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The claimants took up a complaint against the defendant dated 10th March 2011 but filed on 11th March 2011. By order of Court made on 5th July 2011, leave was grated the claimants to amend their originating processes to reflect the name of the defendant to be “Wema Bank Plc”. By the amended complaint and statement of facts, the claimants are praying for the following reliefs – a) A declaration that the non-remittance of the claimants’ contribution to the National Housing Fund before their disengagement is wrongful and illegal. b) A declaration that the refusal of the defendant to issue share certificates to the claimants before their disengagement is wrongful and illegal. c) A declaration that the disengagement of the claimants who served the defendant for over 10 years is wrongful and illegal. d) An order directing the defendant to refund the claimants’ contributions to the National Housing Fund forthwith. e) An order directing the defendant to issue the claimants with share certificates as allotted in December 2004. f) An order directing the defendant to substitute letters of disengagement with letters of retirement for the claimants who had served for 10 years and above. g) An order directing the defendant to pay the outstanding gratuity, pension and medical allowance of the claimants forthwith. h) An order directing the defendant to withdraw the conversion of the claimants’ housing allowance to loan forthwith. i) An order directing the defendant to make ex-gratia payment of 2 years basic salary and allowances to the claimants forthwith. j) An order directing the defendant to pay the claimants according to the statement of facts herein. k) Interest at the rate of 21% from April 2006 till judgment and thereafter at the rate of 10% until sum is liquidated. Accompanying the amended complaint and amended statement of facts is a notice to produce the following documents – 1. Original staff gratuities as calculated by the bank as at 30-06-2001. 2. Original copy of an internal memo on Staff Share Acquisition dated December 16, 2004. 3. Original copy of the Report of the Establishment Committee Meeting of the defendant Bank held on 12/10/2005. 4. Original copy of the minutes of the 17th meeting of the Board of Directors of the defendant bank held on 19/10/2005. 5. Original copies of letters from Falana & Falana’s chambers dated 14th September 2006, and the response to Falana & Falana’s letter by the defendant dated 4th and 25th October 2006. 6. Original copy of the Report and Recommendation of the Board of Trustees of the Staff Retirement and Pension Scheme dated 15th June 2001. Earlier, the claimants had filed their list of witnesses, list of documents to be relied upon at the trial and copies of the documents. The defendant entered appearance and filed its memorandum of appearance, statement of defence, list of witness, list of documents to be relied upon and copies of the documents. The claimant reacted by filing a reply to the defendant’s statement of defence, additional list of documents and copies of the additional documents. The court then ordered that parties should file sworn depositions of their respective witnesses. This the parties did. At the trial, the claimant called two witnesses: Aderemi Ademulegun, the 1st claimant, testified as CW1 and Aina Kehinde, the 4th claimant, testified as CW2. For the defendant, Ahmed Babalola, a lawyer working with the defendant as Head Outsourcing in Human Resources Department, Head Office of the defendant, testified as DW. At the close of trial, parties were asked to file their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant’s written address is dated and filed on 13th February 2014. That of the claimants is dated 17th March 2014 but filed on 18th March 2014. The defendant’s reply on points of law is dated and filed on 8th May 2014. The case of the claimants is that their entitlements were underpaid by the defendant; that housing allowances were deducted from the entitlements of the claimants when the defendant determined them; three months’ salary in lieu of notice was not paid; share certificates were not issued to them after paying all the money for the shares; that they were not in any way indebted to the defendant; that ex-gratia sums which they were entitled to were not paid to them; that money was deducted by the defendant from the salary of the claimants when they were in the service of the defendant but which were not remitted to the National Housing Fund by the defendant; that the said money be refunded to the National Housing Fund; that the disengagement of the claimants who served the defendant for over 10 years or more be substituted to retirement according to the defendant’s policy; that the calculation of their entitlement was not clear; and that the defendant to pay the outstanding gratuity, pension, housing and medical allowance of the claimants to them as calculated by the claimants herein. The case of the defendant is that the claimants have been paid their entitlements in full and so the instant action is frivolous, vexatious and an abuse of court process. To show this, the defendant took off in its written address with what it termed “Facts with Reference to Exhibits”, making the following submissions in the process – (1) Staff gratuity as calculated by the bank as at 30th June 2011 – Exhibit A: That the claimants were paid their gratuities and pension based on this calculation which was the provident type scheme. The claimants admitted that they were in the employment of the defendant when the bank converted from pension scheme provident type. (2) An Internal Memo on Staff Share Acquisition dated December 16, 2004 – Exhibit B: That this document showed that the claimants were given loan for which they purchased the shares which they were asking for the share certificate late in this matter. (3) Newspaper Advertisement in the Punch Newspaper of Wednesday, February 14, 2007, page 65 – Exhibit C: That this said publication was of no relevance in the matter. (4) A copy of the Report of Establishment Committee Meeting of the Defendant’s Bank held on 12th October 2005 – Exhibit D: That everything on this paper is a proposal and a recommendation. It is called Establishment Committee Paper – October 2005. It is therefore not relevant. (5) A copy of the Minutes of the 17th Meeting of the Board of Directors of the Defendant’s Bank held on 19th October 2005 – Exhibit E: That this document was not signed and was not on the letter head of the defendant. The defendant denied it in their statement of defence. The document which was frontloaded in titled Minutes of the 177th Meeting of the Board of Directors and not 17th Meeting of the Board of Directors. It is therefore of no relevance. (6) Letters of offer of appointment of some Claimants, letter of disengagement or retirement – Exhibit F: That the defendant never denied that the claimants worked for them. The letter of disengagement or retirement showed that the claimants were paid their severance entitlements which included their gratuity. The claimants have not said that the defendant did not pay them the amount stated in their letters of disengagement or retirement. They are rather contending that they were under-paid as per paragraph 4 of their amended statement of facts where they said “the gratuities of the claimant were highly underpaid and ex-gratia payment was never made or remitted to the claimants”. (7) A letter from Falana & Falana’s Chambers dated 14th day of September 2006 and the response to Falana & Falana’s letter by the Defendant dated 25th October 2006 – Exhibits G – G1: That the letters of reply from the defendant to the claimant dated 4th and 25th October 2006 were marked “without prejudice”. That these letters are very relevant to this matter, urging the Court to look at it. By section 196 of the Evidence Act 2011 a statement in any document marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceedings in proof of the matters stated in it. The defendant submitted that the reply from the defendant to the claimants’ counsel was not made in the course of negotiation for a settlement of a dispute out of court. That a document is marked “without prejudice” does not necessarily make it inadmissible. It is the content that determines whether it is admissible or not. The defendant’s letters of 4th and 25th October 2006 were only responding to the issues raised in the letter from Falana & Falana’s Chambers. That it is, therefore, relevant that the Court should look at it. The defendant further submitted that even though a document is not marked “without prejudice” but made in the course of negotiation of a dispute, it will not admissible. That in Fawehinmi v. Nigerian Bar Association (No. 2) [1980] 2 NWLR (Pt. 105) 358 at 622 and 623, the Supreme Court held that “without prejudice” protects subsequent and even previous correspondence and admission made during a bona fide attempt to settle a dispute. It further held that any correspondence made along the line of bona fide settlement of dispute, even if not expressly marked so is inadmissible, referring to UBN Plc v. Okoro [2002] FWLR (Pt. 122) 24 CA. In Re Daintrey, ex parte Holt (1893) 2 QB 116 at 119 – 120, Williams J. held thus: ‘In our opinion the rule which excludes documents marked “without prejudice” has no application unless some person is in dispute or negotiation with another and terms are offered for settlement of the dispute or negotiation and it seems to us that the judge must necessarily be entitled to look at the document in order to determine whether the condition under which alone the rule applies, exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiation and an offer the rule has no application’. That there was no negotiation or settlement of any dispute when the defendant’s letter of 25th October 2006 was written and that may be why this Court acted on the same letter in the case of Oladosun Yisau Lasun & 92 ors v. Wema Bank Plc unreported Suit No. NIC/18/2008 delivered on August 10, 2011 and Busari Giwa Ademola & 34 ors v. Wema Bank Plc unreported Suit No. NIC/19/2008 delivered on August 10, 2011. (8) Wema Bank Plc Staff Retirement And Pension Fund, Members Handbook – Exhibit H: That the defendant has not acted against the Handbook. The claimants’ pensions and gratuities were calculated and paid in accordance with the Provident Type Scheme. (9) Report and Recommendation of the Board of Trustees of the Staff Retirement and Pension Scheme to Management on the Conversion of the Existing Pension Scheme to Provident Type. That this document is only a report and recommendation. However, both parties relied on the same document and the claimants’ witnesses agreed that they were in the employment of the defendant when the bank changed from existing pension scheme to the provident type. At pages 3 of 4 of the document, paragraphs 3 and 4 state that the expected contribution ratio of employer to employee shall be 20:5 respectively. Contribution shall be made into the fund using full (100%) of the current components of total emolument, viz – (i) Basic Salary (ii) Housing Allowance (iii) Transport Allowance, and (iv) Luncheon. That the defendant pleaded in paragraph 4 of their statement of defence that this was the basis for the calculation of the claimants’ pensions and gratuities which were paid to them as per their disengagement letters. The defendant then framed five issues for the determination of the Court, namely – 1. Whether considering the issue of share certificate and National Housing Funds contribution this action is premature. 2. Whether the claimants were paid their pensions and gratuities in accordance with the provident type scheme on lump sum payment. 3. Whether ex-gratia payment is a right. 4. Whether the claimants are entitled to pay back all loans and allowances given to them before their disengagement. 5. Whether the claimants have proved their claim. Regarding issue 1, the defendant submitted that the claimants’ claim of National Housing Fund contribution is premature. That where a deduction made is statutory as in this case, the claimant can only asked that the money be remitted to the said statutory authority and not that the money be paid to them. That the defendant pleaded in paragraph 8 of their statement of defence that any contribution to the National Housing Fund is reimbursed by the Fund after a staff must have attained a certain age. That in paragraphs 5, 6 and 7 of the defendant’s statement of defence, the defendant stated that all deductions made from the claimants’ salaries in respect to their contributions to the National Housing Fund were duly remitted to the National Housing Fund and reference numbers were issued to those whose deductions were remitted. That the claimants with reference numbers should go to the National Housing Fund and make their claim and those without numbers should make an application for refund to the defendant. The defendant continued that during the trial, the claimants never showed any application they made to the National Housing Fund for their money. A demand from the National Housing Fund for payment of their contribution can never be made orally as the claimant would like this Court to believe. If the claimants wrote to the National Housing Fund for payment and no money was remitted from the defendant Bank, the National Housing Fund would definitely reply to say so. That no such letter was tendered before this Court. To the defendant, those without reference numbers were asked to apply to the defendant for a refund. There was no application to the defendant from the claimants. The letter from Falana & Falana Chambers dated 14th September 2006 to the defendant made all these demands and the defendant’s reply dated 25th October 2006 clearly explained to the claimants what to do. But the claimants failed to follow the procedure. That it is only when the claimants have complied with the procedure and the defendants failed to pay them that their right of action will be activated. That this action is, therefore, premature. The defendant went on that in its letter dated 25th October 2006 to Falana & Falana’s Chambers, the defendant informed the claimants that the bank has requested Wema Registrars to issue share certificates to the disengaged staff for the value of the deductions made from their monthly salaries and allowances at the point of their exist from the bank. The claimants did not go or write to the Wema Registrar demanding for their certificates. The defendant had averred in paragraphs 9, 10, 11 and 12 of their statement of defence that the claimants were given share loans and the share certificates were issued as if the shares had been fully paid and allotted. The loans were given to the claimants via internal memo from the office of the General Manager (Resources) dated December 16, 2004. The loan was not compulsory and the claimants have not argued that they were forced to take the loan to acquire the shares. That the defendant was only trying to make them part owners of the bank. The claimants refused to sign the share transfer forms because they wanted the share certificates to be given to them even when they have not finished paying the loan before their disengagement. They wanted the loan written off. That the claimants are aware that it is after the shares are transferred to the defendant that they will be issued shares according to the amount paid. They also refused to pay for the balance of the loan in order to collect their shares as issued. That the defendant did not refuse to give them their shares but the claimants have only failed to comply with procedural requirement to have their paid up share certificates. It is only when this done and the shares are not given to them that cause of action will arise. In paragraph 7 of the defendant’s statement of defence, the defendant stated that the disengaged staff without reference numbers were advised to make an application for refund to the defendant. The claimants never made the application. This action is therefore premature as it is only maintainable after those without reference numbers had made the application for refund and were not paid. The defendant took up issues 2 and 3 together. To the defendant, Ahmed Babalola (DW) who testified on behalf of the defendant stated that all facts relating to this matter were well documented. He stated that the claimants’ entitlements were paid to them as per their letters of disengagement. That the claimants are not saying that they have not been paid their entitlements; they are only saying that they were underpaid without stating the basis at which they arrived at their calculation. One of the bases for the underpayment was their belief that they were entitled to ex-gratia payment. According to Aderemi Ademulegun (CW1) during cross-examination on 5th March 2013, they calculated their entitlements based on facts on their hands. These facts according to him are based on the frontloaded documents. The claimants have not frontloaded any document showing the basis of their calculation outside the one used by the defendant. He admitted that they were at the bank when the defendant changed from pension scheme to the provident type which was the basis for the calculation. The defendant then referred the Court to its decision in Oladosun Yisau & 91 ors v. Wema Bank Plc unreported Suit No. NIC/18/2008 the judgment of which was delivered on August 10, 2011 (and whose reliefs and exhibits are the same with the present action), where this Court held as follows – In response to the letter of the claimants’ counsel of September 14, 2006, the defendant wrote its letter of October 25, 2006 showing that the bank had requested Wema Registrar to issue share certificates to retired staff for the value of deductions made from their monthly salaries and allowances. The letter gave further instructions on the steps the retirees should take on this or on how to claim their contributed money in contemplation of their share certificate and in respect of the money they contributed on Housing Fund. The claimants did not show the court that they have complied with the guidelines after which the defendant still failed to issue their certificate or refund their contributions. To us this is not an admission but it is an issue of noncompliance with laid down procedure for activating a right or an entitlement against the claimants. We agree with the defendant and hold that the claimants’ claims a, b, d and e on National Housing and share certificates are premature before the court. That this Court in same case further held that – On their gratuity as claimed, the claimants’ counsel argued that they are based on (a) staff gratuity as calculated by the bank as at June 30, 2001 and on (b) Report and Recommendation of the Board of Trustees of the Staff Retirement and Pension Scheme to management on the conversion of the existing pension scheme to provident type. The defendant agreed with base (a) and confirmed that that was what the bank used to calculate the claimants’ gratuity as shown above. From our perusal, the relevant portion of the claimants’ document (b) is entitled ‘Recommendation’. The claimants did not show that this recommendation was approved by the defendant. In effect, it does not give any right to the claimants hence it is not applicable. We hold that the claimants are not entitled to any additional gratuity outside the provident scheme changed to. To the defendant the claimants admitted in the present case that they were in the employment of the defendant when they changed to the provident type scheme on lump sum payment. That this Court further held in Oladosun Yisau & 91 ors v. Wema Bank Plc as follows – On the claimants’ claims for two years ex-gratia payment against the defendant it suffices to say that ex-gratia payment is not obligatory. It is given as a favour with no acceptance of any liability. Its payment is not legally required. The defendant also referred the Court to its decision in Lateef Alao Adesigbin and anor v. Nigeria Breweries Plc unreported Suit No. NIC/8/2008 the judgement of which was delivered on July 15, 2009, where this Court held as follows – The claimant canvassed intensely on the fact that they are entitled to additional ex-gratia payment of twenty or eleven weeks salary for every year spent in the respondent's industry. In PAN v. Oje, supra, at pages 635 – 636, ex-gratia is defined as a term applied to anything accorded as a favour as distinguished from that which may be demanded ex-debito as a matter of right. It also connotes something given out of grace, indulgence or gratuitous. Ex-gratia payment, without more, recognizes no legal obligation to pay. Thus ex-gratia payment simplicita and in the instant case, in our considered opinion, is not such that this Court can compel to be paid because it has no legal obligation and we so hold. Further referred to the Court is Busari Giwa Ademola & 34 ors v. Wema Bank Plc unreported Suit No. NIC/19/2008 the judgment of which was delivered on August 10, 2011 the facts of which are also the same with the present suit. In that case, this Court arrived at the same decision as in Oladosun Yisau & 91 ors v. Wema Bank Plc, supra. The defendant went on that the claimants were paid their pension and gratuity in accordance with the agreement between them and the defendants, when they converted from the existing pension scheme to the provident type which enabled the claimants to receive lump sum payment on disengagement. The defendant has pleaded in paragraph 4 on the basis of their calculating the claimants’ entitlement. The claimant has not denied that the basis was wrong. The defendants (sic) on the other hand have not stated the basis of their own calculation. That the law is that he that asserts must proof. In Oladejo Ajuwon v. Falele Akanni & ors [1993] 9 NWLR 182 at 200 the Supreme Court held that it is elementary law that a party who makes an assertion must prove the truth of it, in order to succeed in the action. That by the Wema Bank Plc Staff Retirement and Pension Fund Members Handbook which the claimant frontloaded only some pages, Article 10 – Conditions for Payment of Pension and Gratuity states as follows – (a) Pension and Gratuity at the rates prescribed in section 11 shall become payable to a member if one of the following occurs. (i) On retirement from the bank after service for 10 years or more as a member of the Pension Scheme, but pension earned will not be due for payment until the member attains the age of 55 years. That the note to Article 9 – Pensionable Service stated thus – No period of service less than 10 years shall be taken into account in computing pensionable service. To the defendant, the claimants have not proved that they have all put in 10 years with the defendant and have not proved that they are up to 55 years. For example, the letter of offer of probationary employment for the 2nd claimant, Badejo Michael Tunde, was dated October 12, 1999. His letter of disengagement from service was dated July 20, 2007. The 2nd claimant has only served for about 8 years before his disengagement. The internal memo of confirmation of appointment of M. A. Ajayi (the 10th claimant) dated 20th October, 1996 showed that he was employed on October 2, 1997 and his disengagement letter was dated March 16, 2006. The 10th claimant has put in about 9 years before his disengagement. The Internal Memo dated July 16, 1999 to Miss F. A. Akinwande now Mrs. Adegesan Funmilolayo Adeola (the 12th claimant) showed that she was employed on January 4, 1999. Her letter of disengagement was dated March 16, 2006. The 12th claimant has put in about 6 years before her disengagement. That the claimants have, therefore, not proved that all of them have served up to 10 years with the defendant. They have also not proved their ages. The defendant continued that all their letters of disengagement/retirement showed that they were paid their gratuity. The claimants are only claiming underpayment without proof of how they arrived at their calculation. They were all paid their gratuity because of the conversion from the pension scheme to the provident type scheme otherwise those who have served below 10 years under the Pension Scheme would not have received any payment. The condition for the implementation of the provident scheme were spelt out at pages 3 of 4 of the Recommendation of the Board of Trustees of the Staff Retirement & Pension Scheme to management on the conversion of the existing pension scheme to the provident type. That even though this document is a recommendation, both parties relied on it and the claimants agreed that they were in the defendant’s employment when the conversion was made. That the claimants made some calculations in their pleadings without proving the basis for the calculation. Facts pleaded in respect of which no evidence was led go to no issue (Samson Babatunde Olarewaju v. Afribank Nigeria Plc [2001] Vol. 6 MJSC 68 at 76G). On issue 4, the defendant contended that the claimants are liable to pay back all loans and allowances given to them on retirement or disengagement. That the claimants were given housing allowances but were disengaged before they exhausted the allowances. They are liable to pay back for the period which they were no longer in the service of the defendant. That as at the time of their disengagement, they have not exhausted the allowance. To the defendant, if for instance the claimants were housed in the defendant’s quarters, they will definitely leave the quarters on disengagement. The defendant only deducted 50% of the Housing Upfront Allowance. The defendant then submitted that the claimants are liable to repay the allowance given to them which has not been utilized before their disengagement. Regarding issue 5, the defendant contended that the law is that he that asserts must prove (section 131 of the Evidence Act 2011). That the claimants have not proved their case. As already stated in Samson Babatunde Olarewaju v. Afribank Nigeria Plc (supra) mere pleading a fact without proving it is of no moment. In summary, the defendant contended that – a. On the issue of National Housing Fund Contribution and share certificates, that this action is premature. b. There was no basis for the claimants’ calculation of their entitlements. c. That the claimants’ entitlements have been fully paid. d. That one of the basis for the claimants’ claim for under-payment of entitlement was their calculation of ex-gratia benefits to themselves which is not a right. e. That the claimants’ gratuities were stated in the claimants’ letter of disengagement which was calculated in accordance with the Provident Type Lump Sum Payment. f. That the claimants have not proved that they have all served the defendant for up to 10 years before their disengagement neither have they proved their ages. g. The claimants have not proved their case as he that asserts must prove. In conclusion, the defendant urged the Court to dismiss the claimants’ claims as they lack merit. That the fact that the defendant is a bank cannot be a reason for making an unsubstantiated claim against it. That the claimants have been paid their entitlements. This action is, therefore, frivolous, vexatious and an abuse of the process of this Court. Following in the example of the defendant, the claimants first remarked on the exhibits they frontloaded in the following manner – 1. Staff Gratuities as calculated by the Bank as at 30-06-2011. That It is the claim of the claimants that they were not fully paid; they were underpaid their gratuities while their pensions were not paid at all as the calculation of the defendant is not correct even if the provident type is used; the defendant witness even admitted that he did not know which calculation was used whether provident type or not. 2. An internal memo on staff share acquisition dated December 16, 2004. This document showed that the claimants were given loan and from the evidence under cross-examination and pleadings of the claimants, it is established that the total loan of each claimant had been fully paid. Under cross-examination of the defendant’s witness, he said he did not know how much loan was given, how much was paid and how much loan is to be paid. From the evidence of the claimants, the claimants are not indebted to the defendant. 3. Newspaper advertisement in the punch newspaper of Wednesday February 14, 2007 page 65. This is the publication that was published by the defendant that those who are in employment of the defendant for 10 years and above be paid their pension. The publication only specified the ex-National Bank Staff who joined the defendant company while the real defendant’s staff (the claimants) were not inclusive. This exhibit is relevant to the claimants’ case. The ex¬-National Bank staff that joined the defendant company were paid their pensions while the defendant refused to pay the claimants. 4. A copy of report of the establishment committee meeting of the defendant’s bank held on 12/10/2005. This exhibit was acted upon and later formed precedent in the defendant company. However, the defendant deliberately refused to use it for the claimants while those before them and after them were. 5. A copy of the minutes of the 177th meeting of the Board of Directors of the defendant’s Bank held on 19/10/2005....payment of ex-gratia has been recognized over the years in the bank as constituting part of the employee’s severance entitlement and has been implemented over the years to other employees; it therefore constitutes part of the terms and conditions of the claimants’ contracts of employment with the defendant. Those that were disengaged a year before the claimants and those disengaged after the claimants left the defendant company were paid 2 years ex-gratia. In their letter of disengagement ex-gratia was stated, urging the Court to so hold and grant the 3rd issue. The existing severance paid, letter dated 28th October addressed to Mr. Arowosegbe Abiodun and letter dated 28th October addressed to Mr. Olaewe Oluseun employees in the defendant employment were determined is that proposed to the Board of Directors by the establishment committee at page F of the establishment committee report and approved by the Board of Directors at its 177th meeting of the Board of Directors at page 8 paragraph 13(iii) on the Minutes of the 177th meeting. This was implemented in the payment of the severance packages to them. Those letters the retirees were paid 2 years basic salary and allowances as ex-gratia payment as approved by the Board of Directors. In addition, they were forgiven all outstanding upfront allowance and were paid medical expenses subsidy. The claimants submitted that in the absence of any new severance package approved by the defendant between the period of October 28, 2005 and March 16, 2006 when the claimants were disengaged, the same new improved severance packages is applicable to the claimants, urging the Court to so hold. That in Marshall v. English Electric Co. Ltd [1945] All ER 653 it was held that custom or practice may be implied into a contract of employment. 6. Letter of offer of appointment of some of the claimants, change of name of one claimant, letter of disengagement; or retirement letters of promotion of some of the claimants and pay slip of one claimant. The defendant admitted that the claimants are its ex-workers, but from the said exhibits of disengaged or retirement, it clearly shows that the claimants were not fully paid, the pension, gratuities, Housing allowance were deducted from their entitlement while they are entitle to full package of the housing allowance, for it is the defendant that terminated their service the ex-gratia. Payments were never paid. Also the defendant admitted that moneys were deducted on monthly basis and the moneys were not remitted to National Housing Fund and the defendant is not willing to pay. 7. A letter from Falana’s Chambers dated the 14th day of September 2006 and the response to Falana & Falana’s letter by the defendant dated the 4th and 25th day of October 2006. The letter marked without prejudiced is not to be relied upon by the Court for the letter was written in the cause of settlement or negotiation and we also pray the court to so hold as it was decided and held in Santos v. Epe Native Authority LR [XVII] 67 that it is not disputed that the letters were written during the dispute and attempted negotiation between the parties and the law appears to be quite clear on this point and the rule is that so long as the case is one where there is a dispute or negotiation and terms are offered for the settlement thereof a letter written without prejudiced cannot be admitted in evidence without the consent of both parties. See Volume 13 Halsbury Laws of England, 2nd Edition, paragraph 774, commencing at page 703. In Unilever Plc v. The Procter & Gamble Co. [1999] 2 All ER 691 it was held that where a party wished to rely on without prejudiced correspondence or statements, it had to show that there was a public interest favouring such use, which outweighed the public interest in fostering the non-litigious compromise of disputes. Moreover, where that party relied on some alleged wrong doing by the other party, it had to show that the wrongdoing was substantial. Thus a party would not lose the without prejudiced privilege if, in the course of the discussions. This, the defendant has failed to show the Court, rather the attitude of the defendant is unfair labour practice, once you have admitted that the money was deducted from the salary and that they are entitled to their share certificates, why not pay the claimants what they are entitled to? Why is the defendant trying to hide on technicality, for the era of technicality has gone. In United World Limited Inc. v. Mobile Telecommunications Services Limited [1998] 10 NWLR 106, the word without prejudiced was explained. What is the meaning of the words “without prejudiced”? I think they mean without prejudiced to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established and the letter, although written without prejudiced operates to alter the old state of things and to establish a new one”. It is also provided that where the privilege exists it covers not only the particular letter itself but also all subsequent parts of the same correspondence on both sides notwithstanding that they are not expressed to be without prejudiced unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. See Peacock v. Harper (1877) 26 WR 109. Also decided in Compagnie Noga D’Importation et D’Exportation SA v. Australia and New Zealand Banking Group Limited [1999] EWCA CIV J1210-10 PTA 99/7767/A3 the phrase without prejudiced is a convenient formula enabling a party to make an offer to the other side without being liable to be held to that offer if not accepted and without the fact of its having been made becoming evidence against him if the negotiation fails. The word ‘without prejudiced’ protect subsequent and even previous letters in the same correspondence and all admission made during a bona fide attempt to settle a dispute would be excluded. The phrase means without prejudiced to the position of the writer or maker of the document if the terms proposed therein are not accepted. See Noma Enterprises v. Owners of Colobia Glazy [1989] Vol. CLRQ 163 at 171. The case of Fawehinmi v. NBA (No.2) [1989] 2 NWLR (Pt. 105) at 622 cited by the defendant is not in support of the defendant case. 8. Wema Bank Plc Staff Retirement and Pension Fund Members Handbook and the Collective Agreement between the claimants and the defendant. This Handbook forms part of the contract of the parties – section 2, page 4 of the Handbook says – MEMBERSHIP RECORDS The Trustees shall ensure that all eligible members are registered and they shall update such records regularly. It is the sole responsibility of the Trustees of the defendant to register the claimants and to keep the record so that when the record is needed, it will be available. The defendant failed in this aspect. SECTION 3 Contributions How Much? a) You will not contribute towards the cost of your retirement benefit b) WEM BANK PLC has guaranteed to pay the benefit as sat out in this booklet through the Trustees annually an amount an account not lower than an equivalent for 19% of your basic annual salary. When? c) WEMA BANK PLC will contribute from the day you joined the scheme until your normal retirement date by regular annual payment into the fund on your behalf'. It is responsibility of the defendant to contribute to the retirement benefit by paying 19% of the employee basic annual salary as per section 3a & b. The claimants contributed, the defendant did not contribute and still the contributions by the claimants were not paid by the defendant to the claimants. The defendant has acted against the Handbook. Their pension and gratuity were not calculated and paid in accordance with the Provident Type Scheme. SECTION 10 Conditions for payment of pension a) Pension and Gratuity at the rates prescribed in section it shall become payable to a member if one of the following events occur – i. On retirement from the bank after serving for 10 years or more as a member of the Pension Scheme, but pension earned will not be due for payment until the member attain the age of 55years. ii. On medical evidence being given by a member to the satisfaction of the Bank that a member is not suitable for further service on health grounds. iii. If a member is totally or permanently disable while in the service of the bank. iv. On abolition of office. v. If a member is required by the Bank to withdraw or retire from the service of the Bank in the interest of others. vi. On compulsory retirement for the purpose of facilitating improvements in the organization of the department of the Bank to which the Member belongs so that greater efficiency or economy may be affected. Provided that in respect of paragraph (ii) and (iv) above. If the member has spent 5 years but less that 10 years as a member of the Pension Scheme before the retires or withdraws, he will be entitled to only a gratuity as shown in the table or payment under section ii. Provided also that if the member qualifies for pension under paragraphs (ii) to (iv) above, pension shall be payable with effect from the date to retirement irrespective of age, but in accordance with the table of benefits. Provided also that where an employee retires under section 10(ii) to (iv) and qualifies for pension, he shall be entitled to pension immediately notwithstanding his not attaining the age of 55 but based on the table of benefits. b. Pension Benefit &Gratuity a. If a member retires from the services of the Bank in one of the circumstances described in section 10 and provided that he has served the qualifying period for pensionable service, he shall be entitled to a lump sum gratuity period for pension based on terminal or final Basic Salary which shall be payable at not less than monthly instalments for the remainder of his lifetime. b. The lump sum gratuity and annual amount of pension referred to in paragraph (a) of this section shall as tabulated.” From the above, especially section 10(v) (vi) the claimants are entitled to collect their pension and gratuity before attaining the age of 55. 9. Report and recommendation of the Board of Trustees of the Staff Retirement and Pension Scheme dated 15th of June 2001. The defendant failed to follow this report in calculating the total entitlement of the claimants. The claimants went on that additional exhibits were allowed by order of the Court by motion on notice dated 30thApril 2012. The same motion was granted on 13th July 2012. i) Letter dated 28th October addressed to Mr. Arowosegbe Abiodun. ii) Letter dated 28th October addressed to Mr. Olaewe Oluseun. iii) Letter of Probationary Employment dated 27th October 1995 addressed to Mr. Olufunso O. Odumosu – 14th claimant. iv) Letter of Confirmation of Appointment dated 8th December 1993. v) Letter of Promotion dated 29th November 2005 addressed to Mr. Olufunso O. Odumosu – 14th claimant. vi) Letter of promotion dated 5th May 1999 addressed to Mr. Odumosu – 14th claimant. vii) Letter of Disengagement from service dated 16th March 2006 addressed Mr. Olufunso O. Odumosu – 14th claimant. viii) Pay Advice slip dated November 2002 addressed to Mr. Olufunso O. Odumosu – 14th claimant. ix) List of disengagement staff from Wema Bank Plc. The claimants is relying on all these documents,...this shows the total list of disengaged staff of the defendant, as for the claimants the defendant admitted that they are its ex¬-staff, what is admitted need no proof. To the claimants, from all the letters of disengagement, letter of retirement, it is evident that the claimants were short-paid or underpaid. Letter dated 28th October 2005 addressed to Mr. Olaewe Oluseun and Arowosegbe Abiodun of the same year. It is so stated how the claimants ought to be paid their entitlement. Forgiveness of all outstanding upfront allowances were given and ex-gratia payment of 2 years were given. This is a precedent in the defendant company. The defendant intentionally hid the details in the letter of disengagement so as to cover their mischief. From its calculations, one can see the defendant did not even follow the provident type. The payment advice slip shows all the money deducted by the defendant and salary structure. The claimants then framed six issues for the determination of the Court, namely – (1) Whether from the evidence of the parties before the Court, the claimants are entitled to judgment of their claims and whether in view of the defendant’s admission in paragraphs 5 – 12 of the statement of defence and the admission in the cross-examination, the claimants are entitled to all the reliefs. (2) Whether having regard to the Wema Bank Plc staff retirement and pension fund members Handbook, the claimants who have spent 10 years and above in the service of the defendant are entitled to pension. (3) Whether the claimants are entitled to ex-gratia payment. (4) Whether, having regard to the existing severance package for employees in the defendant employment, the claimants’ gratuity and pension were underpaid. (5) Whether the attitude of the defendant to the claimants in underpaying them of their entitlement and non-remittance of money deducted to National Housing Fund constitute unfair labour practice. (6) Whether the Court can award 21% interest rate on the underpaid entitlement. Regarding issue (1), the claimants contended that they gave evidence in support of their claim and evidence in support of their pleadings adduced with all the exhibits tendered. That the evidence of the defendant was against its pleadings when the defendant’s witness, Mr. Babalola Ahmed, said “I do not know how the calculation were made, am not sure that the total entitlement of the claimants were paid, I don’t know the percentage used in calculation of the total entitlement, I don’t know how much loan was given to the claimants, I don’t know the remaining loan to be paid by the claimants, I am not aware whether share transfer forms were sent…” from the evidence of the defendant witness, the witness did not know everything presented or asked by the claimants’ counsel and agreed with the claimants’ claims and contradicted the defendant’s pleadings. To the claimants, it is trite law that parties are bound by their pleadings and that any evidence led by a party at a trial which is at variance with its pleadings must be ignored by the trial Court. That the trial court must not allow a party at the trial to make out a case other than that which is contained in its pleadings, citing Aniemeka Emegokwue v. James Okadigbo [1973] 4 SC 113, National Investment & Properties Co. Ltd v. Thompson Organisation Ltd & ors [1969] NMLR 99 and Otuaha Akpapona & ors v. Nzekall & ors [1983] 4 S C1; [1983] 2 SCNLR 1. That in Savannah Ventures Limited v. West African Breweries Ltd North Breweries Plc (CA) CA/K/8/95 [1997] 10 NWLR (Pt. 524) 254 Honourable Justice Umaru Abdullahi, JCA said it is trite that no matter the quantity of evidence given at a trial, if the evidence is not based on the pleadings then it goes to no issue and of no value to the party who produced it, and the Court cannot use it to arrive at any decision in favour of the party adducing such evidence. That authorities are legion on this point, referring to Aniemeka Emegokwue v. Okadigbo [1973] 4 SC 113 at 117 That the reason for this rigid rule of pleading and of evidence has been clearly stated in George and ors v. Dominion Flour Mills Ltd [1963] 1 SCNLR 117; [1963] 1 All NLR 71 at 77 as follows – The fairness of a trial can be tested by a maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown, and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues, but the cardinal point is the avoidance of surprise. Also cited by the claimants are Otuaha Akpapuna & ors v. Nzeka II & ors [1983] 2 SCNLR 1; [1983] 2 SC 1, George and 2 ors v. Dominion Flour Mills Ltd [1963] 1 All NLR 71; [1963] 2 SCNLR 1, NJPC v. Thompson [1969] NMLR 99 and Emegokwue v. Okadigbo [1973] 4 SC 113 and Shell BP Ltd v. Abedi & ors [1974] 1 All NLR 1. That the common ratio decided in the above cases is that in an action before the High Court, parties are to be bound by their pleadings. Their case stands or falls in accordance with the averments made in the pleadings and the evidence produced in proof of those averments. The claimants continued that an averment denied evasively or insufficiently such as, “the defendant is not in a position to admit or deny paragraph of the claim and at the trial put the plaintiff to proof” has been held to be an admission and not a denial of the averment, citing Lewis and Peat v. Akhimien [1976)] 7 SC 157 at 163 – 164 and Atolagbe v. Shorun [1985] 1 NWLR (Pt. 2) 360. That a material fact admitted or deemed to have been admitted by the defendant needs no further proof at the hearing and judgment may be granted based on the admission, referring to Olubode v. Oyesina [1977] 5 SC 79 at 85 and Akintola v. Solano [1986] 2 NWLR (Pt. 24) 598 at 623. That evidence must be adduced to prove matter not admitted on pleadings. Any evidence adduced on matter not pleaded or which is at variance with pleadings goes to no issue and if admitted at the hearing must be expunged or disregarded, citing Gboda v. Adulugba [1971] 1 All NLR at 72 – 73 and Alhaji M. Shehu Buhari v. Alhaji Suleiman Takuma [1994] 2 NWLR (Pt. 325) 183 at 192. The claimants went on that pleadings cannot be equated with evidence where a party adduces no evidence to establish an averment it must be taken that he has abandoned the averment. The Court cannot rely on an abandoned pleading in order to arrive at a decision, citing Francis Osawe Eseigbe v. Friday Agholor & ors [1993] 9 NWLR (Pt. 316) 128 at 151 – 152. To the claimants, the position of the law is that evidence must support pleadings; a party is expected to give evidence that is within the periphery of his pleadings and not beyond it. When such evidence are adduced the law says they should be ignored as they are regarded and treated as non-issues, citing Temile v. Awani [2001] 12 NWLR (Pt. 728) 726, Makwe v. Nwukor [2001] 14 NWLR (Pt. 733) 356, Orizu v. Anyaegbunam [1978] 5 SC 21, Lamurde Local Government v. Karka [2010] 10 NWLR (Pt. 1203) 574 and Nwokorobia v. Nwogu [2009] 10 NWLR (Pt. 1150) 553. That from the established authorities it is clear that party has no obligation to adduce evidence on a matter which has been admitted on pleadings and with the evidence on cross-examination of the defendant witness. The combined effect and purport of paragraphs 5 – 12 of the statement of defence is an express and unambiguous admission of the fact that the defendant made deductions from the claimants’ salary in respect of contribution to the National Housing Fund and towards repayment of the loan share acquisition. The defendant has neither provided to the claimants the appropriate and exact amount of their contribution to the National Housing Fund, how the defendant calculated the claimants’ entitlement nor provided them with share certificates in respect of the paid up share. To the claimants, by this admission, the claimants’ reliefs a, b, d and e need no further proof, as it was decided in Olagunyi v. Oyeniran [1999] 6 NWLR (Pt. 453) 127, Akpan v. Umoh [1999] 11 NWLR (Pt. 627) 349 and Agbanelo v. Union Bank of Nigeria Plc [2000] 4 SC (Pt. 1) 233; and that the entire claims are entitled to judgment as per the said admission and also by the letter dated October 25, 2009, referring to Pas Nig. Ltd v. NNS Co. Ltd [1990] 6 NWLR (Pt.159) 764 at 772. On issue (2) i.e. whether having regard to the Wema Bank Plc staff retirement and pension fund members Handbook, the claimants who have spent 10 years and above in the service of the defendant are entitled to pension, the claimants submitted that by virtue of the provision of Article 10 of the Wema Bank Plc Staff Retirement and Pension Fund Members Handbook, those of them who have put in 10 years and above in the service of the defendant are entitled to pension and gratuities upon retirement. That the defendant is bound by the agreement. What is evident and not disputable is that 1st, 3rd, 4th, 5th, 6th, 7th, 9th, 11th, 13th, 14th, 15th and 16th claimants have put in 10 years or more in the service of the defendant before they were prematurely disengaged from service, and they are therefore entitled to pension and gratuity. But that rather than the defendant retiring the claimants and placing them on monthly pension, the defendant disengaged them without pension. Although the defendant placed reliance on a review agreement dated 15/06/2001, that agreement never reviewed the 10 years pension clause in this article. Defendant, by its publication on the February 14, 2007 in the Punch Newspaper, required eligible pensioners that have worked for 10 years or more in the service of the defendant to come forward for verification, proves that they are indeed entitled to monthly pension from the defendant. That the 1st, 3rd, 4th, 5th, 6th, 7th, 9th, 11th, 13th, 14th, 15thand 16th claimants that are entitled to monthly pension are not paid, from the 1st claimant letter of retirement dated 6th March 2006 it stated that pension of N90,000 per annum will be paid, this has not been paid up to date and while others too that are not stated but are suppose to be paid are not paid, urging the Court to resolve this issue in favour of the claimants and ordered the immediate payment of the claimants’ monthly pension forthwith with its arrears. That the defendant argued that until the age of 55 years, the1st, 3rd, 4th, 5th, 6th, 7th, 9th, 11th, 13th, 14th, 15thand 16th claimants are not entitled pension. That this shows that the defendant has not paid the pension for them and that in as much as they have put in up to 10 years and above they are entitled to be paid according to the workers Handbook. Regarding issue (3) i.e. whether the claimants are entitled to ex-gratia payment the claimants contended that they are entitled to ex-gratia payment as part of their severance packages as confirmed by the Establishment Committee when it reviewed the existing severance packages at page E of the Committee report signed by the then GMD/CEO of the defendant, Mr. Adeleke. The committee report under the heading “Existing severance package incentive and entitlement” listed the payment of staff gratuities as calculated by Wema Insurance brokers as: 3 months’ salary in lieu of notice, 15 months ex-gratia, all prepaid allowance to have their residual balances written off as at the time of exit, and the entire loan outstanding is deducted from the retirement benefits as the total sum constituting the employees severance packages. That payment of ex-gratia has been recognized over the years by the defendant as constituting part of the employees’ severance entitlement and has been implemented over the years to other employees; it therefore constitutes part of the terms and conditions of the claimants’ contract of employment with the defendant. Those that were disengaged a year before the claimants and those disengaged after the claimants left the defendant company were paid. In Marshall v. English Electric Co. Ltd [1945] All ER 653 it was held that custom or practice may be implied into a contract of employment. However, the existence of custom or practice must be known to the employee as it was decided in Faxall v. The International Land Credit Company (1867) 16 LT 637 and Oke v. Great Nigeria Insurance Co. Ltd CCHCJ/12/72 page 62, as discussed in Labour Law in Nigeria by Professor E. E. Uvieghara at pages 25 to 28. The claimant continued that in their letter of disengagement ex-gratia was stated; therefore, this Court should hold and grant the 3rd issue. Letter dated 28th October addressed to Mr. Arowosegbe Abiodun and letter dated 28th October addressed to Mr. Olaewe Oluseun employees in the defendant employment were determined is that proposed to the Board of Directors by the Establishment Committee at page F of the Establishment Committee Report and approved by the Board of Directors at its 177th meeting of the Board of Directors at page 8 paragraph 13(iii) on the Minutes of the 177th meeting, this was implemented in the payment of the severance packages to them. Those letters the retirees were paid 2 years basic salary and allowances as ex-gratia payment as approved by the Board of Directors. In addition, they were forgiven all outstanding upfront allowance and were paid medical expenses subsidy. The claimants then submitted that in the absence of any new severance package approved by the defendant between the period of October 28, 2005 and March 16, 2006 when the claimants were disengaged, the same new improved severance packages is applicable to the claimants, urging this Court to so hold. On issue (4) i.e. whether, having regard to the existing severance package for employees in the defendant employment, the claimants’ gratuity and pension were underpaid, the claimants contended that from the calculation of the claimants which were not denied under cross-examination by the defendant’s witness the claimants were short-paid and underpaid and the defendant have failed to show this Court how it arrived at the calculation. That this is a deliberate effort to underpay the claimants. The 1st, 3rd, 4th, 5th, 6th, 7th, 9th, 11th, 13th, 14th, 15th and 16th claimants that are entitled to monthly pension are not paid, from the 1st claimant’s letter of retirement dated 8th March 2006 it stated that pension of N90,000 per annum will be paid, this has not been paid up to date and while others too that are not stated but are suppose to be paid are not paid. There is no evidence before this Court to show that the defendant paid gratuity and those entitled to pension were paid. That the witness said he did not know how the calculation was made. That this is so clear that even the Provident Type Lump Sum payment which the defendant said it based its calculation on cannot be correct and is not correct, for the defendant did not know what the basis of the calculation was. Regarding issue (5) i.e. whether the attitude of the defendant to the claimants in underpaying them of their entitlement and non-remittance of money deducted to National Housing Fund constitute unfair labour practice, it is the contention of the claimants that there is no doubt that the attitude of the defendant in not remitting all the money deducted from the salaries of the claimant from the time they were employed till time of disengagement constitute unfair labour practice. In an unreported case in Suit No. NIC/377/2008 Akinfemiwa Akinyinka & anor v. More Time C02 Gas Plant Limited & anor delivered on 2011-04-14, this Court held as follows – The claimants have made a claim for N500,000 for general damages for mental torture, agony, loss of self-esteem, deteriorating health, deprivation and inhuman treatment. In the claimants’ letters of employment it is stated that “we work from Monday to Saturday and on Public holidays.” We find that the denial of annual leave entitlement to the claimants all through their years of service to the 1st defendant coupled with the 1st defendant’s work days is inhuman and so a deprivation of the right to annual leave under section 18 of the Labour Act. This is, therefore, an unfair labour practice which this court cannot close its eyes to. Also referred to the Court are Alhaji Gari v. Seirafina Nig. Ltd [2008] 2 NWLR (Pt. 1070) 1 at 19 and CECTCS & ors v. Ikot [2000] 23 WRN 142 at 152. That the defendant’s refusal to pay the claimants all their entitlements, after the claimants have served the defendant for over 10 years, is unacceptable and amounts to unfair labour practice. The claimants are entitled to their severance benefits and that the Court must intervene to protect their right, referring to Obeya Memorial Hospital v. AG, Federation [1987] 3 NWLR (Pt. 60) 325. On issue 6 i.e. whether the Court can award 21% interest rate on the underpaid entitlement, the claimants simply submitted that they are entitled to the 21% interest on the unpaid entitlement for the defendant has invested and still investing on the claimant’s money since 2006. The claimant devoted a part of its written address to what they termed “Argument on Defendant Final Written Address”. Here, on issue 1 of the defendant’s final written address, the claimants answered that it is evident that the defendant never lodged the money deducted from the salary of the claimants to National Housing Fund, and according to s. 11(a) at page 6 of the Staff Retirement & Pension Fund Handbook, the staff will be entitled to collect his money lump sum. There is no evidence to prove the averment of the defendant that the moneys were remitted; for the claimants in their evidence stated that they went but the National Housing Fund official told them that they do not have account with them. The defendant failed to show this Court any evidence as to the remittance. Furthermore, that it is legally wrong and is against the fundamental rights of the claimants for the defendant to deduct money from the claimant and not have record of such to the extent that a staff will not have reference number. If the defendant has good conscience it ought to have paid all the claimants who have worked for the defendant. That the claimants do not owe the defendant as per the claimants’ pleadings and evidence in support. On the defendant’s issues 2 and 3, the claimant answered that Ahmed Babalola failed to convince the Court that the claimants were not underpaid, rather he supported the claimants’ case by saying that he did not know how calculations were made and that he did not know anything in relation to what he signed as witness written statement on oath by saying “I don't know” in all his evidence in cross-examination. That the defendant’s counsel mentioned the unreported case between Oladosu Yisau Lasun & 91 ors v. Wema Bank Plc in Suit No. NIC/18/2008 and stated that the facts of the case is the same with the claimants’ case. The claimants disagreed and said that the other never went to trial, no written statement was filed, the calculations of their entitlement were not presented before the Court and therefore it has to be distinguished from the claimants’ case. That Busari Giwa Ademole & 34 ors v. Wema Bank Plc Suit No. NIC/19/2008 is also not the same with the claimants’ case. In answer to the defendant’s issues 4 and 5, on the issue of housing allowance, that it is the defendant that disengaged the claimants from the company, therefore the defendant should be ready to forgo the housing allowance, if it is the claimants that resigned from the employment of the defendant, then the claimants should be ready to refund. That in the case of Oduye v. Nigeria Airways Ltd [1987] 1 NSCC 251; 2 NWLR (Pt. 55) 126 Oduye lived in quarters provided by the respondent as part of her conditions of service and continued to hold over the premises after the termination of her employment, and the employer sued for possession. That it was held that after the termination of employment she is protected by the Rent Control and Recovery of Residential Premises; before she can be evicted all the necessary notices have to be given. That the defendant avers that they have paid the claimants according to agreement while the claimants should show to the Court by evidence on calculation how they arrived at their calculation. That the proof has been shifted to the defendant to show their calculation which they failed to do. This shows that the defendant has not proved its case and therefore the claimants are entitled to their claims. The claimants went on that all the pages of the Wema Bank Staff Handbook they frontloaded are complete. That the claimants are not supposed to spend 55 years according to sections 10 and 11. The defendant did not pay the claimants’ gratuity, pension, 3 months in lieu of notice, deduction made for housing allowance which is not suppose to be. The pleadings of the defendant did not support its evidence while the claimants gave evidence to all the facts pleaded. The claimants then denied issue 4 of the defendant, for the claimants are not owing. On issue 5 of the defendant; that the defendant has failed to prove while the claimants have proved their case in this Court. The claimant proceeded to what they termed “Evasive Ways of Pleadings”. To the claimants, the defendant’s pleadings is full of evasive pleading which in law means admission of the claimants’ pleadings and which does not need proof. That this is a very unsatisfactory way of denial in pleadings. Denials must be stated specifically as held in Beecham Group Limited v. Essdee Food Products Nigeria Limited unreported Suit No. FHC/L/86/80 of the Federal High Court of Nigeria, Lagos Judicial Division of 14th September 1981, Messrs Lewis & Peat (NRI) Ltd v. AE Akhimien [1976] 7 SC 157 159, 163, 164 and 169, and ICI (Directory Publishers) Ltd v. Ekko Delta (Nig.) Ltd & ors unreported Suit No. FRC/L/62176. That the defendant is evasive in its pleadings and accordingly by the applicable rules of procedure, the facts evaded were deemed established, referring to Duruaku Eke v. Udeozor Okwaranyia [2001] 12 NWLR (Pt. 712) 181; and that paragraphs 13, 14, 15 and 16 of the statement of defence are not denials but admission. In conclusion, the claimants urged the Court to grant their claims because of the availability of the evidence before the Court and to strike out the defence of the defendant with substantial cost. The defendant reacted to the claimants’ written address by filing a reply on points of law. To the defendant, the claimants agreed before this Court during cross-examination of their witnesses that they were in the employment of the defendant when they changed from the pension Scheme to the Provident Type. That any admission made by the claimants needs no further proof. The claimants can, therefore, not be referring to Wema Bank Plc Staff Retirement and Pension Fund Members Handbook which is the Pension Scheme when they were paid based on the Provident Type. The Provident Type was the basis for the calculation of Exhibit A gratuity at 30-6-2011. That the Law is that he who asserts must prove. While the claimants are stating that they were under-paid in their pension and gratuity, the claimants have not proved the basis of their calculation under the Provident Type. The defendant stated in paragraph 4 of their statement of defence the basis of their calculation which is Basic Salary plus Housing plus Transport and plus Luncheon allowances (BS + H + T + L) and employee and employer’s contributions. The claimants have not disputed, denied or contradicted the basis of this calculation. The defendant went on that even though it paid the claimants their pension, gratuity and all their entitlements the claimants never proved their claim. The law is that he who asserts must prove. Anything pleaded but not proved goes to no issue. Pleadings are no evidence, referring to Okiri v. Ifeagha & anor [2001] FWLR (Pt. 73) 140 at 151. That averments on which no evidence is adduced would be deemed abandoned (Ifeta v. SPDC Nig. Ltd [2006] All FWLR (Pt. 34) 305 at 316 – 317 SC). Unless admitted by the adversary, failure to prove or establish averments in pleadings would lead to discountenance of averment as unsubstantial (Mrs. Ayorinde & anor v. Chief Fayoyin [2001] FWLR (Pt. 75) 483 502 CA). That anybody can make a calculation of what he thinks he is entitled to but for the Court to believe it, the basis of the calculation must be proved. It is not the duty of the Court to make out the case of a party. The Court decides issues based on the evidence before it. The defendant denied that it’s pleading was evasive. That the defendant’s denials were not general. The defendant gave reasons for every denial and put the claimants to the strictest proof thereof. To the defendant, the 2nd, 6th, 14th and 16th claimants were also claiming ex-gratia payment when the defendant was magnanimous in paying them the same. The severance package Exhibit F as stated in their letters of disengagement is made up of ex-gratia, 3 months basic salary in lieu of notice and special allowance. That in the letter of disengagement, of the 2nd, 6th, 14th and 16th claimants, it stated that the balance on their upfront payment in respect of furniture, education and wardrobe allowances were written off. Yet in the claimants’ pleading they calculated and were demanding for other allowances such as utility, furniture, wardrobe and education. Under the same heading of other allowances, they were asking for tea, domestic, special, passage, fuel and entertainment. There was no evidence that they were entitled to those allowances. It was those bogus and unimaginable demands that made the claimants believe that they were under-paid. Furthermore, that the letters of disengagement of the 2nd, 6th, 14th and 16th claimants which were also communicated to other claimants and pleaded in paragraphs 10 and 11 of the defendant’s statement of defence stated as follows: “please be informed that the share certificate of total deduction for the 2004 Wema offer will be made available to you as soon as the on-going transfer process is concluded at Central Securities Clearing System (CSCS). You are therefore requested to complete the attached share transfer form to enable us effect the transfer to you”. Instead of the claimants to follow the procedure to enable the defendant transfer their shares of total deductions to them, they resorted to litigation hence the defendant is saying that this action is premature. To receive their share certificates on the total deductions, the claimants have to complete and sign the share transfer form. The defendant has not refused to give them their shares. The defendant continued that the Court cannot make an award to the claimants if the relief is not claimed and proved. That it is not the custom of the defendant to pay ex-gratia known to anybody. For it to be a custom, it has to be of some “reasonable antiquity and standing, sufficiently notorious and well understood that the people will make their contract on the supposition that it exist”. This was the holding by Byles J in the case of Foxall v. The International Land Credit Company quoted by the claimants. The defendant has no custom of payment of ex-gratia. Whenever they do so, it is for favour and not of general application. The defendant denied engaging in any unfair labour practice as stated by the claimants. That the case of Akinfemiwa Akinyinja & anor v. More Time C02 Gas Plant Limited & anor Suit No. NIC/377/2008 quoted by the claimants is not the same with the present case. It is not the claimant (sic) that will pay for the National Housing Fund contribution same having been remitted to the Fund and number issued to the claimants. Those without number have refused to make application for their refund and no evidence that any application was made to the defendant. The claimants never wrote or tendered any letter of demand. The defendant never denied that the deductions were made. If the claimants made any formal demand for their contribution from the Housing Fund, there would have been a reply. No letter to National Housing Fund or response from them was tendered. Merely informing the court that National Housing Fund said there was no money remitted to them was not enough. There has to be proof of this assertion. It is the Federal Mortgage Bank that will make any payment remitted to them and not the defendant. The defendant denied engaging in an unfair labour practice as the claimants’ severance package and gratuity were paid to them as per their letters of disengagement. That Ahmed Babalola, the defendant’s witness, never contradicted his written deposition on oath. He only answered honestly to questions asked under cross-examination which he does not know. That all that transpired in this case can be argued through the documents tendered by the claimants to prove their case, which documents speak for themselves. A case can only be decided based on the documentary and oral evidence before the Court. That the case of Oladosun Yinusa Lasun & 91 ors v. Wema Bank Plc unreported Suit No. NIC/19/2008 was decided based on the documents before the Court. The claimants in this case were among those disengaged by the defendant including the claimants in Oladosun Yinusa Lasun and Busari Giwa Ademola cases. The facts are the same and the documents tendered are the same. To the defendant, the difference is that while the other two cases above were argued on the documents frontloaded by the parties, this present case went into trial. That oral testimony, no matter how beautifully presented, cannot take the place of documentary evidence. Under the best evidence rule, documentary evidence is generally regarded as the best evidence to prove any given fact, citing Adda v. Liman [2011] All FWLR (Pt. 587) 765 at 779 CA. The defendant went on that the case of Oduye v. Nigeria Railways Ltd [1987] 1 NSCC 251 cited by the claimants on the issue of housing allowance is cited out of context. That the case was dealing on statutory notice to be given to a tenant to vacate the premises and not on payment of allowances. That all the authorities cited by the claimants on pleadings not proved is against them. It is the claimants that are asserting and the burden of proof lies on them (sections 131 and 132 of Evidence Act 2011). That most of the documents tendered by the claimants are unreliable. I heard learned counsel and considered all the processes filed in this case. In considering the merit of the case, I must remark on the poor presentation of the submissions of the claimants in terms of sentence construction and tenses. For instance counsel to the claimants in paragraph 1.2 of her written address kept referring to the phrase “without prejudiced” when the proper phrase is “without prejudice”. On the whole, I must say it is a poorly scripted address both in terms of sentence construction and presentation of facts and submissions. Aside from repetitive submissions, unreported cases were cited without their certified copies sent to the Court as enjoined by Order 20 Rule 3 of the NIC Rules 2007. There is also the case of dated cases as well as reference to statutes that have been repealed such as the reference to section 75 of the Evidence Act Cap. 112 LFN 1990 in paragraph 3.9 of the claimants’ written address. It will be necessary to determine the weight or probative value to be placed on Exhibits E, minutes of the 177th meeting of the Board of Directors of the defendant Bank (not signed), Exhibit D4(a), a letter dated 4th October 2006 and Exhibit D4(b), a letter dated 25th October 2006 both letters marked “without prejudice”. By Edilco (Nig.) Ltd v. UBA Plc [2000] FWLR (Pt. 21) 792, an unsigned but certified true copy of a document will not be conferred with any evidential value. See also Akinola Awoniyi v. Hon. Raheem Aleshinloye & 5 ors [1998] 9 NWLR (Pt. 564) 71 and Isalibawa v. Habiba [1991] 2 NWLR (Pt. 174) 461. This means that Exhibit E, which is not signed, has no evidential value for purposes of this judgment; and I so find and hold. Section 196 of the Evidence Act 2011 provides that “a statement in any document marked “without prejudice” made in the course of statements in negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceedings in proof of the matters stated in it”. Are Exhibits D4(a) and D4(b) caught up by section 196 of the Evidence Act 2011? They would be if they were made in the course of negotiation for the settlement of dispute out of court. The claimants say they were; but the defendant thinks otherwise. The claimants had made demands on the defendant. In reply, the defendant issued Exhibit D4(a) wherein it stated that the issues raised by the claimants are receiving attention. And by Exhibit D4(b), the defendant formally reacted to the issues with a 7-point answer given in terms of meeting the demands of the claimants. Can these letters marked “without prejudice” be said to be the outcome of negotiating a settlement of the dispute between the parties out of Court? There is no doubt that there is a dispute as to the entitlements of the claimants in respect of which the claimants made demands. Exhibits D4(a) and D4(b) were actually issued to clarify the issues in dispute. By my reckoning, Exhibits D4(a) and D4(b) were issued in the course of settling the dispute between the claimants and the defendant. In that wise, they are caught up by section 196 of the Evidence Act 2011 and so cannot be given in evidence as proof of the matters stated in them; and I so find and hold. Exhibits D4(a) and D4(b) shall accordingly be discountenanced for purposes of this judgment. The key issue before the Court is whether the claimants have proved their case against the defendant. The defendant argues that they have not. In University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478 the Supreme Court had cautioned that a claim for salary, allowances and the like without any particularisation as to how the sum was earned and arrived at makes such a claim vague. Reliefs a) and d) relate to the refund of contributions made to the National Housing Fund. Relief g) relates to payment of outstanding gratuity, pension and medical allowance; and relief j) appears an omnibus relief for it seeks payment to the claimants according to the statement of facts herein. Relief i) prays for ex-gratia payment of 2 years basic salary and allowances. Now the claimants can only get these reliefs if they show entitlement to them and how they arose as entitlements. For gratuity for instance, the defendant had argued that an employee must have attained at least 10 years before he qualifies for it. The claimants in making out their claims computed their entitlements as part of their reply to the defendant’s statement of defence, and which they attested to in the written statement on oath of CW1. The problem is that there is discrepancy here. Under cross-examination, for instance, CW1 testified that he worked for the defendant for 6 years and 3 months before he was disengaged, yet in the calculation for his entitlement, he claimed for gratuity for 10 years from 1991 – 2000. Aside from this sort of discrepancy, this Court is not told how the sums as per the calculations were earned, the documents supporting then, etc. Reliance on a newspaper publication or recommendations or Exhibit E which was not even signed as the bases for their claims cannot hold here or help the claimants’ case. By NEPA v. Adeyemi [2007] 3 NWLR (Pt. 1021) 31, whether an employee is eligible for pension and gratuity can be decided only by reference to the conditions of service. Exhibit D contains proposals as to exit package for retirement and has detailed proposals as to severance package. To this extent Exhibit D cannot be said to contain entitlements as to gratuity and pension. Exhibit E, which is not signed and which has been discountenanced for purposes of this judgment, contains incentive package for early retirement. It cannot be said to create entitlements in favour of the claimants. Exhibit F is a collection of retirement letters of the claimant wherein their terminal benefits were variously indicated. Although the case of the claimants is that they were underpaid, the visible underpayment relates to the 50% of housing upfront allowance deducted as indebtedness when the claimants were paid their terminal benefits vide Exhibit F. Even here, the evidence as per Exhibit F indicates this to be true of some, not all, of the claimants. For instance, of all the claimants only in respect of the following 4 claimants did Exhibit F indicate what the 50% housing upfront allowance deducted is: for Badejo Michael Tunde, it is N125,886.57; for Ogunbanjo Foluso, it is N350,632.11; for Odumosu Olufunso, it is N221,505.95; and for Abegunde Adebiyi, it is N350,632.11. Figures representing 50% of housing upfront allowance deducted as indebtedness of the claimants was actually pleaded and given but are not supported by Exhibit F in terms of all the claimants. Even when the same figures were also deposed to by CW1, they remain unsupported by documentary evidence except to the extent of the 4 claimants discernible from Exhibit F as I already indicated. The defendant did not actually deny deducting the said 50% of housing upfront allowance, it merely rationalised the deduction on the ground that since the claimants were no longer staff and the housing allowance is usually paid upfront, the defendant is entitled to retrieve same back. The claimants’ argument here is that they did not leave voluntarily, so they cannot be faulted and made to make the refund. I agree with the claimants. An allowance already paid to an employee cannot be taken back on the ground that the employee is no longer a staff. On this ground, I find for the claimants in their argument that the 50% of housing upfront allowance deducted as indebtedness from them be refunded to them by the defendant. Since Exhibit F, however, indicates the said sums only in respect of the 4 claimants I indicated, this order shall accordingly apply only to them; and I so hold. In so holding, relief h), which is for “an order directing the defendant to withdraw the conversion of the claimants’ housing allowance to loan forthwith”, has thereby been granted. CW1 had testified under cross-examination that there was naturally a conversion of the housing allowance paid to them by the Bank to loan, referring to Exhibit F. Except for the 50% housing upfront allowance deducted, it is not discernible how all the other sums/reliefs claimed by the claimants were arrived at in terms of their conditions of service. It is in this regard that the instant case bears close affinity with the sister cases earlier decided, and referred to this Court by the defendant. The said sister cases are: Oladosun Yisau Lasun & 91 ors v. Wema Bank Plc [2011] 26 NLLR (Pt. 74) 218 NIC and Busari Giwa Ademola & 34 ors v. Wema Bank Plc unreported Suit No. NIC/19/2008 the judgment of which was delivered on August 10, 2011. These cases were decided by my learned sisters and brother, F. I. Kola-Olalere (Presiding), O. A. Obaseki-Osaghae and Agbadu-Fishim, JJ. The reliefs and exhibits in both cases are the same with those in the instant action. The defendant accordingly argued that the decisions in Oladosun Yisau Lasun and Busari Giwa Ademola, where in this Court denied the claimants any recovery in terms of their claims on the ground that they did not prove their case, should equally apply to the instant case. The answer of the claimants was that Oladosun Yisau Lasun and Busari Giwa Ademola were decided on record and so is different from the instant case where the claimants and the defendant called witnesses. In answer, the defendant argued that trial on record (where reliance is placed solely on the documentary evidence before the Court) is a trial nonetheless. On this, I agree with the defendant. The documents frontloaded in Oladosun Yisau Lasun and Busari Giwa Ademola and those frontloaded in the instant case are the same; and so I do not see why the decisions in Oladosun Yisau Lasun and Busari Giwa Ademola should not be followed in regards to the claims of the claimants in this instant case that are not proved. Relief a) is for “a declaration that the non-remittance of the claimants’ contribution to the National Housing Fund before their disengagement is wrongful and illegal”, while relief d) is for “an order directing the defendant to refund the claimants’ contributions to the National Housing Fund forthwith”. The defendants denied not remitting deductions for housing to the National Housing Fund (NHF), the refund of which the claimants will need to apply to the NHF itself. CW2 had under cross-examination testified that deductions for NHF were made in his payslips. But no payslip was frontloaded in this suit. To CW1 under cross-examination, he was not aware of any information that they should go back to the defendant company and apply for their NHF refund; neither was he aware of any information that those of them with numbers of deduction should go back to the Federal Mortgage Bank for their refunds and those of them without numbers should go back to the defendant to process their refund. This Court cannot make any order in that regard given that the claimants have not done their own bit in adhering to the procedure needed to make their claims. The claimants’ relief b) is for “a declaration that the refusal of the defendant to issue share certificates to the claimants before their disengagement is wrongful and illegal”, while relief e) is for “an order directing the defendant to issue the claimants with share certificates as allotted in December 2004”. The defendant did not deny these claims, only that the claimants did not follow procedure to enable them get the claims. For instance CW1 testified under cross-examination that they did not write to or visit Wema Bank Registrars for the share certificates relating to the shares they bought in 2005. Once the claimants have not done their own bit, I do not see how the claims they make will be granted. I accordingly hold that reliefs b) and e) cannot be granted. In relief c) the claimants prayed for “a declaration that the disengagement of the claimants who served the defendant for over 10 years is wrongful and illegal”; and in relief f) prayed for “an order directing the defendant to substitute letters of disengagement with letters of retirement for the claimants who had served for 10 years and above”. Omidiora v. Federal Civil Service Commission [2007] 14 NWLR (Pt. 1053) 17 defines ‘disengagement’ to connote being laid off, withdrawal, retrenchment or other like exercise as opposed to dismissal. The claimants did not show the Court in terms of their conditions of service how their disengagement from service is wrongful and illegal. Secondly, the claimants did not show to the Court the difference between disengagement and retirement, and how that distinction affected their rights as employees to warrant the claims they make. In consequence, reliefs c) and f) cannot be granted. Relief g) is for “an order directing the defendant to pay the outstanding gratuity, pension and medical allowance of the claimants forthwith”. The defendant answered here that the claimants have been paid all their terminal benefits. The argument of the claimants is that they were underpaid. Although the claimants put figures as to the said underpayment in their pleadings and sworn depositions, save for the 50% of housing upfront allowance deducted as indebtedness of the claimants, it was not shown to the Court how from the documentary evidence before the Court the claimants are entitled to “the outstanding gratuity, pension and medical allowance” they claim. The Court cannot accordingly grant relief g). Relief i) prays for “an order directing the defendant to make ex-gratia payment of 2 years basic salary and allowances to the claimants forthwith”. By PAN v. Oje [1997] 11 NWLR (Pt. 530) 625 CA, ex-gratia is a term applied to anything accorded as a favour, as distinguished from that which may be demanded ex-debito, as a matter of right. It connotes something given out of grace, favour, indulgence or gratuitous. See also Lateef Alao Adesigbin and anor v. Nigeria Breweries Plc unreported Suit No. NIC/8/2008 the judgement of which was delivered on July 15, 2009. The claimants have not shown to this Court any entitlement to the payment of ex-gratia sums in terms of their conditions of service beyond saying that others before them were paid ex-gratia sums upon disengagement from service. The claimants have not made a case for unfair labour practice where comparison with others will be appropriate. Since that is not their case, they must claim based on their own right and entitlement – they cannot found their case on the rights or entitlements of others. Relief j), which is for “an order directing the defendant to pay the claimants according to the statement of facts herein”, is neither here nor there. It appears general, nebulous but obvious enough if the claimants establish their claims in the first place. Relief k) is for pre- and post-judgment “interest at the rate of 21% from April 2006 till judgment and thereafter at the rate of 10% until sum is liquidated”. This Court does not grant pre-judgment interest. See Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd unreported Suit No. NICN/LA/48/2012 the judgment of which was delivered on March 26, 2014 and Miss Odiete Hope Ogaga v. Jopa Energy Ltd unreported Suit No. NICN/LA/408/2012 the judgment of which was delivered on March 26, 2014. However, by Order 21 Rule 4 of the NIC Rules 2007, this Court at the time of delivering judgment or making an order may direct the time within which payment of a judgment sum is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment sum. On the whole, and for the avoidance of doubt, the claimants’ claims succeed in part, and only in respect of the claim for 50% housing upfront allowance deducted in terms of the following four claimants – 1. Badejo Michael Tunde – N125,886.57. 2. Ogunbanjo Foluso – N350,632.11. 3. Odumosu Olufunso – N221,505.95. 4. Abegunde Adebiyi – N350,632.11. It is accordingly the order of this Court that the defendant shall within 30 days of this judgment pay – 1. Badejo Michael Tunde the sum of One Hundred and Twenty-Five Thousand, Eight Hundred and Eighty-Six Naira, Fifty-Seven kobo (N125,886.57) only. 2. Ogunbanjo Foluso the sum of Three Hundred and Fifty Thousand, Six Hundred and Thirty-Two Naira, Eleven kobo (N350,632.11) only. 3. Odumosu Olufunso the sum of Two Hundred and Twenty-One Thousand, Five Hundred and Five Naira, Ninety-Five kobo (N221,505.95) only. 4. Abegunde Adebiyi the sum of Three Hundred and Fifty Thousand, Six Hundred and Thirty-Two Naira, Eleven kobo (N350,632.11) only. 5. Failure to pay these sums as ordered, the said sums shall attract interest at 10% per annum up to such time as they are fully paid. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip