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By her General Form of Complaint dated and filed on 19th December, 2011, the claimant seeks the following reliefs: 1. The sum of N4,327,358.00 (Four Million, Three Hundred and Twenty Seven Thousand, Three Hundred and Fifty Eight Naira) being the balance of gratuity to the claimant for her fifteen (15) years of service to the defendant. 2. The sum of N36,925.50 (Thirty Six Thousand, Nine Hundred and Twenty Five Naira, Fifty Kobo) being the balance of the amount due to the claimant as three (3) months’ salary in lieu of notice of termination of employment. 3. The sum of N92,729.10 (Ninety Two Thousand, Seven Hundred and Twenty Nine Naira, Ten Kobo) to the claimant being the commutation of her 2006 leave days to cash. 4. The interest per annum on the claimant’s allocated shares of 43,189 units from the date of declaration of dividends (2006) until judgment is given. 5. An order of this court compelling the defendant to pay the claimant her outstanding pension from the date of compulsory retirement i.e. 29th day of March, 2006 till June, 2008. 6. An order of this court compelling the defendant to pay the claimant the sum of N472,918.00 (Four Hundred and Seventy Two Thousand, Nine Hundred and Eighteen Naira) being her entitlement for deferred pension. 7. An order of this court compelling the defendant to pay the claimant the sum of N2,472,776.00 (Two Million, Four Hundred and Seventy Two Thousand, Seven Hundred and Seventy Six Naira) being his outstanding emolument owned her by the defendant. 8. An order compelling the defendant, its agent, servants or privies to release the claimant’s shares certificate forthwith. Accompanying the Complaint are Statement of Facts, List of Witness, List of Documents to be relied upon at trial and claimant’s Witness Statement on Oath. In reaction, the defendant filed a memorandum of appearance dated and filed on 9th February, 2012. The defendant also filed a Statement of Defence, List of Witnesses, List of Documents to be relied upon at trial and defendant’s Witness Statement on Oath. The claimant also filed a Reply to Statement of Defence dated and filed on 27th March, 2012. By the Statement of Facts the claimant pleaded that the claimant is a retired staff of the defendant who was compulsorily retired by the defendant via a letter dated 29th March, 2006 and after putting a meritorious service of fifteen (15) years to the defendant’s company. That the defendant is a company registered in Nigeria under the Companies and Allied Matters Act, 1990 with its head office at No. 36, Marina, Stallion Plaza, Lagos State. The claimant avers that she was compulsorily retired by the defendant via a letter dated 29th March, 2006 after putting a meritorious service of fifteen (15) years to the defendant’s company. That the purported retirement was without her consent or prior notice. That her conditions of service as clearly stated in her employment letter is regulated by the contract of service agreement and Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). The claimant also avers that she was not only retired compulsorily and in the most callous manner but denied her full benefits and entitlements in the main collective agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEAVIAI) which both the claimant and the defendant are subject to and which was clearly referred to in the claimant’s employment letter. That she is a shareholder under the Union Bank Employee Share Ownership Trust Scheme (UBESOT) introduced by the defendant. That she was allotted 43,189 units of shares by the defendant under the scheme mentioned in the paragraph above. The claimant further avers that she also bought 4,339 units of shares at the rate of N20.00 (Twenty Naira) per share under the said scheme and that she has not been opportune to know the dividends and bonuses due and payable on the shares as declared in the Annual General report of the defendant from 2007 till date. That she demanded for the certificate, bonuses and dividends accruable to her shares under the said scheme but the defendant refused, failed and/or neglected to release same. Also that she has been prevented from trading and/or selling her shares under the above-mentioned scheme by the defendant refusal to release the certificate and other benefits accruable thereto. That her shareholding and interest under the said scheme has been totally ruined by the wrongful act of the defendant mentioned in paragraphs above, as the said shares are presently worthless in value when compared with their value as at the time of allotment and purchase. The claimant avers further that the bonuses for 2006 and 2007 due on her shares of 47,528 units is 46,688 additional units and dividends payable for 2006 and 2007 is N95,036.00 (Ninety Five Thousand and Thirty Six Naira) in accordance with the defendant’s Annual General Report of 2006 and 2007. That dividends and bonuses were declared and paid to other shareholders on the aforementioned shares but the defendant has deliberately refused to release the dividends and bonuses due on the claimant’s shares. PARTICULARS OF CLAIM (A) COMPUTATION OF BENEFITS BASIS OF CALCULATION:- 16 weeks of total emolument for each year completed Then:- Number of weeks = 16 x 15 = 240 weeks Therefore:- Number of years involved = 240/52 = 5 years Note:- 52 weeks make a year. COMPUTATIONS (1) EMOLUMENT: Amount Credit N Amount Supposed to be Credited N Difference (Claim) N (a) Basic Salary 221,553.00 1,107,765.00 886,212.00 (b) Housing Allowance 205,016.00 1,025,080.00 820,064.00 (c) Transport Allowance 115,649.00 578,245.00 462,596.00 (d) Lunch Allowance 75,976.00 379,880.00 303,904.00 TOTAL 618,194.00 3,090,970.00 2,472,776.00 (2) GRATUITY: 175% of total emolument (175% of N3,090,970.00 1,081,839.50 5,409,197.00 4,327,358.50 (3) 3 MONTHS SALARY IN LIEU OF NOTICE: Salary per month (Credited) - N18,462.75 3 month salary (N18,462 = 75 x 3 months) - N(55,388.25) Differentials N36,925.50 CALCULATION OF PENSION ARREARS BASIS OF CALCULATION: Annual pension salary given N210,185.96 Pension per month (N210,185.96 ÷ 12) N 17,515.50 THE ARREARS (a) From April 2006 – June 2008 = (27 months) = (N17,515 = 50 x 27 months) N472,918.50 TOTAL ARREARS N472,918.50 SUMMARY OF OUTSTANDING BENEFITS 1. Emolument N2,472,776.00 2. Gratuity N4,327,358.00 3. 3 months salary in lieu of notice N 36,925.00 4. Pension deferred N 472,918.50 TOTAL N7,309,978.00 (B) UNION BANK EMPLOYEES SHARES OWNERSHIP SCHEME (UBESORT) a. Allocation 43,189 units b. Right issue and Purchased 4,339 units c. Bonuses i. 2006/2007 Annual Reports (one unit to every ten shares already held) 4,319 units 43,189 units 10 units ii. 2007/2008 Annual Report (One unit to every five shares already held) 9,502 units (43,189 units + 4,339 units + 4,319) 51,849 units 10,369 units 5 units __________ Total units 62,216 units (2) DIVIDENDS OUTSTANDING ON UBESORT (i) 2006/2007 Annual Report (N1 = per share) (43,189 units x N1 = 00) N43,189.00 (ii) 2007/2008 Annual Report (N1 = 00 per share) (43,189 units + 4,339 units + 4,319 units) = (51,847 units x N1 = 00) N51,847.00 __________ Total Dividend Outstanding N95,036.00 Furthermore, the claimant avers that the total entitlement credited to her account so far by the defendant is totally incomplete and therefore unacceptable to her. That the act of deferring her pension entitlement until 4th July, 2008 when she became forty five (45) years does not comply with the current Pension Scheme Law especially as she was compulsorily retired. That she is entitled to her twenty-seven (27) months pension arrears as compulsory retirement amounts to redundancy which requires that pension should commence immediately as contained in article 5 Part II of the Collective Agreement made on the 1st day of June, 2005. The claimant avers and shall contend and lead credible evidence to the effect that she is entitled to all the enumerate benefits and entitlements afore-mentioned. That she mandated her solicitors, Festus Keyamo Chambers who wrote several letters of demand to the defendant, but the defendant refused to reply to any of the letters. That having exhausted every amicable means of resolving this issue she has resorted to filing this suit. That the claimant shall be relying on all the relevant documents which includes but not limited to the following: 1. The sum of N4,327,358.00 (Four Million, Three Hundred and Twenty Seven Thousand, Three Hundred and Fifty Eight Naira) being the balance of gratuity to the claimant for her fifteen (15) years of service to the defendant. 2. The sum of N36,925.50 (Thirty Six Thousand, Nine Hundred and Twenty Five Naira, Fifty Kobo) being the balance of the amount due to the claimant as three (3) months’ salary in lieu of notice of termination of employment. 3. The sum of N92,729.10 (Ninety Two Thousand, Seven Hundred and Twenty Nine Naira, Ten Kobo) to the claimant being the commutation of her 2006 leave days to cash. 4. The interest per annum on the claimant’s allocated shares of 43,189 units from the date of declaration of dividends (2006) until judgment is given. 5. An order of this court compelling the defendant to pay the claimant her outstanding pension from the date of compulsory retirement i.e. 29th day of March, 2006 till June, 2008. 6. An order of this court compelling the defendant to pay the claimant the sum of N472,918.00 (Four Hundred and Seventy Two Thousand, Nine Hundred and Eighteen Naira) being her entitlement for deferred pension. 7. An order of this court compelling the defendant to pay the claimant the sum of N2,472,776.00 (Two Million, Four Hundred and Seventy Two Thousand, Seven Hundred and Seventy Six Naira) being his outstanding emolument owned her by the defendant. 8. An order compelling the defendant, its agent, servants or privies to release the claimant’s shares certificate forthwith. In reaction the defendant admits paragraphs 1 and 3 of the statement of facts only to the extent that the claimant was one of its members of staff that was retired during its corporate restructuring exercise. The defendant avers that the claimant signed a contract of service with the defendant when she was employed by the defendant. That in response to the averment in paragraph 4 of the claimant’s statement of facts, the defendant avers that by virtue of the terms of the claimant’s contract of service the consent of the claimant was not required before she can be retired by the defendant. That by the terms of the claimant’s contract of service with the defendant, the claimant is entitled to one-month notice or one month salary in lieu of notice of determination of his contract of employment. That in line with the said terms of the claimant’s contract of service, the claimant was paid one-month salary by the defendant in lieu of notice upon the claimant’s retirement. That the defendant denies the averments contained in paragraphs 5 and 6 of the statement of claim and will at trial puts the claimant to the strictest proof thereof. That in further denial, the defendant states that it is the contract of service between the claimant and the defendant that governs and regulates the service of the claimant with the defendant and that the defendant is not subject to any alleged Collective Agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). The defendant denies the averments contained paragraph 6 of the claimant’s statement of facts, and avers that the claimant was one of several beneficiaries of the Union Bank Employee Share Ownership Trust Scheme (UBESOT) as the scheme was set up for all members of staff of the defendant. The defendant shall rely on the Trust Deed executed for that purpose. That the Trust Scheme was established in conformity with the then applicable law. The defendant further avers that the Trust Scheme was established for the members of staff who were in the employment of the bank. That in response to paragraphs 7 – 14 of the claimant’s statement of facts, the defendant avers as follows: (a) The said shares contained therein were offered to the claimant in accordance with the terms of the Trust deed. (b) No dividends and/or bonuses were declared, in the defendant’s Annual General Report of 2006 and 2007, hence, there were no dividend and/or bonuses were paid. (c) The claimant was not entitled to any share certificate. In addition, no bonuses and/or dividends were declared, therefore, the defendant could not have produced same. (d) At no time was the claimant prevented from trading with the alleged shares as he was not entitled to any share certificate. (e) The claimant isn’t entitled to any bonus and dividends. (f) No dividend was paid to any shareholder or beneficiaries by the defendant. In response to the averments in paragraph 15 of the claimant’s statement of facts, the defendant avers that the calculation and/or computations in the said paragraph are inaccurate and incorrect. That the claimant is not entitled to the amount stated therein. The defendant avers that the claimant’s terminal entitlement have been correctly calculated by the defendant and fully paid to her. That its act of deferring the claimant’s pension is in line with the applicable law as regards all pensioners in Nigeria. The defendant avers that the claimant is not entitled to any arrears of pension as the defendant’s action was within the ambit of the law. That the defendant shall at trial contend that the claimant is not entitled to the reliefs sought in the statement of facts as there are no bases for same. That the defendant shall at trial contend that the suit is incompetent as the defendant is not the necessary party to this suit and the claimant has no reasonable cause of action against it. The defendant whereof contends that the claimant’s action is frivolous, mischievous, vexatious, speculative and same should be dismissed with substantial cost in favour of the defendant. In reply to the statement of defence, the claimant denied paragraph 6 of the defendant’s statement of defence and states that she is entitled to 3 months salary in lieu of notice and that the one month salary that was given to her was not in line with the terms of her contract of service. The claimant also responded that she and her colleagues signed a collective agreement which is strictly binding on Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). That she was retired compulsorily and was denied her full benefits and entitlements in the main collective agreement which was clearly referred to in the claimant’s employment letter. The claimant denies paragraphs 12 to 14 of the defendant’s statement of defence and insisted as follows: (a) That her terminal entitlement has not been correctly calculated and fully paid by the defendant. (b) The claimant avers that the act of deferring her pension as adopted by the defendant is not in line with the applicable law as regards all pensioners in Nigeria. (c) That she is entitled to arrears of pension. At the trial, the claimant testified for herself as CW1. In her statement on oath, the claimant stated that she is a retired staff of the defendant who was compulsorily retired by the defendant via a letter dated 29th March, 2006 after putting in a meritorious service of fifteen (15) years to the defendant’s company. That the defendant is a company registered in Nigeria under the Companies and Allied Matters Act, 1990 with its head office at No. 36, Marina, Stallion Plaza, Lagos State. That her purported retirement was without her consent or prior notice. That her conditions of service as clearly stated in her employment letter is regulated by the contract of service agreement and Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). That she was not only retired compulsorily and in the most callous manner but denied her full benefits and entitlements in the main collective agreement between the Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) which both herself and the defendant are subject to and which was clearly referred to in her employment letter. The claimant deposed that she is a shareholder under the Union Bank Employee Share Ownership Trust Scheme (UBESOT) introduced by the defendant. That she was allotted 43,189 units of shares by the defendant under the scheme mentioned in the paragraph above. That she also bought 4,339 units of shares at the rate of N20.00 (Twenty Naira) per share under the said scheme and that she has not been opportune to know the dividends and bonuses due and payable on the shares as declared in the Annual General report of the defendant from 2007 till date. That she demanded for the certificate, bonuses and dividends accruable to my shares under the said scheme but the defendant refused, failed and/or neglected to release same to her. That she has been prevented from trading and/or selling her shares under the above-mentioned scheme by the defendant refusal to release the certificate and other benefits accruable to her. That her shareholding and interest under the said scheme has been totally ruined by the wrongful act of the defendant mentioned in paragraphs above, as the said shares are presently worthless in value when compared with their value as at the time of allotment and purchase. That the bonuses for 2006 and 2007 due on her shares of 47,528 units of 46,688 additional units and dividends payable for 2006 and 2007 is N95,036.00 (Ninety Five Thousand and Thirty Six Naira) in accordance with the defendant’s Annual General Report of 2006 and 2007. That dividends and bonuses were declared and paid to other shareholders on the aforementioned shares but the defendant has deliberately refused to release the dividends and bonuses due on her shares. PARTICULARS OF CLAIM (A) COMPUTATION OF BENEFITS BASIS OF CALCULATION:- 16 weeks of total emolument for each year completed Then:- Number of weeks = 16 x 15 = 240 weeks Therefore:- Number of years involved = 240/52 = 5 years Note:- 52 weeks make a year. COMPUTATIONS (1) EMOLUMENT: Amount Credit N Amount Supposed to be Credited N Difference (Claim) N (a) Basic Salary 221,553.00 1,107,765.00 886,212.00 (b) Housing Allowance 205,016.00 1,025,080.00 820,064.00 (c) Transport Allowance 115,649.00 578,245.00 462,596.00 (d) Lunch Allowance 75,976.00 379,880.00 303,904.00 TOTAL 618,194.00 3,090,970.00 2,472,776.00 (2) GRATUITY: 175% of total emolument (175% of N3,090,970.00 1,081,839.50 5,409,197.00 4,327,358.50 (3) 3 MONTHS SALARY IN LIEU OF NOTICE: Salary per month (Credited) - N18,462.75 3 month salary (N18,462 = 75 x 3 months) - N(55,388.25) Differentials N36,925.50 CALCULATION OF PENSION ARREARS BASIS OF CALCULATION: Annual pension salary given N210,185.96 Pension per month (N210,185.96 ÷ 12) N 17,515.50 THE ARREARS (a) From April 2006 – June 2008 = (27 months) = (N17,515 = 50 x 27 months) N472,918.50 TOTAL ARREARS N472,918.50 SUMMARY OF OUTSTANDING BENEFITS 1. Emolument N2,472,776.00 2. Gratuity N4,327,358.00 3. 3 months’ salary in lieu of notice N 36,925.00 4. Pension deferred N 472,918.50 TOTAL N7,309,978.00 (B) UNION BANK EMPLOYEES SHARES OWNERSHIP SCHEME (UBESORT) a. Allocation 43,189 units b. Right issue and Purchased 4,339 units c. Bonuses i. 2006/2007 Annual Reports (one unit to every ten shares already held) 4,319 units 43,189 units 10 units ii. 2007/2008 Annual Report (One unit to every five shares already held) 9,502 units (43,189 units + 4,339 units + 4,319) 51,849 units 10,369 units 5 units __________ Total units 62,216 units (2) DIVIDENDS OUTSTANDING ON UBESORT (i) 2006/2007 Annual Report (N1 = per share) (43,189 units x N1 = 00) N43,189.00 (ii) 2007/2008 Annual Report (N1 = 00 per share) (43,189 units + 4,339 units + 4,319 units) = (51,847 units x N1 = 00) N51,847.00 __________ Total Dividend Outstanding N95,036.00 That the total entitlement credited to her account so far by the defendant is totally incomplete and therefore unacceptable to her. That the act of deferring her pension entitlement until 4th July, 2008 when she became forty-five (45) years does not comply with the current Pension Scheme Law especially as she was compulsorily retired. That she is entitled to her twenty-seven (27) months pension arrears as compulsory retirement amounts to redundancy which requires that pension should commence immediately as contained in article 5 Part II of the Collective Agreement made on the 1st day of June, 2005. That she shall contend and lead credible evidence to the effect that she is entitled to all enumerated benefits and entitlements aforementioned. That she mandated her Solicitors, Festus Keyamo Chambers who wrote several letters to the defendant on demand to the defendant, but the defendant refused to reply to any of the letters. That having exhausted every amicable means of resolving this issue she has resorted to filing this suit. The claimant adopted her witness statement on oath and was cross examined by the defendant’s counsel. The defendant’s witness statement on oath sworn by Mr. Joseph Ejembi, who testified as DW1. He stated that he is a Banker and a Sub-Manager in the defendant bank. That he works in the Human Resources Department of defendant. That by virtue of his position, he is familiar with the facts the he deposed to. That he has the consent and authority of the defendant to depose to this affidavit. That he knows that the claimant was one of the defendant’s members of staff that was retired during the defendant’s corporate restructuring exercise. That the claimant signed and was given a copy of his contract of service with the defendant when he was employed by the defendant. That by virtue of the terms of the claimant’s contract of service the consent of the claimant was not required before he can be retired by the defendant. That by the terms of the claimant’s contract of service with the defendant, the claimant is entitled to only one-month notice or one-month salary in lieu of notice of determination of his contract of employment. That in line with the said terms of the claimant’s contract of service, the claimant was paid one-month salary by the defendant in lieu of notice upon the claimant’s retirement. That he knows that it is the contract of service between the claimant and defendant that governs and regulates the services of the claimant with the defendant and that the defendant is not subject to any alleged Collective Agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). That the claimant was one of several beneficiaries of the Union Bank Employee Share Ownership Trust Scheme (UBESOT) as the scheme was set up for all members of staff of the defendant. That he knows that the Trust Scheme was established in conformity with the then applicable law. That the Trust Scheme was established for the members of staff who were in the employment of the defendant bank. DW1 also deposed that – (a) The said shares contained therein were offered to the claimant in accordance with the terms Trust deed. (b) No dividends and/or bonuses were declared, in the defendant’s Annual General Report of 2006 and 2007, hence, there were no dividend and/or bonuses were paid. (c) The claimant was not entitled to any share certificate. In addition, no bonuses and/or dividends were declared, therefore, the defendant could not have produced same. (d) At no time was the claimant prevented from trading with the alleged shares as he was not entitled to any share certificate. (e) The claimant isn’t entitled to any bonus and dividends. (f) No dividend was paid to any shareholder or beneficiaries by the defendant. That he knows that the calculation and/or computations in the claimant’s in paragraph 15 of the statement of claim are inaccurate and incorrect. That the claimant’s calculation and/or computations in the said paragraph have no basis and are not in line with the terms of the contract of service between the parties. The claimant is not entitled to the amount stated therein. That the claimant’s terminal entitlements have been correctly calculated by the defendant and fully paid to the claimant. That the defendant’s act of deferring the claimant’s pension is in line with the applicable law as regards payment of pension benefit in Nigeria. That the claimant is not entitled to any arrears of pension. That he knows that the claimant is not entitled to the reliefs sought in the statement of facts as there are no basis for same. That the suit is incompetent as the defendant is not the necessary party to this suit and the claimant has no reasonable cause of action against it. That he urged this court to hold that the claimant’s action as frivolous, mischievous, vexatious, and speculative and same should be dismissed with substantial cost in favour of the defendant. DW1 was also cross examined by the claimant’s counsel. In his Final Written Address dated 10th June, 2013 and filed on the same date, the defendant’s Counsel raised eight issues for determination as follows: i. Whether the claimant is entitled to the sum of N4,327,358.00 (Four Million, Three Hundred and Twenty Seven Thousand, Three Hundred and Fifty Eight Naira) claimed as the balance of claimant’s gratuity for her fifteen (15) years of service to the defendant. ii. Whether the claimant is entitled to the sum of N36,925.50 (Thirty Six Thousand, Nine Hundred and Twenty Five Naira, Fifty Kobo) as alleged balance of the amount due to the claimant as three (3) months’ salary in lieu of notice of termination of employment. iii. Whether the claimant is entitled to the sum of N92,729.10 (Ninety Two Thousand, Seven Hundred and Twenty Nine Naira, Ten Kobo) as amount due for the alleged commutation of her 2006 leave days to cash. iv. Whether the claimant is entitled to interest per annum on the allegedly allotted shares of 43,189 units from the date of declaration of dividends (2006) until judgment is given. v. Whether the claimant is entitled to the alleged outstanding pension from the date of her compulsory retirement i.e. 29th day of March, 2006 till June, 2008. vi. Whether the claimant is entitled to the sum of N472,918.00 (Four Hundred and Seventy Two Thousand, Nine Hundred and Eighteen Naira) being her entitlement for deferred pension. vii. Whether the claimant is entitled to the sum of N2,472,776.00 (Two Million, Four Hundred and Seventy Two Thousand, Seven Hundred and Seventy Six Naira) being his outstanding emolument owned her by the defendant. viii. Whether the claimant is entitled to alleged shares certificate forthwith. In respect of issue one, it is the claimant’s case that she was paid the sum of N1,081,893.50 as gratuity by the defendant instead of the sum of N5,409,197.00 which she alleged is the amount she is entitled to as gratuity. The claimant alleged that her gratuity was underpaid by the defendant to the tune of N4,327,358.50 (Four Million, Three Hundred and Twenty Seven Thousand, Three Hundred and Fifty Eight Naira, Fifty Kobo). The defendant’s counsel submitted that the claimant’s claim to her terminal entitlements must be based or derived from the law or terms of the contract service between her and the defendant. That a claim to any entitlement cannot be based on the imagination or conjecture of the claimant. That one problem with the claimant’s claim for the alleged balance of her gratuity is that the basis of the claim and how the claimant computed or arrived at the amount claimed was not pleaded or established by any evidence at trial by the claimant as required by law. How the claimant came about the claim is unknown. Whether the claim is based on the contract of service between the parties, Staff Handbook, a Collective Agreement or even the law remains unknown. That the claimant did not plead or tender in evidence at trial any document containing the contract of service between the parties, staff hand book or any document which forms the basis of the claim or informs her claim for the sum of N4,327,358.50 (Four Million, Three Hundred and Twenty Seven Thousand, Three Hundred and Fifty Eight Naira, Fifty Kobo) as balance of her gratuity. The only document pleaded and relied upon by the claimant in support of her claim is a Collective Agreement and we submit that the claimant cannot rely on the said Collective Agreement in support of her claim, for the reason that the claimant failed to plead facts and lead evidence at trial to establish that she was a member of the signatory Union to the Collective Agreement when she was in the employment of the defendant. The law is that it is only a member of a union that is entitled to claim or take benefit under a Collective Agreement. Having failed to establish her membership of the signatory union to the Collective Agreement, the claimant cannot make any claim or take any benefit under the Collective Agreement. Furthermore, that a claim for gratuity cannot be made as of right it must find support by an agreement between the parties which may be the contract of service, collective agreement or any other contract document between the parties. That the claimant did not plead any fact or lead any evidence at trial to establish the basis of her claim for the alleged balance of her gratuity or establish how he arrived at the figure or amount been claimed as balance of her gratuity. In calculating the alleged balance of her gratuity, the claimant used 175% of total emolument but what informed the use of 175% in calculating the alleged balance was not pleaded or stated anywhere in the claimant’s pleadings. Also that the claimant’s claim for balance of gratuity is a claim for lost of income and thus a claim for special damages. That the law requires that not only must a claim for special damages be particularized but it must be strictly proved, such that would readily lend itself to quantification or assessment. He referred the court to the case of Ngilari v. Mothercat Ltd [1993] 3 NWLR (pt. 636) 626. The defendant submitted that the claimant’s claim for balance of her gratuity is not based on any agreement, collective agreement or any known law in Nigeria. And that the claimant has failed to prove her claim to balance of gratuity, and so urged the court to dismiss the claim. On issue two, the defendant submitted that as with issue one, the claimant did not state how she became entitled to three months salary in lieu of notice. It is known whether the claim is based on the term of the contract between the parties, collective agreement or the law. To the defendant, it is trite that for a claim before a law court to succeed facts to ground and justify the grant of the claim must be pleaded and established by evidence by the claimant. That claims and reliefs are not granted based on the mere or bare allegations. That frivolous, unfounded claim, claims based on the imagination or conjecture of a claimant cannot be granted and are to be dismissed by the court. That the claimant failed to plead facts in her pleadings or lead evidence at trial to establish that she is entitled to three months notice in lieu under a collective agreement, law, or contract between her and the defendant. That there is no paragraph in the entire pleadings filed by the claimant in which the facts that entitled the claimant to the claim was pleaded. That the claimant just made a claim for three months salary without pleading any facts in support of the relief. He cited the cases of Mojekwu v. Mojekwu [1997] 7 NWLR (pt. 512) 283 at 307 and Okolo v. UBN Ltd [1998] 2 NWLR (pt. 539) 618. The claimant urged the court to dismiss this head of claim on the ground that the claimant has failed to plead any facts in support and to lead evidence to establish same at trial. On issue three, the defendant submitted that the claimant’s claim for the sum of N100,000.00 (One Hundred Thousand Naira) as amount due for the alleged commutation of her 2006 leave days to cash is a claim for special damages as it is a claim capable of precise calculation before the commencement of this suit. The claimant failed to particularize her claim in respect of this item of claim as required by law. That how the claimant arrived at the figures or the amount claimed is unstable and unknown. He referred the court to the cases of Nitel v. Oshodin [1999] NWLR (pt. 616) 528 and Alao v. V.C Unilorin [2008] 1 NWLR (pt. 1069) 421. That it is trite law that for a claim for special damages to succeed it must be particularized and specifically proved. He cited the case of Ngilari v. Mothercat Ltd [1993] 3 NWLR (pt. 636) 626. That the failure of the claimant to particularize this claim is fatal to the claim. Furthermore, the defendant submitted that the law requires that a claim for special damages must be strictly proved. He referred the court to the cases of Abeh v. Jabusco (Nig) Ltd [2008] 3 NWLR (pt. 1075) 526, Bal-Nelson (Nig) Ltd v. Moro L.G., Kwara State [2007] 8 NWLR (pt. 1037) 623, Nzeribe v. Dave Eng. Co. Ltd. [1994] 8 NWLR (pt. 367) 124 and Amadi v. Essien [1994] 7 NWLR (pt. 354) 91. On the effect of failure to particularize a claim for special damage, he cited the case of A-G Leventis Nig. Ltd v. Akpu [2002] 1 NWLR (pt. 747) 182. Counsel also submitted that for any relief to be granted by court, it must be supported by the averments in the pleadings. The claimants did not place any fact before this court in her statement of facts in support of her claim. Counsel referred the court to the case of Mojekwu v. Mojekwu [1997] (pt. 512) 283 at 307. It is trite that a litigant seeking a relief has a duty in law to establish her right thereto. That the claimant failed to plead facts in her statement of facts, which are germane to the success of her claim and failed to establish by prove of evidence facts that entitle them to the reliefs. Also that the claimant failed in her pleadings to plead the fact of the unutilized leave period. That the claimant ought to have pleaded the fact of her entitlement to leave whether by virtue of her condition of service or under the law. The claimant ought to have pleaded the leave days to which she was entitled, the leave days that were unutilized leave days. The claimant’s claim in this regard must also be particularized to show how they arrived at the amount being claimed. To Counsel, facts relating to the above issues are germane and material to the success/grant of the claimant’s relief but these facts were neither pleaded nor established by evidence at trial by the claimant. That the claimant’s claim for the sum of N100,000.00 (One Hundred Thousand Naira) as amount due for the alleged commutation of her 2006 leave days to cash was made in isolation of supporting facts. He cited the cases of Keyamo v. LSHA [2002] 18 NWLR (pt. 799) 605 at 615 and Okolo v. UBN Ltd [1988] 2 NWLR (pt. 539) 618. Also that the claimant failed to plead any fact at all (material or immaterial) in support of the relief. The claimant also failed to lead any evidence at trial in support of the claim. Counsel submitted that, there is no iota of oral or documentary evidence placed before this court at trial by the claimant in support of the claim. That it is trite that he who asserts must proof and so the claimant who asserts she is entitled to the claim or relief has a duty in law to prove her entitlement to the relief. However, that the claimant has failed to discharge this duty and urged the court to so hold and to dismiss the claim for want of material facts and/or evidence in support and for failure to particularize the claim as required by law. On issue four, the defendant submitted on the basis of the claimant’s claim for interest on 43,189 units of shares allegedly allocated to the claimant based on defendant’s purported 2006 and 2007 Annual Report, that as stated in paragraphs 10 (b), (c), (e) and (f) of the statement of defence, no dividend was declared by the defendant in 2006 and 2007 Annual Reports as alleged. That the said defendant’s Annual Report of 2006 and 2007 are available and in the claimant’s possession. The said Annual Report of 2006 and 2007 are capable of being produced in court and could have been produced by the claimant who intentionally did not do so. Counsel referred the court to the case of Aremu v. Adetoro [2007] 16 NWLR (pt. 1060) 244 at 261 – 262 paras. G – A, where the Supreme Court stated that a court of law can invoke Section 149 (d) of the Evidence Act (now Section 167 (d) in the Evidence Act of 2011) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Counsel also referred the court to the case of Tsokwa Motors (Nig) Ltd v. Awoniyi [1999] 1 NWLR (pt. 586) 199. To the defendant, the claimant pleaded the 2006 and 2007 Annual Reports but failed to tender the documents in evidence, and so urged the court to invoke the provisions of Section 167 (d) of the Evidence Act, 2011 and hold that the only reason for the claimant’s failure to produce the 2006 and 2007 Annual Reports in court is that if the Annual Reports had been produced it would have been unfavourable to the claimant as the Reports would have shown that no dividend was declared in the said Annual Reports as it is trite that he who asserts a fact must prove. That the burden of proof lies on the claimant who asserts that dividend was declared to establish same by evidence. The defendant has failed to establish her claim to dividend and we urge your lordship to dismiss the claim. Furthermore, that from the documents tendered by parties in their case, it is clear that the said 43,189 units shares are Trust Shares was under a trust scheme known as Union Bank Employee Share Ownership Trust Scheme (UBESOT). That the apportioning of the Trust Share to qualified staff of the defendant is based on status of the staff and for administrative purpose, i.e. for purpose of determining the dividend payable to staff under the scheme. To Counsel the Trust Scheme is administered by Trustees and Managers who holds the shares in trust for the benefit of the employees of the defendant. That trust shares was not bought by the claimant, the claimant renounced her right to the said nominal shares. And the claimant confirmed her trading of the renounced rights to other shareholders within the scheme. That the claimant did not pay a kobo for the shares and ownership of the shares was never vested in the claimant. That the Trust Scheme is governed by Trust Deed which has been put in evidence before the court by the defendant. The trust deed is the only document frontloaded by the defendant. The defendant’s counsel submitted that Clauses 3.02, 3.03, 4.01, 4.02, 4.03 of the said Trust Deed are relevant to this issue and for sake of convenience are reproduced hereunder: Clause 3.02 “The Managers are hereby directed and they hereby agree to cause the Trust Shares to be registered in their name. And it is hereby agreed that any scrip or bonus shares accruing from time to time shall be regarded as part of the Trust Shares to be administered by the Managers hereof” Clause 3.03 “The Managers shall hold the Trust Shares upon trust for the benefit of all bona fide full time confirmed employees of the Bank.” Clause 4.01 “All dividends accruing on the shares held by this Trust shall subject to Article 4.02 below, be paid to the various beneficiaries as soon as practicable after the declaration of such dividends.” Clause 4.02 “The level of individually apportioned employee participation in this Trust Scheme and the distribution of dividends to beneficiaries shall be at the discretion of the Bank, the details of which the bank will provide the Managers from time to time.” Clause 4.03 “Upon the death of an Employee or upon an Employee leaving the service of the Bank for any reason whatsoever, the Managers shall pay to such Employee or her estate any accrued dividends (if any) and he shall forth with cease to be a beneficiary of this Trust Scheme.” To the defendant, the provisions of Clauses 3.02 and 3.03 made it explicit as to the fact that the shares are to be registered in the name of the Managers of the Trust, who are to hold the shares in trust for the benefit of the employees of the defendant. That the claimant never furnished any consideration for the trust as shares were never registered in her name. Clause 4.01, is to the effect that dividends will be paid to the various beneficiaries as soon as practicable after the declaration of such dividends. This clause made payment of dividends subject to declaration of dividends. In the case at hand since there was no declaration of dividends for the period been claimed then no dividend is payable under the scheme for the period. Clause 4.02, is about apportionment of Trust shares to staff of the defendant who are the beneficiaries. As aforesaid the apportioning did not and was not intended to transfer ownership of the Trust shares to the staff, which includes the claimant. The apportioning is done based on status and it determines the dividend to be paid to each staff. Furthermore, that in law, interest may be claimed and awarded in a case in two circumstances; which are: a. Where it is claimed as of right; b. Where there is a power conferred by statute to do so in exercise of the court’s discretion, citing the case of Ekwunife v. Wayne West Africa Ltd [1989] 5 NWLR (pt. 122) 422 at 455. That the claimant has failed to meet with the requirements of the law by her failure plead facts, which entitle her to claim interest on the alleged 43, 189 units of shares allotted to her. To counsel interest may be claimed as of right where it is contemplated by agreement between the parties or under mercantile custom or under a principle of equity, such as breach of fiduciary relationship. However, where the claim for interest is under a statute, it is not necessary and required of the beneficiary of the statutory provision to state in the endorsement of her claim on the writ or to plead in her statement of claim the fact or the grounds of her entitlement thereto. The defendant also submitted that for a party to be awarded interest not provided for by statute, there must be evidence of the right to that sum on record. He referred the court to the cases of Himma Merchants Ltd v. Aliyu [1994] 5 NWLR (pt. 347) 667 and A.G Ferrero & Co. Ltd v. Henkel Chemicals (Nig.) Ltd [2011] 13 NWLR (pt. 1265) 592. That the claimant did not plead the basis of her claim for interest (whether it is by agreement between the parties or by mercantile custom relevant to the transaction between the parties) or lead any evidence at trial on facts thereon. He cited the cases of A.G Ferrero & Co. Ltd v. Henkel Chemicals (Nig.) Ltd (Supra) and Union Bank of Nigeria Ltd v. Prof. A.O. Ozigi [1994] 3 SCNJ 42. The defendant therefore submitted and urged the court to hold that the claimant, having failed to plead and lead evidence on facts, which entitle him to claim interest on the alleged 43,189 units of shares allotted to her, is not entitled to the award of interest. Also that the claimant has failed to establish her claim to interest being purported interest due and payable to the claimant on 43,189 units of trust shares and urged the court to dismiss the claim. Furthermore, that the defendant’s case as stated in paragraph 10 is that the defendant declared no dividend and as such, no dividend could be paid. The claimant who alleged there was declaration of dividend has a burden to prove same but has failed to discharge this burden and having failed to discharge the burden the claim must necessary fail. The defendant therefore urged the court to dismiss the claims that border on shares. The defendant argued issues five and six together for the reason that both issues relates to payment of pension submitting that in the entire pleadings filed by the claimant, the claimant failed and did not plead the facts and the basis of her claim to pension. The claimant also did not lead any evidence at trial in prove of her claim for pension. That a relief sought by a party to a suit does not constitute part of the facts in the pleadings and it cannot be granted unless there are facts contained in the party’s leading in support of it upon which evidence can be called. He referred the court to the case of Ishola v. UBN Ltd [2005] 6 NWLR (pt. 922) 422. Counsel submitted that the claimant’s did not plead any facts or lead any evidence at trial to establish her claim to pension. That the claimant’s claim to pension is bereft of material facts and evidence required by law for the claim to succeed. That the case of the defendant as stated in paragraphs 13 and 14 of the statement of defence is that its action of deferring the defendant pension is in line with the applicable law. Counsel submitted that the current Pension Scheme Law is the Pension Reform Act 2004 Section 3 (1) of the Pension Reform Act 2004 provides that: “Subject to Section 3(2) as from the commencement of this Act, no person shall be entitled to make any withdrawal for her retirement savings account opened under Section II of the Act, before attaining the age of 50 years.” The defendant’s counsel submitted that the claimant did not plead any fact or lead any evidence at trial to bring her within the exceptions stated in Section 3(2) of the Act, therefore claimant who has not attained the age of 50 years is not entitled to payment of pension under the current Pension Scheme Law and cannot complain of the deferment of payment of her pension until he has attained the rightful age stipulated by the pension law, and urged the court to dismiss claimant’s reliefs five and six for being frivolous and lacking in merit. On issue seven, the defendant’s counsel argued that as with reliefs one, two, five and six the claimant did not state in her pleadings the basis of or how she became entitled to the sum of N2,472,776.00 (Two Million, Four Hundred and Seventy Two Thousand, Seven Hundred and Seventy Six Naira) being her outstanding emolument owned her. Also that the claimant did not allege that she was not paid her salary and/or emoluments when he was in the employment of the defendant and the defendant is at loss and do not know the emoluments that is been claimed by the claimant. That the claimant’s total emolument when she was in the employment of the defendant was the sum of N618,194.00 per annum. That the sum of N2,472,776.00 (Two Million, Four Hundred and Seventy Two Thousand, Seven Hundred and Seventy Six Naira) being claimed as emolument, is claimant’s salary for about 4 years when she was in the service of the defendant. What is more is that the period for which the emolument is being claimed was not stated or pleaded, and so whether it is for the first five years of the claimant’s employment or the last two years of the claimant’s employment with the defendant is not pleaded and remains unknown. Also whether the claim is based on contract of employment, collective agreement, or the provisions of any law is unknown. That the claimant did not place the terms of her contract of service with the defendant before the court at trial. The only evidence placed before the court by the claimant in support of its claims is a collective agreement, which as earlier submitted, the claimant cannot rely on in support of her case, for the reason that the claimant failed to plead and to establish by evidence that he is a member of the signatory trade union to the collective agreement and as such cannot take any benefit under the collective agreement. Counsel submitted that the claim lacks basis in both law and fact as the claimant failed to plead the basis of her entitlement to the claim and also failed to lead evidence in support thereof, and accordingly, urged the court to dismiss the claimant’s claim. On issue eight, the defendant’s counsel contended that from the pleadings, documents filed by the parties and the evidence placed before the court at trial, it is not in dispute that the defendant is a bank. That the names of banks in Nigeria is gazetted and is fact of which this court can take judicial notice of. That it is also pertinent to state that the defendant as bank is not permitted under Nigeria law to work as or carry out the work of Registrar of Company. That share certificates are issued by companies known as Registrars. That the claimant’s reliefs for an order compelling the defendant to release her shares certificate is misconceived, as it will be improper for the court to grant such a relief because it will be impossible of performance. That the defendant will not be able to carry out the order for the reason that share certificates are issue and released by Registrar of Company and Nigeria law does not allow defendant (a bank) to act as a Registrar of Company. To counsel, what the claimant ought to have done is to make the Registrar of Company to the defendant a party to this suit, for this relief to be granted. That the claimant having failed to make the Registrar of Company to the defendant a party to this suit, this relief cannot be granted without the presence of the Registrar to the defendant in this suit as the defendant does not issue or release share certificates. Furthermore, and as aforestated, from the Share Allocation Letter (UBESOT) frontloaded by the Section C thereof shows that the claimant renounced her right to the shares and having done so cannot make any claim to any share or share certificate. The defendant therefore urged the court to dismiss the claimant’s claims for failure to particularize the claims for special damages, for failure to discharge the burden of proof to establish her claims, for want of material facts and evidence in support of her claims and for lacking merit. The claimant’s counsel on his part raised two issues for determination: (i) Whether the contract of employment between the claimant and the defendant is subject to the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). (ii) Whether the claimant is entitled to the reliefs sought before this court? Arguing issue one, the claimant’s counsel submitted that the contract of employment between the claimant and the defendant is subject to the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). That the claimant in paragraph 5 of her statement of facts alluded to her letter of employment and the said letter of employment is item 2 of the claimant’s list of documents dated 19th December, 2011. Paragraph 2 of the defendant’s letter captioned “Application for Employment” dated 13th August, 1991 read thus: “You are entitled to House and Transport Allowances of 1,200 and 1,080 respectively per annum. In terms of collective agreement, other benefits include:…” (Emphasis mine) That by the above quoted paragraph of the claimant letter of offer of employment it is settled that the collective agreement is the document that governs the incidence of the claimant’s employment. That the general position is the collective agreements are not intended or capable of giving individual employees a right to litigate over an alleged breach of the agreement as the claimant is seeking to do in this case. However, that for a collective agreement to be enforceable, the employer must have adopted same either expressly or by implication otherwise the employer would not be bound by the agreement. He referred the court to the case of Rector, Kwara Polytechnic v. Adefila [2007] 15 NWLR (pt. 1056). That as shown in the defendant’s letter to the claimant dated 13th August, 1991 the collective agreement expressly incorporated the collective agreement to govern the claimant’s employment with the defendant in this case. The claimant’s counsel also submitted that the claimant’s letter of employment has incorporated the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) by reference hence the claimant is eligible to claim from the said collective agreement and urged the court to so hold. That contrary to the submission of Learned Counsel to the defendant that the claimant is under obligation to prove that she is a member of the signatory union to the collective agreement, that such obligation is discharged in cases where the letter of employment expressly incorporates the collective agreement as one of the contract document between the employer and the employee like in the instance case. See the case of Rector Kwara Polytechnic v. Adefila (supra). That it is the evidence of the claimant that her employment with the defendant was regulated by the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) but this evidence was clumsily denied by the defendant in paragraph 8 of its statement of defence when it alleged that the defendant is not subject to the collective agreement and failed to refer the court to the collective agreement that binds it and the claimant. With respect to what amounts to a denial in pleadings, he cited the case of Jacobson Engineering Ltd v. U.B.A Ltd [1993] 3 NWLR (pt. 283) 586. It is also the contention of the defendant that by the claimant’s contract of service with the defendant, the claimant is only entitled to one month notice or one month salary in lieu of notice of termination of the claimant’s employment. That NO contract of service agreement between the claimant and the defendant was produced before this court to substantiate the defendant contention. It is trite that he who asserts must prove. That unlike in Criminal Cases, in Civil Case, the phrase “burden of proof has two distinct and frequently confused meanings”. First, it may mean the burden of proof as a matter of law and the pleadings usually referred to as the legal burden or the burden of establishing a case. Secondly that the burden of proof in the sense of adducing evidence often referred to as the evidential burden. While the burden of proof in the first sense is always stabic or static, the burden of proof in the second sense may shift constantly as one scale of evidence or the other preponderates. In other words, that while the burden of proof in the sense of establishing a case initially lies on the Plaintiff, the proof or rebuttal of issues which arise in the course of proceeding may shift from the Plaintiff to the defendant and vice versa as the case progresses. Counsel referred to the case of Ezemba v. Ibeneme [2004] 14 NWLR pt. 894. It is trite that my lord cannot speculate on the content of a contract of service that is not produce before this court, citing the case of Olalomi Ind. Ltd v. N.I.D.B. Ltd [2009] 16 NWLR pt. 1167 p. 266 pp. 303 – 304, paras. H – B. Learned Counsel further submitted that it is settled that content of a written document can only be proved by the production of the said document before the court. He referred the court to the case of Chia v. Uma [1998] 7 NWLR pt. 556 p. 98, para. D. To counsel, an assertion remains as an assertion unless it is proved by evidence. That the defendant has failed to adduce evidence in support of its assertion that the contract of service between the claimant and the defendant stipulates one month notice or one month salary in lieu of notice for determination of claimant’s contract of employment. Counsel also submitted that the document that governs the relationship of the claimant and the defendant is the collective agreement which is before the court and it has been produced by the claimant who wishes to rely on it as the basis of her claims before this court. Also that by virtue of item 2 on the claimant’s list of documents dated 19th December, 2011, the defendant has incorporated the collective agreement. That the incidence of the claimant employment with the defendant is governed and regulated by the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), and urged the court to so hold and resolve issue one in favour of the claimant. ISSUE TWO Whether the claimant is entitled to the reliefs sought before this court? My lord, one of the claimant’s prayers before this court is the payment of the sum of N36,926.50 (Thirty-Six Thousand, Nine Hundred and Twenty Six Naira, Fifty Kobo) being the balance of the amount due to the claimant as three (3) month salary in lieu of notice of termination of employment in accordance with Article collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). The collective agreement is listed as item 1 on the claimant list of document dated 19th day of December, 2011. By the defendant’s letter dated 29th day of March, 2006 the claimant was paid one month salary in lieu of notice contrary to the express provision of the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). It is instructive to add that the defendant did not show to this court the basis for payment of one month salary in lieu of notice of termination as it failed to produce the purported contract of service between it and the claimant. It is our humble submission that the claimant is entitled to the balance of her salary in lieu of notice in accordance with Article 5 paragraph (e) of the collective agreement incorporated by reference by the claimant’s letter of offer of employment dated 13th August, 1991, the law is settled that parties are bound by the terms of their agreement. He referred the court to case of JFS Inv. Ltd. v. Brawal Line Ltd [2010] 18 NWLR pt. 1225 p. 495 pp. 531, paras. B – C; 543 paras. B – D the Supreme Court held inter alia that: “Where the terms of a contract between parties are clear and unambiguous, and there was no fraud, duress or misrepresentation by one of the parties to the contract, the parties are bound by the terms of the contract and the court will not allow either party to read into such contract terms on which there was no agreement between the parties.” We submit that the defendant is bound by its letter of Offer of Employment dated 13th August, 1991 and by the same token bound by the collective agreement that was incorporated by the said letter of offer of employment. We humbly submit that the defendant is bound to the sum of N36,925.50 (Thirty-Six Thousand, Nine Hundred and Twenty-Five Naira, Fifty Kobo) being the balance of the amount due to the claimant as three (3) month salary in lieu of notice of termination. We urge your lordship to so hold. Your lordship, the claimant is also claiming the sum of N3,060,090.25 (Three Million, Sixty Thousand and Ninety Naira and Twenty Five Kobo) being the balance of the claimant’s gratuity as computed under Article 5 (d) (i). My Lord, by virtue of Article 5 (a) of the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), Redundancy is defined as: “Redundancy is understood to mean and means in the context of the Agreement, the involuntary loss of employment through no fault of the employee caused by excess of man power or contraction of available work through causes beyond the control of the Employer.” Sir, the fact that the claimant was compulsorily retired without her consent was never disputed by the defendant only that the defendant in paragraph 5 of its statement of defence asserted that it did not need the consent of the claimant before it can retire the claimant by virtue of the unnamed contract of service between it and the claimant that was never produced before this court. We submit with respect that the claimant’s case is conveniently situated under Article 5 (a) of the collective agreement as the claimant was compulsorily retired without her consent by virtue of the defendant’s letter of 29th March, 2006. Sir, by virtue of Article 5 (d) (i) the claimant is entitled to 14 weeks (having worked for 14 years and 8 months) total emolument for each completed year of service. My lord the breakdown of the claimant gratuity is as contained under paragraph 15 A of the claimant’s amended statement of facts. By the defendant’s letter dated 29th day of March, 2006, the defendant only calculated one (1) year terminal emolument instead of four (4) years terminal emolument as shown in the claimant breakdown in paragraph 15 Amended Statement of Facts which was done in line with Article 5 (d) (i) of the collective agreement between Nigeria Employers’ Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). We submit that the Defendant’s submission that the claimant did not tender any document to show the basis for the Claimant’s claim for the balance of her gratuity is not only erroneous but also misleading. We therefore urge your Lordship to jettison the submission. We submit with respect that the claimant is entitled to the balance of her gratuity as the defendant has failed to justify or establish basis for paying the claimant’s one (1) year terminal emolument as against four (4) years terminal emolument provided for in the Collective agreement that is binding on the parties. On whether the claimant is entitled to any return on her shares under the Union Bank of Nigeria Plc Employees Share Ownership Trust (UBESOT) Scheme. We submit with respect that the Claimant is entitled to shares certificate and declared dividends over her shares in the UBESOT Scheme. My Lord, the pertinent question is whether the Claimant offered any consideration whatsoever for the shares allotted to her. With respect we submit that the claimant offered consideration for the shares allotted to her by the defendant. This can be seen from the Defendant’s letter dated 25th January, 2007 wherein eligibility for the allotment of the shares under the UBESOT Scheme is for staff who has served up to ten (10) years in the bank (defendant) as at 31st March, 2005. We submit that consideration can be in cash or kind. In the circumstance of the claimant’s case what she offered as consideration is the fulfillment of the eligibility requirement having worked for the defendant for ten (10) years as at 31st March, 2005. My lord, asides the allotted 43, 189 units of shares to the Claimant by the defendant. The claimant in paragraph 10 of her Statement of Facts averred that she bought 4,339 units of shares at the rate of 20.00 (Twenty Naira) per share. Photocopy of the Bank cheque dated 26th of February, 2007 issued to the Defendant by the Claimant for the payment of 4,339 units of shares was frontloaded and the claimant’s averment was never challenged neither was the document challenged. Sir, we submit that the defendant’s Counsel Submission that the claimant renounced the shares allotted to her is untrue and a fallacy as shown in paragraph 9 and 10 of the Claimant’s Statement of Facts the claimant in addition to the nominal shares of 43,189 shares that was allotted to her for which the claimant had fulfilled the only condition for eligibility of the shares, also paid for the additional right issued of 4,339 units of shares. The averment in paragraph 10 in particular was never challenged. On the attitude of the Court on unchallenged averment or evidence we commend the case of Veepee Ind. Ltd. Vs Cocoa Ind. Ltd [2008] 13 NWLR part 1105 p.486 particularly p.517, paras. C-D. My Lord, the Defendant’s letter dated 25th January, 2007, expressly provides as follows: “The shares will be held in trust for the members of the scheme until severance from the service of the bank while the holders continue to enjoy the accruing benefits dividends/bonuses.” Also, it is worthy of note that the claimant received the defendant’s letter dated 25th January, 2007, almost a year after she was compulsorily retired vide the defendant’s letter of 29th March, 2006. This without more shows that the defendant had the intention of bringing the claimant’s shares entitlement to her notice even after severance to ensure that the shares are released to her. Sir, it is palpable from the above quoted section of the defendant’s letter of 25th January, 2007, that the shares under the UBESOT Scheme was to be held in trust for the claimant until severance which naturally follows that after severance the shares are to be released to the claimant. Your Lordship, we submit that it is the duty of the Defendant to compute and ensure payment of the Claimant’s pension into the claimant’s pension manager’s account. My Lord, Section 39 (1) (a) of Pensions Reform Act Cap. P4 LFN, 2004 provides thus: “(a) The pension scheme shall be fully funded and in case of any defined contribution scheme, contributions in favour of each employee together with the attributable income shall be computed and credited to a retirement savings account opened for the employee.” It’s our humble submission that that only way the defendant would have discharged the legal burden placed on it by Section 39 (1) (a) of the Pensions Reform Act is to show this Court by adducing credible evidence that it has paid the claimant outstanding pension. We urge your lordship to mandate the defendant to pay the outstanding pension owed to the claimant. And ultimately grants the claimant reliefs as contained on the General Form of Complaint and the Statement of Facts. We humbly urge your Lordship to grant the Claimant’s prayers sought in this suit. HON. JUSTICE J. T. AGBADU-FISHIM