilaterally transferred the services of the claimant to the 2nd defendant and later to People Plus. While the claimant worked for the 1st defendant and People Plus, he was still regulated by the 1st defendant’s handbook which the parties quoted in their pleadings and final addresses. My finding is that the claimant’s consent was not sought and obtained when his services were transferred contrary to the provision of the Labour Act. Consequently, the claimant remained the staff of the 1st defendant at all time material to this suit, and I so hold. On the retirement of the claimant from the services of the 1st defendant, the DW1 stated that he is not aware whether the claimant’s employment was terminated by People Plus. The claimant’s letter of retirement dated 22nd November, 2009 and the People Plus Management Services Ltd’s letter of 24th November, 2009 have no indication that they were received by the parties herein. The DW1 who stated in paragraph 27, 31 and 38 that the claimant’s employment was terminated also stated under cross-examination that he is not aware whether the claimant’s employment was terminated. I therefore, believe the evidence of the claimant that he retired from the services of the 1st defendant by virtue of his letter of 22nd November, 2009 and I so hold. I resolve issue one in favour of the claimant. On issue two, the claimant claimed salary in lieu of notice for the one month period of notice in December, 2009 as well as his salary for November, 2009. Section 6.1 of the 1st defendant’s Employee Handbook which governed the employment of the claimant throughout his employment made provision for one month notice or salary in lieu of notice. Having complied with the said provision, the claimant is entitled to salary in lieu of notice and November, 2009 salary. The defendant admitted this in paragraph 35 of their statement of defence but the difference is the amount the defendant allocated for salary in lieu of notice which is N15,416.67. Section 6.1 of the handbook provides clearly for salary to cover the same notice period. The defendants having admitted in the said paragraph that the claimant’s salary for the month of November, 2009 is N83,223.78 the same sum should be paid as one month salary in lieu of notice in accordance with the 1st defendant’s Employee Handbook. Consequently, I find that the claimant is entitled to the sum of N166,447.56 (One Hundred and Sixty Six Thousand, Four Hundred and Forty Seven Naira, Fifty Six Kobo) being his November and December salary. This is so because it is in evidence that the 1st defendant prevented the claimant from working during the period of notice which is December, 2009. I therefore hold that the claimant is so entitled. The claimant claimed the sum of N576,893.86 as his unutilized leave days from 1994 to 2009 as well as balance on savings account number 4090103387 in the sum of N190.08. The defendant in paragraphs 35 and 37 admitted that the claimant is entitled to the sum of N339,695.59 as his leave allowance, unutilized leave days and balance on savings account number 4090103387 in the sum of N339,695.59 the defendant deducted the sum of N300,000.00 as the claimant’s prepaid housing balance and admitted owing the claimant the sum of N39,695.59. Apart from calculating his unutilized leave days allowance the claimant did not give further evidence as to how he arrived at those figures. I am of the view that the claimant did not prove the said amount. I therefore, accept the evidence of the defendant and award the claimant the sum of N39,095.59 (Thirty Nine Thousand, Ninety Five Naira, Fifty Nine Kobo) as his unutilized leave days and balance on savings account number 4090103387. The claimant further claimed the sum of N59,128.17 and N295,640.85 respectively as pension (staff) and pension (bank). In reaction to this, the defendant submitted that the said pension has been remitted to the claimant’s Pension Fund Administrator in the name of Trust Fund Pension Fund Administrator and that the claimant’s NHF Contribution was deducted and remitted to NHF and that the claimant’s account number is 101246184 8. Under Section 11 of the Pension Reform Act Cap. P4 LFN, 2004 pension contribution is payable into retirement savings account of the employee. It is the duty of the claimant to obtain his statement of account from his pension administrator as well as that of NHF to demonstrate to the court that the defendant did not remit the said contributions. This the claimant did not do. In the absence of that I accept the evidence of the defendant that it remitted the claimant’s pension contribution to his Pension Fund Administrator and the NHF. The claimant’s claim for profit sharing for 2009 was not be substantiated it is therefore refused. The claimant equally claimed the sum of N50,000.00 compassionate gift payable to a staff of the 1st defendant who lost a father. To this the defendant contended that the procedure of the defendant is that when a staff is bereaved he notifies the management with a Death Certificate and that the claimant did not meet the said requirement. Section 10.17 B of the 1st defendant’s Employee Handbook provides as follows: COMPASSIONATE GIFT A compassionate gift is a token sum payable by the bank to a staff, identifying herself with the staff in his/her hours of sorrow. This gift is applicable on the following grounds – death of child, wife, husband, father or mother and a flat sum of N5,000.00 shall apply to EAs and above while a flat sum of N3,000.00 shall apply for all levels below EA. The bank shall send representatives to such burial ceremony. A staff who misguides the bank into paying him/her any amount shall be summarily dismissed, if discovered. From the above provisions of the Handbook a bereaved staff is entitled to be paid compassionate gift on those circumstance without the condition of submitting the death certificate. The claimant attached an email letter dated 9th October, 2009 which he sent informing the 1st defendant that his father died. The claimant also stated that the defendants sent representative during his father’s burial. It is my view that the claimant met the condition for entitlement of compassionate gift when he informed the 1st defendant of the death of his father. I am therefore convinced that the claimant has proved his entitlement to compassionate gift. There is no proof before the court however that the said gift money has been increased to N50,000.00 as contended by the claimant. I therefore award the sum of N3,000.00 as compassionate gift in favour of the claimant. The claimant also claimed the sum of N2,848,158.24 as his two years gross separation entitlement. To support this claim the claimant referred to memos dated 14/2/2005, 1/3/2005, 2/3/2005 and 23/June, 2006 from the 2nd defendant purporting to suggest that it has paid or approved payment of two years gross salary as separation entitlement to staff who retired. He also relied on Section 11.1 and 22.9 of the Employee Handbook as authority for his entitlement to separation payment. While Section 11 of the handbook deals with policy of the 1st defendant, Grieverance Procedure and Bulletin Board, Section 22.9 deals with staff Identity Card. There is no provision for two years gross pay for a staff who retires. Reference to payment of 2 years gross pay to some retired staff by the 2nd defendant does not help the claimant’s case because the terms of the claimant’s employment determines the claimant’s entitlement. It is my finding that the claimant does not share the same terms of employment with those staff he refers to. Consequently, the claimant has failed to prove his entitlement to two years gross separation entitlement. The claimant’s claim for an order directing the defendants to produce his tax clearance certificate is outside the jurisdiction of this court and it is hereby refused and struck out. My finding is that the claimant’s suit succeeds in part only. For the avoidance of doubt I order as follows: 1. The claimant has duly retired from the services of the defendant with effect from 24th December, 2009. 2. The 1st defendant is ordered to pay to the claimant the sum of N166,447.56 (One Hundred and Sixty Six Thousand, Four Hundred and Forty Seven Naira, Fifty Six Kobo) being his November and December salary for 2009. 3. The 1st defendant shall pay the sum of N39,695.59 (Thirty Nine Thousand, Ninety Five Naira, Fifty Nine Kobo) to the claimant as his unutilized leave payment. 4. The 1st defendant shall pay to the claimant the sum of N3,000.00 (Three Thousand Naira) as compassionate gift. 5. The 1st defendant shall also pay N100,000.00 cost to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Presiding Judge