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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: DECEMBER 15, 2014 SUIT NO. NICN/ABJ/30/2011 BETWEEN Aghata N. Onuorah - Claimant AND Access Bank Plc - Defendant REPRESENTATION C. I. Ndukwe, and with him are P. K. Nwachukwu, Frederick Adefarati, J. N. Ezeiyeoke, Miss D. Thomas, Chike Okoro, Miss Kofoworola Akinfenwa and John Ochada, for the claimant. Sheni Ibiwoye, and with him are Richard Oluwole, Ovie Olakpe, Olanrewaju Ajayi, Kenechi Ejidike, Miss B. A. Jiya, for the defendant. JUDGMENT The claimant had taken up a complaint dated and filed on 4th August 2011 against Intercontinental Bank Plc. By an order of Court granted on 26th April 2012, the defendant’s name was changed to Access Bank Plc, the present defendant. By her further amended statement of facts dated and filed on 28th October 2013, the claimant is claiming the following reliefs – a) N743,182.63 the balance of the interest which accrues from the “gratuity benefits” of N3,912,333.30 at the rate of 15% per annum from November 2005 to August 7, 2007, after deducting claimant’s indebtedness. b) N6,620,856.00 being the value of claimant’s shares in the defendant. c) N1,417,626.9 being the underpayment by the defendant with respect to sums paid in lieu of notice. d) N12,514,658.70 being the balance of the redundancy benefits due to the claimant or in the alternative the sum of N4,106,307.6. Accompanying the complaint are the list of witnesses, witness statements on oath, list of documents and copies of the documents. The defendant on its part put in a conditional appearance and also filed amended statement of defence dated 13th November, 2012. Accompanying the amended statement of defence are the list of witness, witness statement on behalf of the defendant and copies of documents. To these defence processes, the claimant filed on 14th November 2012 a reply to the defendant’s statement of defence and a further witness statement in support of her reply to the defendant’s statement of defence wherein the claimant asserted that she is a member of the Association of Senior Staff of Banks and other Financial Institutions (ASSBIFI), was not given a fresh contract of employment by the defendant after the merger, and was never paid any entitlement in line with her due redundancy benefits as a member of ASSBIFI under the NEABAI policy. At the trial, the claimant testified on her own behalf as CW, while Olakunle Olashore, a Manager, Human Resources Department of the defendant testified for the defendant as DW. At the conclusion of trial, parties were asked to file and serve their respective written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s final written address is dated and filed on 9th October 2014, while that of the claimant is dated 5th November 2014. The defendant did not file any reply on points of aw. The case of the claimant is simply that she is entitled to the reliefs she claims, while that of the defendant is that she is not so entitled. The basis of each party’s case can be gleaned in their respective treatment of the reliefs claimed by the claimant, and in respect which the issues framed were tailored. It is to this I now turn. The defendant framed four issues for the determination of the Court, namely – 1. From the facts of the case before the Court, whether the claimant has been paid gratuity for her years of service with the defendant; and if she had been paid, whether she is entitled to any interest whatsoever on the said gratuity; 2. Whether the claimant who voluntarily chose to buy shares with her gratuity can turn around to deny the same and subsequently claim the value from the defendant who is not in possession of the same. 3. From the state of pleadings and the facts before the Court, whether it can be said that the claimant is a member of ASSBIFI and thereby entitled to benefit under the collective agreement. 4. From the facts of the case before the Court, whether claimant has proved by preponderance of evidence that she was underpaid in lieu of notice, and/or whether she is entitled to any other entitlement aside what was paid by the defendant. Regarding issue 1, the defendant submitted that it merged with three other banks, and this necessitated the services of all employees of the four banks to be terminated precisely on 31st October 2005 and a new contract of employment issued to all retained and fresh employees, the claimant inclusive. For this reason, there was no transfer of service for any of the staff of the merging banks. That the claimant knew and accepted this without an iota of compromise whatsoever. That further to the aforesaid termination, the claimant’s gratuity was calculated as N3,912,330.30 by the defendant bank as it is the tradition; and that the claimant agreed with the defendant that her gratuity had been paid and clearly stated this fact in her witness statement on oath. That it is trite that facts that are admitted need no further proof, referring to Begh Ltd v. UHS & L. Ltd [2011] 7 NWLR (Pt. 1246) 285. That both parties agreed in their respective pleadings and there is no reason to further proof this, citing Agbanelo v. UBN Ltd [2000] 7 NWLR (Pt. 666) 534. The defendant accordingly submitted that it is settled between the parties that the claimant had received her gratuity from the defendant and the defendant is not indebted to her in any way with respect to the pre¬merger entitlement. On the issue of the claimant’s claim for interest on the said gratuity, the defendant submitted that gratuity to any staff, the claimant inclusive, is management largesse which obviously is accessible to her like every other staff on exit from the bank. To the defendant, it is without doubt that the claimant worked with the defendant for a specific number of years precisely from 1995 to 2005 when her employment was terminated. It is in view of this that the defendant made provision for her to be entitled to gratuity when she stopped working with the defendant in 2005. That provision for this is on page 31 of Exhibit D2, which is a direction to staff on how to obtain details of their gratuity scheme. This is also known to the claimant. Thus, that the process for the approval of the said gratuity by the board is expected to be for a period of time and the staff could not have been advised on the same before exiting or before the board’s approval. In view of the aforesaid, the defendant submitted that no interest whatsoever could have yielded on the gratuity of the claimant because the same was in the process of calculation and approval as the gratuity was not in existence for it to yield interest. Consequent upon the aforesaid, the defendant went on that the defendant is a company that operates under management and Board of Directors. That for each staff to be entitled to gratuity, the board of the defendant will meet and approve the gratuity of every exiting staff who is so entitled, the details of which the staff in question can obtain from the Human Resources Department of the defendant. That this is as provided at page 31 of Exhibit D2 which is the staff handbook. Further to the issue of interest on the claimant’s gratuity, the defendant added that no interest can or should be claimed on what was not in existence or what will happen in the future, as one cannot build something on nothing and expect it to stand just as one cannot give what one does not have, nemo dat quod non habet, citing Egbuta v. Onuna [2007] 10 NWLR (Pt. 1042) 298 at 316. To the defendant, it is the general practice that when a staff is entitled to gratuity, such gratuity cannot be calculated and/or paid to the entitled staff the day he or she is leaving the employment; there is a process that such gratuity must pass through before it is paid. It is this same process the gratuity of the claimant passed through that resulted into it not been paid straight away after the termination of her pre-merger employment. Thus, it is between the period of time for the calculation of the claimant’s gratuity and the meeting of the board that the claimant is claiming interest in respect of. The defendant then submitted that this claim of the claimant is absurd and frivolous and should be denied as she cannot claim interest on what is yet to be approved by the board. Furthermore, that the claimant exercised the option of taking up another employment with the bank after the bank merged with other banks and this means she was left with two options of investing her gratuity as she was still in the employment of the defendant. These options are, either to invest her gratuity in stock market as the stock market was on the rise or to deposit the same in a tenured deposit account because the bank was offering good interest rate on all tenured deposits at that time. It is important to submit that the reason for these options was because the claimant was a still a staff of the defendant and could not be allowed access to her gratuity until she exited the defendant bank. Consequent upon the above, the defendant acknowledged that the figure quoted by the claimant in the sum of N3,912,333.30 is correct, and Exhibit D2, which is the staff handbook available to all staff including the claimant, clearly states that details of the gratuity scheme can be obtained from the human resources management department. That the claimant did not at any point in time request for the details of her gratuity from the department neither did she make any official complaint on record about her gratuity. This she also attested to under cross-examination that she did not ask or make any official complaint on record about her gratuity. To the defendant, the claimant knew this process of gratuity and its approval by the board before she will be entitled to be advised on the same and that is why she did not complain throughout this period. That it is now out of place for the claimant to complain when she did not before and subsequently claim interest on a gratuity that was not in existence as at October 2005. In view of this, the defendant urged the Court to dismiss the claim of interest on the claimant’s gratuity as the same is gold-digging and an absurdity in law because no gratuity was in existence as at then and no reason to claim interest on the same. On issue 2 i.e. whether the claimant who voluntarily chose to buy shares with her gratuity can turn around to deny the same and consequently claim the value of the shares from the defendant who is not in possession of the same, the defendant submitted that the claimant chose to buy shares with her gratuity and cannot turn around and deny the same now. That the claimant’s employment with the defendant was terminated, which resulted into the claimant being entitled to her pre-merger gratuity. However, as the claimant is still in the employ of the defendant, the said gratuity could not be paid to her directly. The defendant having realized this fact gave options to the claimant and other staff who were still in the employment of the defendant, but entitled to pre-merger gratuity benefits. That the gratuity investment options given to the claimant was either she invest her gratuity in stock (as the stock market was on the rise as at then and which she could also take advantage of) or the claimant deposits her gratuity in an interest yielding account with the defendant as the bank is offering good interest rates on tenured deposits. These were the investment options available to the claimant and other exiting staff of the bank who chose to still be in the employment of the defendant. These options were given to them without any ulterior motive whatsoever but in the best interest of their staff. To the defendant, it is important to submit at this juncture that the claimant is not qualified to access her gratuity because she was still a staff of the defendant as at then. However, the defendant in its wisdom did not want to retain the gratuity benefit due to its existing staff, deemed it fit to invest the same for them in order for it to yield interest, while the claimant continued her employment with the defendant. The defendant continued that it is also worthy to note that it could have decided not to give the claimant her gratuity yet, as she was still in the employment of the defendant or to keep the gratuity in its own account with the intention of paying the claimant when she finally exits the bank. However the board of the defendant did not take these options, rather they decided to give her investment options for her gratuity to yield interest. The defendant drew the Court’s attention to paragraph 15 of the claimant’s witness statement on oath where she stated without mincing words that she completed and submitted her share investment form. That this was done voluntarily by the claimant and without force or persuasion from any quarter whatsoever. The defendant also reiterated that other staff who were also in the same position like claimant and were also entitled to gratuity had options. Some chose the option of depositing their gratuity in an interest yielding account as the same offered good interest rate; while the claimant with some other staff chose for themselves investment in stock due to the rise in stock as at then. To the defendant, the question that comes to mind now is: what in God’s name actually prompted the claimant’s turn around to deny the investment in stock she voluntarily chose and completed Investment Form for? That the answer to this is not far-fetched. Nothing could have prompted her denial except the fall in the prices of shares. That the claimant cannot approbate and reprobate at the same time; neither can she undo what she voluntarily chose on her own volition to do given that she voluntarily (out of other options available to her) chose to invest in shares with her gratuity. In view of this, the defendant submitted that the claimant had chosen to invest her pre-merger gratuity in stock and cannot deny the same. For that reason, that the Court should disregard her denial and dismiss her claims to that effect. To the defendant, having clarified the fact that the claimant voluntarily elected to invest her gratuity in stock, it is important to submit that it is out of place for the claimant to claim the value of her shares from the defendant when it is obvious the said shares do not reside with the defendant. That the claimant has misdirected her claim to the wrong party for the value of her shares. The claimant knows that the defendant is not in charge of her shares and cannot claim the same from the defendant. If the claimant wants her shares or the value of the same, then she should have joined the proper party to this suit, as the defendant is not a proper party with respect to her shares or the value of the same. The defendant then submitted that the Court should dismiss the claimant’s relief for N6,620,856.00 for value of claimant’s shares in the defendant as there is no such share with the defendant as claimed by the claimant. That if the Court grants such claim against the defendant, then the award will serve no useful purpose whatsoever as the shares or it value has nothing to do with the defendant. That it is trite that the Court will not grant a relief that is of no use to the applicant, referring to PPA v. INEC [2012] 13 NWLR (Pt. 1317) 215 SC at 236. The defendant went on that the claimant had no complaint whatsoever on her investment in shares when she chose this option. She knew it was a good investment due to the rise in stocks as at then and went for it. If she never wanted the same as she claimed under cross-examination, she would have lodged a complaint to the management of the defendant or chosen to save her gratuity in an interest yielding account being another option she had. That if the claimant has any issue with her gratuity being invested for her from on set, she had all the time in the world to complain about this most especially when share prices were on the rise and not now. That the claimant would not have made an iota of complaint if the share price was still on the high and profitable like before and she was sure of making profits on the same. However, she chose to complain now and wants the Court to undo what she voluntarily entered into. That it is an agreement reached between the parties that her gratuity should be invested in shares, and it is trite that the Courts are not allowed to make or re-write agreements between parties, citing UBN Plc v. Soares [2012] 11 NWLR (Pt. 1312) 550 CA at 571. The defendant continued that in paragraph 15 of the claimant’s witness statement on oath, she stated that she completed and submitted to the bank the Share Investment Form. However, that she denied the same under cross-examination and said that she was not aware that shares were bought in her name. That these are contradictions in the evidence of the claimant which go to the root of the case and the Court cannot act on such contradictory evidence, citing Ali v. Salihu [2011] 1 NWLR (Pt. 1228) 227 CA at 261. With respect to the claimant’s assertion in paragraph 24 of her witness statement on oath that she would have sold her shares when it was most profitable to sell the same, the defendant contended that this is another pointer to the effect that she had always been aware of the existence of the purchase of shares with her gratuity because the same was done with her consent and blessing. Consequently, that the Court should disregard her testimony that she requested for details of the shares from the bank as she has given no evidence whatsoever before the Court to prove these facts either by way of letter, memo or mail of any kind. It is the law that a party who pleads a certain fact in her pleadings must adduce or support the same with evidence as averment as in pleadings do not take the place of proof of facts deposed to in pleadings, referring to Guinness (Nig.) Plc v. Onegbedan [2012] 15 NWLR (Pt. 1322) 31 CA at 51 – 52, EB Plc, Awo Omamma v. Nwokoro [2012] 14 NWLR (Pt. 1321) 488 CA at 508 and Akinyinka & anor v. More Time C02 Gas Plant Ltd [2011] 23 NLLR (Pt. 66) 447 NIC at 465 – 466. In conclusion on issue 2, the defendant submitted that the claimant cannot claim her shares or the value of the same from the defendant when she knows that the defendant is not in possession of them. That the claimant herself stated in paragraph 21 of her witness statement on oath that she made enquiry with summit finance company limited and realized that an account was opened on her behalf. She even went ahead and applied for the statement of account which is Exhibit H and the same was delivered to her. In view of this, the defendant submitted that she is well aware that her shares or its value do not reside in the defendant. In view of the aforesaid facts, the defendant urged the Court to dismiss the claim of the claimant for value of gratuity and interest on shares because the claimant had been paid her gratuity and no interest can be claimed on the same. Also there is no justification for value of share that is not in the possession of the defendant. Regarding issue 3 i.e. whether it can be said that the claimant was a member of ASSBIFI and thereby entitled to benefit under the collective agreement, the claimant submitted that contrary to the position of the claimant, she is not a member of the Association of Senior Staff of Banks, Insurance and Financial Institution (ASSBIFI) and for that reason she is not entitled to redundancy benefits under the collective agreement as per Exhibit E as a beneficiary. To the defendant, for one to be a member of a union, there are certain things that are expected. That being a member is not automatic or based on being just a staff of the bank. The law is clear on this. The claimant, though was a senior staff in the employment of the defendant, cannot be an automatic member of the union (ASSBIFI). Avalanche of decided cases have made it clear that for someone to be a member of a union (like the Association of Senior Staff of Banks, Insurance Financial Institution) such a senior staff must individually and in writing opt to join the union in question, referring to Gbadegesin v. Wema Bank Plc [2012] 28 NLLR (Pt. 80) 274 NIC at 305 and Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90 NIC. To the defendant, in order for the claimant to proof her membership of ASSBIFI as claimed, she must show proof/evidence of her membership to the Court. That the claimant has not in any manner showed or proved this either with documents or otherwise. The defendant went on that under cross-examination the claimant testified to the effect that she joined ASSBIFI in 2007. She was further asked to show proof of joining ASSBIFI as she claimed, she could not provide any proof to that effect of her membership of ASSBIFI in any manner. That she only asserted to be a member in her pleadings but could not prove the same. That the law is clear that he who asserts must proof, referring to Guinness (Nig.) Plc v. Onegbedan (supra) and Nsionu v. Nsionu [2011] 16 NWLR (Pt. 1274) 536 CA at 574. The defendant continued that there is no doubt about the fact that the claimant was a senior staff of the defendant bank, which is a pointer to the effect that her membership is not automatic. That what she needed to do was to opt or elect to be a member of ASSBIFI as that is the law that senior staff must individually signify interest to be a member of ASSBIFI, citing See Gbadegesin v. Wema Bank Plc (supra). That because the claimant did not show any interest to join ASSBIFI, no deductions were made from her salary as to check-off dues as Exhibits D1(a) – D1(j) which are the claimant’s pay slips will attest to this fact. To the defendant, the claimant cannot reap where she has not sowed. That there is no iota evidence before the Court to indicate the claimant is a member of ASSBIFI and thereby entitled to benefit under the collective agreement in issue. That what this literally means is that so far as the claimant has not proved her membership of ASSBIFI in anyway either by payment of dues to the union or by evidence in writing to the defendant or the union signifying interest to be a member and to cap it all, she did not lead any evidence to proof her averment in pleadings of being a member of the union, then the collective agreement sought to be relied upon by the claimant cannot stand. In view of this, the defendant prayed the Court to dismiss the claimant’s claim with respect to this as it is gold-digging. The defendant then urged the Court to dismiss the claimant’s claim for N12,574,658.70 being the balance of the redundancy benefit due to her and the alternative prayer of the sum of N4,106,307.6 because the sums have no legal justification since she was not a member of ASSBIFI by any standard. That the management reserves the right to terminate the appointment of employees as may deem fit in line with the contract of employment between the parties and this gave rise to benefits upon disengagement which has been duly paid in view of the contract agreement between the parties. On issue 4 i.e. whether the claimant has proved by preponderance of evidence that she was underpaid in lieu of notice and/or she is entitled to any other entitlement generally aside what was paid by the defendant, the defendant contended that the assertion of the claimant that she was underpaid is not correct. That she was not underpaid by the defendant; and so it is her duty to prove to this Court by preponderance of evidence that she was underpaid, which she has not done. That it is trite law that the Court would only give to a party his proven claim, citing Akuiburo v. Mobil Oil (Nig.) Plc [2012] 14 NWLR (Pt. 1319) 42. The claimant had stated in paragraph 30 of her witness statement on oath as follows – That by the letter of March 19, 2010 the defendant informed me of the revised disengagement benefits which was put at N1,602,302.67, comprising ex-gratia, in lieu of notice and 25% enhance ex-¬gratia. After deducting my indebtedness of N2,030,508.39 from N1,602,307.76, the indebtedness dropped to N428,200.72. To the defendant, from the deposition by the claimant in her witness statement on oath, it is quite obvious that the she was paid by the defendant in lieu of notice; and this payment was calculated and approved by the defendant’s board and advised to the claimant. That this means that calculation of statutory benefits is the duty of the defendant and its board in accordance with the agreement between the parties and not the duty of a staff (claimant) to do. This is what the defendant has done and paid to the claimant as seen above from the witness statement on oath. The defendant went on that by the claimant claiming she was underpaid, she is asserting that the defendant did not pay her according to her own calculation of what she thinks she deserves, and not what was agreed by both parties in accordance with the contract between them and then put the same before the Court without leading credible evidence before the Court to show she was underpaid. The defendant drew the Court’s attention to paragraph 30 of the claimant’s witness statement on oath which showed that the claimant accepted that she was informed and consequently received her disengagement benefits after due calculation by the defendant as it is on Exhibit C (the disengagement letter dated March 19, 2010). That paragraph 30 of the claimant’s witness statement on oath is a corroboration of Exhibit C. The defendant continued that the sum the claimant is claiming is without evidence showing how the same was arrived at. That the claimant did not plead a single document in this case to prove and or lead evidence on how she arrived at this figure. That the calculation of entitlement after disengagement is not the duty of a staff, but that of the defendant as pleaded in Exhibit C. It is also out of place for the claimant to plead what she thinks she is entitled to as her 3 months’ salary in lieu of notice and expect the Court to grant her claims without proof. That the Courts have gone past the days of being Father Christmas, dashing out reliefs just because the same was claimed without proving or leading evidence to the same. To the defendant, it is the law that where a party files his pleadings but does not give evidence in support of the said pleadings then the pleading is deemed to have been abandoned, citing EB Plc. Awo Omamma v. Nwokoro [2012] 14 NWLR (Pt. 1312) 488 at 508, Union Bank of Nigeria v. Jimba [2001] 12 NWLR (Pt. 727) 505 at 518 and Mirachem Dani v. Pinheiro [2001] 3 NWLR (Pt. 701) 557. The defendant then drew the attention of the Court to Exhibits D1(a) – D1(j) which are the claimant’s pay slips from December 2005 to July 2009. That the Court will see that the defendant was diligent in the payment of the claimant’s salary throughout her post-merger employment. The claimant’s loan was deducted from what the claimant was entitled to as seen in Exhibit C. This is to buttress the fact that the defendant did not only plead that it paid the entitlement of the claimant, it also led evidence in proof that she was on loan and the same was deducted from her entitlements. These claims were supported with the aforesaid documents. That it is trite that the onus to proof an assertion lies on the party that made the assertion, referring to Afolabi v. WSW Ltd [2012] 17 NWLR (Pt. 1329) 286 at 306 and Kuti v. Alashe [2005] 17 NWLR (Pt. 955) 625. That since the claimant claimed that she is entitled to a certain sum, then she should have led credible evidence to show how she arrived at this as the onus lies on her. Further to the above, the defendant submitted that the claimant’s claim of N1,417,626.9 being underpayment by the defendant with respect to sums paid in lieu of notice is a claim for special damages which must be proved specifically. This proof must be comprehensive, credible and incorporate all conditions required in proof of special damages, citing Taylor v. Ogbieneoro [2012] 13 NWLR (Pt. 1316) 46 at 62. However, that in the instant case, no scintilla of evidence was led in proof of this claim for the sum N1,417,626.9 for underpayment in lieu of notice. For that reason, the same should be rejected and dismissed by the Court. In conclusion, the defendant urged the Court to dismiss this suit. The claimant framed one issue for the determination of the Court, namely: whether the claimant proved her case to be entitled to the reliefs sought for in this suit. To the claimant, from the state of the pleadings and evidence adduced in this suit, she is entitled to each of the reliefs sought for in this suit, urging this Court to so hold. Thereafter, the claimant addressed each of the reliefs claimed. Regarding the claim for N743,182.63 being the balance of the interest due to the claimant, the claimant contended that she started work with defendant in January 1995 when it was known as Nigerian Intercontinental Merchant Bank Ltd, which later became Intercontinental Bank Plc (now Access Bank Plc.). That the said bank later merged with three other banks in 2005. That by the letter of October 10, 2005, Intercontinental Bank Plc after the merger appointed the claimant as a Relationship Manager with effect from November 1, 2005. The letter of October 10, 2005 was tendered as Exhibit B2. Two years after, and by an Internal Memo dated 02/08/2007, the Intercontinental Bank Plc informed the claimant of the decision of its Board of Directors to terminate the employment of all staff at the merger and commenced new employment effective from November 1, 2005. The bank by the same Memo calculated the “gratuity benefits” due to the claimant as at October 31, 2005 and placed same at N3,912,333.30. That by paragraphs 3, 4 and 5 of the amended statement of defence, the defendant admitted all the facts stated above. The defendant admitted first, that the gratuity benefits due to the claimant was only N3,912,333.30; and second, that the gratuity was due from November 1, 2005. However, the defendant only informed the claimant of the said gratuity on August 7, 2007, that is 645 days after it was due. To the claimant, she testified in her deposition that from November 1, 2005 to August 7, 2007, a period of about 645 days, the defendant willfully deprived her of the opportunity to use or profitably invest her said gratuity benefits. It is the case of the claimant that defendant has no justification in law to do so. That the only response to this relief by the defendant is contained in paragraph 10 of its amended statement of defence where it stated that the defendant was unable to calculate claimant’s gratuity because such payment needs Board’s approval. The defendant averred further that the delay was because of the process of approval of gratuity by its Board. That this is a clear admission by the defendant that there was a delay of about 645 days as proved by claimant. To the claimant, the defendant’s evidence through DW as to the reason for the delay is hearsay, as he only recounted in his deposition either what he was told or what he read from the records kept by the defendant. That the defendant labored very strenuously to justify this delay. Regrettably, it failed to tender one cogent reason in law which justifies it to deny the claimant of her gratuity benefits for the period of 645 days. Counsel for the defendant tried to convince this Court that it is the general practice that gratuity is not paid in time by companies. The claimant then urged the Court to reject counsel’s address on the alleged general practice of companies regarding the process of approving staff gratuity for the reasons that address of the defendant's counsel no matter how brilliant does not constitute evidence, citing Aro v. Aro [2000] 3 NWLR (Pt. 649) 443 at 457 and Obasuyi v. Business Ventures Ltd [2000] 5 NWLR (Pt. 658) 668 at 690; such general practice was not pleaded by the defendant and even if pleaded, there was no legal evidence from the defendant to prove same as it is trite law that a party is bound by its pleadings and evidence cannot be given in respect of material fact not pleaded, citing Buhari v. INEC [2008] 4 NWLR (Pt. 1078) 546 at 629; and such alleged general practice is not a matter which this Court can take judicial notice of under the Evidence Act 2011. The claimant went on that she gave unchallenged and uncontroverted evidence that at the time in question, the defendant charged 15% interest on tenured deposits per annum. She also stated in her deposition that based on 60-day investment cycle, the estimated interest income from the gratuity benefits is N1,171,383.35 only. She further stated that after netting off the claimant’s indebtedness of N428,200.72, the balance due to the claimant is N743,182.63 which the claimant now claims from the defendant. That in the absence of any evidence from the defendant which debunked or ¬discredited this evidence of the plaintiff, the Court should hold that the she has proved her entitlement to this relief. That the defendant has failed to justify the delay of 645 days in paying the claimant the gratuity due to her. She urged the Court to grant her the relief as prayed. On the claim for N6,620,856.00 being the value of the claimant’s shares in the defendant’s bank, the claimant testified that she was employed in Nigerian Intercontinental Merchant Bank Ltd in 1995, as a Supervisor and rose to the position of Relationship Manager. With the merger of the said bank with Intercontinental Bank Plc in 2005, the claimant was appointed to the position of an Assistant Manager in the new bank, referring to Exhibit B2, the letter of appointment from the bank. That it is in evidence that Intercontinental Bank Plc later claimed to have terminated the employment of the claimant on 31st October 2005, and put the claimant’s gratuity benefits at N3,912,333.30 only. The Bank only informed the claimant of this gratuity benefit in August 7, 2007 and not in 2005 when the gratuity became due. That she stated in her witness statement on oath that the bank did not allow her to take her gratuity and spend as she desired but compelled or mandated her to invest same in tenured deposit with the bank or in the shares of the bank. Outside the two options given to the claimant, she had no right to use or invest her gratuity benefits as she desired. That not having the liberty to invest her gratuity benefits as she so desired, the claimant was constrained to fill the share investment form given to her by the bank and heavily relied on the Bank’s claim of professional track record share investment management. Thereafter, the bank withheld all information and details relating to this investment of claimant’s gratuity in shares of the bank. Vital bits of information such as the date of purchase, the quantity purchased, the price(s) at which shares were brought, and the name of the stockbroker were kept top secret by the Bank despite inquiries by the claimant. That she testified in her witness statement on oath that she only became aware of these details in 2010 following her disengagement from the bank. She then submitted that the alleged share purchase was merely a hoax to deny the claimant of her gratuity. That if the Bank had no ulterior motive, it would have advised the claimant after purchase and allowed her access to the said gratuity investment. The claimant went on that she only became aware of the details of the investment of her gratuity benefits for the first time via Exhibit C, the letter of March 19, 2010 titled “Re: Disengagement Letter Revised”. According to the said letter the claimant was told that her “pre-merger gratuity” was used to acquire 106,046 share units of Intercontinental Bank Plc under the management of Summit Finance Ltd, and directed the claimant to go to Summit Finance Ltd, the stockbroker “for collection of same”. She urged the Court to hold that by the said Exhibit C dated March 19, 2010, the defendant first informed the claimant of the number of shares thus purchased with her said gratuity benefits, given the name of the stock broker and authorized to have access to the said shares, claimed to have been purchased by her said gratuity benefits. She further urged this Court to hold that the defendant by its action has willfully prevented the claimant from making use of her gratuity investment, and disposing of same when it was profitable for her to do so. The claimant continued that she also stated in her deposition that the said Summit Finance Ltd is a company where the Chairman of Intercontinental Bank Plc has a major interest, and used by the Managing Director to cross-over the shares of the bank to members of his staff at exorbitant prices, referring to paragraph 11 of her deposition. That the defendant by paragraph 7 of its statement of defence admitted that the bank gave the claimant only two options for investing her gratuity benefits; and by paragraphs 14 and 15 of its statement of defence, the defendant admitted that the claimant can only access this gratuity on exit from the bank. In other words, she cannot access her pre-merger gratuity benefit of N3,912,333.30 until her exit from the bank in December 18, 2009. Furthermore, that DW, under cross-examination also admitted that the claimant and all other staff of the bank whose gratuity benefits were due in 2005 were given only two options for investing their gratuity benefits. He also admitted that the claimant and the other affected members of staff cannot take their gratuity benefit or the investment until the staff finally exits or resigns from the bank. That in answer to the Court’s question as to the party that will bear responsibility for the risk of the investment, DW said that it was the claimant. According to him, the claimant can only access the said gratuity investment on resignation with all the attendant risks. From risk perspective, the bank unduly exposed the claimant as she was made to put all her eggs in one basket. In the light of the evidence before the Court, the claimant urged the Court to hold the following facts of this case as true, correct and having been proved – 1. The claimant started work with Nigerian Intercontinental Merchant Bank Ltd in 1995 and following its merger with Intercontinental Bank Plc in 2005, the bank claimed to have terminated the employment of the claimant. 2. The bank in 2007 calculated the gratuity benefit of the claimant from 1995 to 2005 and put it at N3,912,333.30 only. 3. The Bank informed the claimant of this gratuity benefit but never allowed her to invest same as she so desired. 4. The Bank dictated two options for the claimant to invest the said gratuity benefits namely in tenured deposits or shares of the bank, and the claimant invested in the shares of the bank. 5. The claimant had no right or freedom to invest or use her gratuity outside these two “compulsory options”. 6. At the time the claimant was compelled to invest in the said two options, the claimant was not told that she cannot access the said invest until she exits the bank. 7. The defendant after the compelled investment, now insisted that the claimant cannot access the said gratuity investment unless when exiting the defendant’s bank, which took place in 2009. The claimant not informed of this term from inception. 8. It was by the letter of March 19, 2010 (Exhibit C) that the claimant was allowed to take the benefit of her gratuity investment. To the claimant, it is important to clarify the point that the gratuity benefit of the claimant in issue covers the period between 1995 and 2005. The letter of disengagement of March 19, 2010 (Exhibit C) was quite clear on this when it referred to the said gratuity as “pre-merger gratuity”, referring to paragraph 4 of the defendant’s statement of defence. That by paragraph 6 of the statement of defence, it is clear that the said gratuity benefit was for the claimant’s employment from 1995 to 2005, the time of the said merger; and DW equally confirmed this in paragraph 6 of his witness statement on oath. The claimant went on that it is settled law that gratuity is one of the terminal benefits which an employer is under a legal duty to pay to his employee once it is due. An employee is also entitled to receive and use or invest his gratuity once paid. It is not the business of an employer to dictate or determine to an employee how to invest his gratuity or to impose “compulsory” options on the employee on how to invest his gratuity, as was done in this case by the defendant. The claimant then invited the Court to note that the claimant was merely informed of the calculated gratuity benefit of N3,912,333.34. It was not the case of the defendant that it, in fact, paid this sum of money to the claimant. The defendant only informed (as distinct from paying) the claimant of this amount, and then dictated how it should be invested. This is contrary to law, the terms and conditions under which the claimant was employed. That the onus is on the defendant to show that the law or the terms of its employment with the defendant supports its actions. That it is trite that the party who asserts has the onus to prove his assertion, citing Afolabi v. WSW Ltd [2012] 17 NWLR (Pt. 1329) 286 at 306. It is the submission of the claimant that the defendant has failed to give any justifiable reason in law for only informing the claimant of the said gratuity benefit without paying same; for dictating to the claimant how and where to invest her calculated gratuity benefit; and for denying the claimant of access or use of the said gratuity investment, as she so desires. Neither the letter of January 25, 1995, tendered as Exhibit A, which contains the terms of the claimant’s employment with the defendant nor the its Staff Handbook tendered as Exhibit D2 supports the defendant’s actions. That the only reason given by the defendant was that such investment was in the best interest of the claimant and other affected staff of the bank (paragraph 7 of the statement of defence and paragraphs 4.3 to 4.5 of the defendant’s written address); and in paragraphs 4.6 to 4.10 of its written address, the defendant labored to justify this illegality by submitting that the claimant voluntarily elected to invest her said gratuity benefits in the shares of the bank, and having done so, she cannot now deny the investment and seek to claim the value thereof in this suit. The claimant then urged the Court to hold that the issue is not whether the claimant chose the option of investing in the shares of the defendant but first, whether it is lawful for the defendant to inform without in fact paying the claimant her gratuity benefits; second, whether it is lawful for the defendant to impose on the claimant how and where to invest her gratuity benefit; and third, whether it is lawful for the defendant to deny the claimant access or use of such gratuity investment as done in this suit. To the claimant, the conduct of the defendant in not paying the claimant her due gratuity benefit; dictating for her how and where to invest her computed gratuity benefit and denying the claimant of access or the use of the said gratuity benefit as was done in this case is not only illegal and contrary to her terms of employment, it also amounts to unfair labour practice which should not be condoned by this Court. That in Mix Bake Flour Mill Industries Ltd v. National Union of Food, Beverages and Tobacco Employees [2004] 1 NLLR (Pt. 2) 248, it was held that unfair labour practice is the conduct or practice of an employer which is not in conformity with best practice in labour circles as may be enjoined by local and international experience. Also referred to the Court is Rubber Products Workers Union of Nigeria v. Odutola Tyre Soles Co. Ltd [1989 – 1990] NICLR 89. The claimant then submitted that since the defendant admitted that the claimant’s said gratuity benefit was due in 2005, the Bank was under a legal duty to pay the calculated gratuity benefit of N3,912,999.99 to the claimant forthwith without any conditions whatsoever. That anything to the contrary is unlawful and violates the terms and conditions of the claimant’s employment with the defendant; and it is illegal for the defendant to merely inform the claimant of the gratuity benefit without in actual fact paying same forthwith. To the claimant her claim for the value of the shares is in nature of a claim for specific damages suffered by the claimant as a result of the several illegalities committed by the defendant with regard to the claimant’s pre-merger gratuity benefits. That the onus on the claimant is to prove by credible evidence that she suffered the said damages due to the unlawful conduct of the defendant; and also how the said damages arose, referring to Taylor v. Ogbieneoro [2012] 13 NWLR (Pt. 1316) 46 at 62. That she gave unchallenged and contradicted evidence that when the shares of Intercontinental Bank Plc were at their peak in 2008, she contacted the defendant for the details and sale of her shares but the defendant denied her access to same. That the defendant had variously in its statement of defence and written address canvassed the position that the claimant is not entitled to have the gratuity investment while still in its employment. In other words, the defendant admitted that it denied the claimant of her gratuity investment. The claimant went on that she found out for the first time in 2010 via her disengagement letter of March 19, 2910 (Exhibit C) that the defendant only acquired 106,046 units of shares with the said gratuity benefit of N3,912,333.30, at the price of N36.89 per share. The claimant also gave evidence that as at the period between August 7, 2007 when she filled and submitted the share investment form and August 31, 2007, the prevailing unit share price of the share of Intercontinental Bank Plc ranged between N22.98 and 26.00 only. The claimant relied on the Intercontinental Bank Price History, which was tendered as Exhibit G. She answered under cross-examination that the price at which the bank purchased was contrary to the prevailing price between August 7 and August 31, 2007, referring also to paragraph 27 of her deposition. That this piece of evidence was neither challenged nor controverted in evidence by the defendant. She further stated in her deposition that her gratuity benefit of N3,912,333.30 could have fetched 159,474 units of shares based on the higher price range of N26.00 per unit of share; and 170,249 shares based the lower unit price of N22.98. That she also gave uncontroverted evidence that in 2008 when the share of the defendant was at its peak of N44.00 (Forty-Four Naira) only, she contacted the defendant for the details and sale of her shares but the defendant refused to grant her access to the same. Her plan was to sell her shock when it was most favourable for her to do so but the defendant refused her access to her gratuity investment. She continued that the market value of her gratuity share investment in the said 2008 when she called for details and sale of same was N6,620,856.00, referring to paragraphs 23 – 25 of her deposition. As a result of the refusal by the ¬defendant to grant plaintiff access to her gratuity investment, the claimant was unable to sell when it was most profitable for her to do so. That as at March 19, 2010 when the defendant finally permitted her to have access to her gratuity investment, the value of the defendant’s shares had dropped to N1.00 (one Naira only) per share. At this time in question the market value of the shares was only N106,046.00 and this progressively dropped to N99,683.24 only as at June 2011. It is, therefore, her submission that she suffered this huge loss because the defendant willfully refused her the right to receive and take away her calculated gratuity of N3,912,333•30, as at 2005 when it was due or even as at August 2, 2007 when she was informed of the gratuity. Secondly, this huge loss suffered by the claimant was also the direct effect of the defendant’s refusal to allow her access to the said gratuity investment which claimant could have sold at the market value of N6,620,856.00 only in 2008. To the claimant, as required by law, she tendered credible evidence in proof of how she sustained this damage. That she also adduced evidence to show the several illegalities done by the defendant which resulted to the claim for N6.620.856.00 being the market value of her gratuity investment. That the defendant did not in any way challenge or controvert the claimant’s evidence in proof of this relief; and so on the authority of Fari v. Federal Mortgage Finance Ltd [2002] All FWLR (Pt. 235) 27 at 44, Hassan v. Atany [2002] 15 NWLR (Pt. 770) 581, Omoregbe v. Laan [1980] 34 SC 108; and Odebunmi v. Abdullahi [1997] 2 NWLR (Pt. 489) 526 and Ijebu Ode Local Government v. Adedeji Balogun & Co. Ltd [1991] 1 NWLR (Pt. 166) 136 at 159, she is entitled to her claim regarding the share loss. The claimant then urged the Court to hold that the claimant has established her entitlement to this relief as per her claim in this suit. In the circumstances, that the Court should discountenance issue 2 of the defendant and all the arguments in that regard as being misconceived and not founded either in facts or in law. That the issue is not whether the claimant voluntarily elected to invest in shares but whether it is lawful for the defendant to impose compulsory investment options it did; and whether it is lawful for the defendant to deny the claimant access to the investment until March 19, 2010. The claimant also submitted that the argument of the defendant that the claimant cannot claim the value of the shares from the defendant because the management of the shares was not under its charge but under the charge of an entirely different entity who was not made a party to this suit is to say the least untenable and has no basis in facts and in law. That the defendant cannot be heard to argue that the claimant cannot claim the value of the shares from the bank because the said shares do not “reside in the defendant” (whatever that means). That in its pleadings (paragraphs 14 and 15 precisely) and evidence of DW under cross-examination, the defendant severally admitted that the claimant was not entitled to access to the gratuity investment any time before her exit point with the bank. That it is important to note that the claimant was not told at the time of the compelled gratuity investment that she will never have access to the said investment until her exit from the bank. It was only in 2010 that the defendant allowed the claimant to take benefit of the said investment and had knowledge of the alleged stockbroker. To the claimant, the damages which she suffered did not arise because the shares purchased with the gratuity benefits do not “reside in the bank” or were otherwise being managed by a broker different from the defendant. Instead, the damages arose out of the several illegalities done by the defendant relating to the said gratuity benefits as sufficiently argued in this written address. The claimant accordingly submitted that the relief for the sum of N6,620,856.00 being the value of the claimant’s shares in the stock of the defendant is sustainable against the defendant who did not only impose on the claimant on how and where to invest her gratuity but also illegally denied her access to the said investment. Consequently, that the Court should hold that the claimant has proved this relief against the defendant. Regarding the claim for N1,417,626.70 being underpayment by the defendant in lieu of notice, the claimant contended that the arguments of the defendant’s counsel on this issue are grossly misconceived as they were not based on the facts established in evidence by the claimant, and clearly admitted by the defendant. That counsel for the defendant referred this Court to paragraph 30 of the claimant’s witness statement on oath where the claimant stated that by the letter of March 19, 2010 (Exhibit C) she was informed of the revised disengagement benefits which also stated that the defendant paid only N474,999.99 in lieu of notice. The claimant then submitted that the said paragraph 30 only re-stated the contents of Exhibit C which showed what the defendant paid in lieu of notice. To the claimant, the said paragraph 30 does not in any way constitute an admission by the claimant that what the defendant paid was in accordance with the terms of her employment. The claimant went on that she gave evidence that she rose to the position of Deputy Manager in the defendant’s bank as at the time of her disengagement in December 18, 2009. At page 11 of the Staff Hand Book (Exhibit D2) paragraph 1.7 under RESIGNATION, it is provided that each party (the bank) shall in lieu of notice pay cash in lieu of the period of notice applicable to the staff. By this Exhibit D2 the claimant is entitled to be paid 3 (three) months’ salary in lieu of notice. That if counsel for the defendant had taken time to carefully examine the said Exhibit D2, he would not have submitted, quite erroneously, as he did that it was not part of the defendant’s terms of employment with the claimant that she would be paid three month’s salary in lieu of notice. The claimant then urged the Court to dismiss all the submissions of the defendant’s counsel on this issue as they were made in error. The claimant continued that she stated in her deposition that her employment was terminated in December 18, 2009 without any notice. She also gave evidence in support of her pleadings that her salary for three months amounted to N1,892,628.87, referring to paragraph 31 of her deposition. That she further stated in her deposition that after deducting the sum of N474,999.99 already paid, the balance remaining will be N1,417,626.9 only which is the amount by which she was underpaid. That this piece of evidence was not disputed, contradicted or challenged by the defendant either in its pleadings or evidence before this Court, referring to Fari v. Federal Mortgage Finance Ltd [2002] All FWLR (Pt. 235) 27 at 44, Hassan v. Atany [2002] 15 NWLR (Pt. 770) 581 and Odebunmi v. Abdullahi [1997] (Pt. 489) 526. The claimant invited the Court to note that counsel for the defendant did not cross-examine the claimant on this piece of evidence, the implication of which is that the defendant has admitted that the claimant’s salary for three months is N1,892,628,87 and that after deducting what the defendant paid as per Exhibit C the balance stands at N1,417,626.9 only, which is the amount by which she was underpaid, referring to Njiokwuemeni v. Ochei [2004] 15 NWLR (Pt. 895) 196 at 227, Akinwumi v. Idowu [1980] 3 – 4 SC 108, Bello v. Eweka [1981] 1 SC 101; and MIA & Sons Ltd v. FHA [1991] 8 NWLR (Pt. 209) 295 as authority for the proposition that where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. The claimant accordingly urged the Court to hold that the claimant has established her entitlement to this relief and so same should be granted and all the submissions of counsel for the defendant on the issue should be discountenanced. Regarding the claim for N12,574,658.70 being the redundancy benefits due to the claimant or in the alternative the sum of N4,106,307.6, the claimant contended that based on the state of the pleadings and evidence before this Court, she is entitled to be awarded this relief as prayed. That it is trite in civil cases that the general burden of proof rests on the on the party who will lose if no evidence is led at all at the trial, referring to Ayogu v. Nnamani & ors [2005] 2 LRECN 55 at 75 – 76 and Chukwu v. Omeaku & ors [2008] 4 LRECN 164 at 187 as well as sections 131 – 133 of the Evidence Act 2011. The claimant accordingly invited the Court to examine the pleadings of the parties in order determine first, what the claimant should prove in order to be entitled to this relief, and second, whether there is any admission by the defendant which is capable of tilting this case one way or the other. To the claimant, by paragraph 30(a) and (b) of the further amended statement of facts establishing the cause of action, she averred that she is a beneficiary of under the collective agreement between the Nigerian Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). She also averred that her employer paid the dues for all staff for every month and then deducted the dues from the staff salary. In response, the defendant by paragraph 2 of its statement of defence denied these averments. Interestingly, that in paragraphs 21 and 22 of the statement of defence the defendant made certain concessions which affected the claimant’s claim for redundancy under the ASSBIFI agreement. The claimant accordingly reproduced the said paragraphs 21 (confirmed by paragraph 21 of the deposition of DW) and 22. To the claimant, in view of this concession or admission by the defendant, the duty before the Court is to ascertain whether the redundancy benefits, which defendant claimed it paid to the claimant was actually in line with the agreement reached with ASSBIFI. That the only live issue regarding the claimant’s entitlement to this head of relief is for this Court to ascertain from the evidence before it that what the defendant paid as redundancy benefits is in line with the said ASSBIFI agreement. Furthermore, that this concession or admission by the defendant in its pleadings has removed the case of the claimant from the ambit of the principles established in Gbadegesin v. Wema Bank Plc [2012] NLLR (Pt. 80) 274 NIC and Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90 NIC cited by the defendant. That in both cases, the defendant fiercely contested that the claimant was not a member of union and could not produce any credible evidence of membership. Also, in the said cases, there were no concessions or admission of the kind made by the defendant in the instant case. In the instant case, that though the defendant pleaded that the claimant was not a financial member of ASSBIFI, it nevertheless conceded that it paid the claimant in line with the agreement which it reached with ASSBIFI. To the claimant, the defendant is bound by its pleadings that it paid in line with the said ASSBIFI agreement. In the circumstances, the only live issue which this Court is to determine here is whether what the defendant claimed to have paid the claimant as the gratuity benefits, in actual fact, was in line with the said ASSBIFI agreement (Exhibit E). The claimant went on that DW stated in paragraph 11 of his deposition that the defendant paid gratuity benefits to the claimant, apparently referring to the ex-gratia payment which it paid by virtue of Exhibit C, the letter of March 19, 2010. That under cross-examination DW was unable to explain to this Court how the bank arrived at such payments. That DW also told this Court that the defendant’s gratuity scheme is as contained in the bank’s Staff Handbook (tendered as Exhibit D2). When he was referred to paragraph 4.6 of page 31 of the said Exhibit D2 which spoke of gratuity scheme for all staff but gave no details, he told this Court that the details can be obtained from the Human Resources Management Department just as stated by Exhibit D2. That this Court is invited to note that under cross-examination, DW did not have the details of the purported gratuity scheme of the bank, and none was placed before this Court. He was also unable to explain the basis for the ex-gratia payments it made to the claimant. It is clear from the evidence of DW, Exhibits B2 (her appointment letter of October 10, 2005) and D2 (the Staff Handbook) that there was no gratuity scheme for the staff of the defendant. To the claimant, the defendant ostensibly chose to pay its staff disengaged in 2009 “in line with the agreement reached with…ASSBIFI” because it has no gratuity scheme for its staff. That neither Exhibit B2, the claimant’s appointment letter of October 10, 2005 nor Exhibit D2, the Staff Handbook of the defendant contains the details of its alleged gratuity scheme, and none was produced before this Court. That it may well be that the reason why the defendant failed to place the details of the alleged gratuity scheme (that is, assuming that one in fact exits) is that if produced the contents would be unfavourable to the defendant, referring to section 167(d) of the Evidence Act 2011, Musa v. Yerima [1997] 7 NWLR (Pt. 511) 27 and Alibe v. Yaro [2002] 1 NWLR (Pt. 747) 238. The claimant continued that one fact which cannot be denied is that from the said paragraphs 21 and 22 of the statement of defence, the defendant conceded, quite clearly, that it paid the claimant full redundancy benefits in line with the agreement reached with ASSBIFI not minding that the claimant was not a member, as alleged by the defendant. The claimant then urged the Court to hold that the defendant is bound by its pleadings as afore-stated. That if as averred by the defendant it paid the claimant’s benefits in line with the ASSBIFI agreement, the onus is clearly on the defendant to prove the veracity of its assertion as pleaded, referring to Guinness (Nig) Plc v. Onegbedan [2012] 15 NWLR (Pt. 1322) 51 at 52 and Nsionu v. Nsionu [2011] 16 NWLR (Pt. 1274) 536 at 574. To the claimant she stated in her witness statement that what the defendant paid her as redundancy was made ex-gratia. That by Exhibit C, which speaks for itself, the defendant paid the claimant the sum of N474,999.99 in lieu of notice; what it referred to as “ex-gratia” of N474,999.99; 25% “enhanced ex-gratia” of N652,307.69; and another 75% of “enhanced ex-gratia” of N2,408,050.90. That under cross-examination, DW confirmed that these were the only disengagement benefits which defendant paid to the claimant. The claimant went on that she also stated in paragraph 31 of her witness statement on oath that these ex-gratia payments do not qualify as her redundancy/benefits. That “ex gratia” simply means something given voluntarily to a person as a gift, favour, or gesture of a goodwill rather than because it is owed. According to the Oxford Advance Learners Dictionary (International Student’s Edition) ex gratia is defined as something “given or done as a gift or favor, not because there is a legal duty to do it”. The claimant then submitted that all the ex-gratia payments of the kind paid by the defendant has no place either in the defendant’s Staff Handbook (tendered as Exhibit D2) or the terms of the claimant’s employment as contained in the defendant’s letter of appointment dated October 10, 2005 (Exhibit B2) or the said ASSBIFI agreement (Exhibit E) under which the defendant claimed to have paid the claimant. The claimant submitted further that these ex-gratia payments were made not out of any legal duty on the defendant but in appreciation of the claimant’s long years of effective service to the bank. The claimant, therefore, urged the Court to hold that the said ex gratia payments made to the claimant by the defendant are not the same as the gratuity scheme mentioned in Exhibit D2 and Exhibit B2 or the redundancy benefits under the ASSBIFI agreement (Exhibit E). To the claimant, she stated in her deposition that her redundancy benefit falls under Article 5 of Part 11 (Section 1) of the said ASSBIFI agreement which makes provision for staff that have served their employees for more than 5 years but less than 15 years, referring to paragraph 33 of her witness statement on oath. That she gave evidence that she was in the employment of the defendant for a period of 14 years and 11 months (1995 to December 18, 2009). The claimant went on that although the defendant claimed to have terminated the claimant’s employment in 2005, the same defendant gave the claimant a long service recognition award in January 2005 by its letter of January 31, 2005 (tendered as Exhibit F). That the letter of appointment of October 10, 2005 (Exhibit B2, the acceptance clause) treated the claimant’s appointment as a continuing employment. By Article 5(d) of the ASSBIFI agreement, the claimant is entitled to 14 weeks total emolument for each completed year of service. The same Article 5(d) defined total emolument as: basic salary, housing and transport allowances and lunch subsidy. That the defendant tendered Exhibits D1(a) to D1(j), and the claimant’s pay-slip for July 2009 contains the claimant’s emoluments as defined by Article 5. That having put in a long service of 14 years and 11 months in the defendant’s bank, the claimant stated further that her redundancy benefit under the said Article 5 of the ASSBIFI agreement amounts to the sum of N16,486,992.00 only. After backing out of the pre-merger gratuity of N3,912,333.30, which defendant admitted it paid the claimant in 2005, the balance is N12,574,658,70 only. It is the submission of the claimant that she has proved by credible evidence that what defendant paid as her redundancy benefit was not in line with the agreement reached with ASSBIFI, and was far below what she is entitled to be paid. She further submitted that what the claimant is entitled to be paid as redundancy benefit under the ASSBIFI agreement is N12,574,658,70 only. That in the absence of any evidence from the defendant which successfully challenged, controverted or debunked this piece of evidence, this Court has a duty to accept as true, correct and credible, the evidence of the claimant above regarding the amount she is entitled to be paid as redundancy benefit under the ASSBIFI agreement, referring to Fari v. Federal Mortgage Finance Ltd (supra) and Ijebu Ode local Government v. Adedeji Balogun & Co. Ltd (supra). However, that if this Court holds that the claimant’s employment was terminated in 2005, and consequently finds that the claimant has been in the service of the defendant from November 1, 2005 (referring to Exhibit C) to December 18, 2009 (referring to Exhibit D), then the defendant has served for a period of 4 (four) years but less than 5 (five) years; in which case the defendant falls under a staff that should be paid redundancy benefit under Article 5(i) of the ASSBIFI agreement. To the claimant, by the amended General Form of Complaint and the statement of facts, the claimant prayed for the sum of N12,574,658.70 being the balance of the redundancy benefits due to her, and in the alternative, the sum of N4,106,307.6. That it is trite law that where the principal claim fails, a Court of law is at liberty to consider the alternative claim, and award same if proved, referring to Njiokwuemeni v. Ochei & ors [2004] 15 NWLR (Pt. 895) 196 at 238. That in proof of her entitlement to this alternative claim, the claimant stated in her deposition that for a staff who has put in less than 5 years service with the defendant the same Article 5(i) of the ASSBIFI agreement provides for her redundancy. The claimant stated that her redundancy benefit for one who has put up less than 5 years service is N4,106,307.6 only, referring to paragraph 36 of her deposition. That if the Court finds that she took up new appointment after the merger, then the claimant served from 2005 to 2009, which is less than 5 years. It is her submission that she as per her alternative claim is entitled to the sum of N4,106,307.6 only as her redundancy benefit, urging the Court to so hold. In conclusion, the claimant urged the Court to hold that she has proved her case as required by law and is, therefore, entitled to all her reliefs. I heard learned counsel and considered all the processes filed in this suit. The issue before the Court is simply whether the claimant is entitled to the reliefs claimed. There is no dispute between the parties as to the fact of the employment relation between the claimant and the defendant. So in addressing the case of the claimant both parties simply took and addressed each relief separately. Central, however, to the claims of the claimant is the status of the gratuity benefits paid to her by the defendant. The claimant had started with the Nigerian Intercontinental Bank Ltd in 1995 (see Exhibit A), which bank later became Intercontinental Bank Plc. In 2004 by Exhibit B1 she was appointed Relationship Manager (Consumer Banking Sector) – Cadastral Branch; she was later vide Exhibit B2 dated 10th October 2005 appointed Relationship Manager on Assistant Manager grade with effect from November 1, 2005. This bank later merged with three other banks to have today’s Access Bank Plc. In 2007, however, the claimant’s appointment was terminated and her gratuity was calculated to be N3,912,333.30 as at 31st October 2005. In other words that the due date of payment of this gratuity was 31st October 2005. For this state of facts, the claimant is claiming as per relief a) interest at the rate of 15% for the period November 2005 to 7th August 2007 when the bank calculated the said gratuity benefits due to the claimant. Now, when the claimant’s appointment was terminated vide an internal memo dated 02/08/2007, it was made effective from 1st November 2005. I must note here that the internal memo referred to here by the claimant is not signed and so was withdrawn at the trial. Yet the claimant alluded to it throughout her submissions as if the said internal memo was admitted in evidence. To the claimant, a fresh appointment was offered her and her gratuity was calculated and put at N3,912,333.30. But instead of paying her this amount of money, she was given two options by the same internal memo of 02/08/2007 of investment of the said sum: to either buy the defendant’s shares or put it in a ‘tenored’ deposit with Intercontinental Bank Plc. According to the defendant here, the claimant exercised the first option voluntarily (the claimant argues that this not voluntary). The value of the shares bought under the second option fell and the claimant made a loss of N6,620,856.00. This is what the claimant is claiming as relief b). The problem here is that by Edilco (Nig.) Ltd v. UBA Plc [2000] FWLR (Pt. 21) 729, an unsigned but certified true copy of a document will not be conferred with any evidential value. See also, Esther Ogbodu v. Global Fleet Oil & Gas Ltd & anor unreported Suit No. NICN/LA/32/2012, the judgment of which was delivered on 5th December 2014, where this Court declined to give any evidential value to a number of unsigned documents. Given these authorities, therefore, the internal memo of 02/08/2007 has no evidential value, yet both the claimant and the defendant proceeded in their submissions as to the state of facts enunciated in the said internal memo, facts essentially admitted by the defendant in its amended statement of defence. I shall accordingly proceed in this judgment, not on the basis of the internal memo of 02/08/2007 but on the basis of the admitted facts of the defendant in its statement of defence. For instance, it is the admission of the defendant that the services of all staff of the four banks that merged to form today’s Access Bank Plc were terminated on 31/10/2005 and a new contract of employment was issued to all (retained/fresh) employees of the Mega Bank with effect from 1/11/2005. It is also the admission of the defendant that it calculated the gratuity benefits due to the claimant and which was her actual entitlement under the gratuity scheme for all staff; and for which she was advised accordingly although this advice could not have been before the defendant’s Board approval. It is equally the admission of the defendant that it offered two options to staff: investing in the defendant’s shares or tenured deposits. It is the case of the defendant that the claimant voluntarily opted for investing in the defendant’s shares. It is also the case of the defendant that gratuity can only be accessible by staff on exit from the bank and the claimant could not request for the sale of the investment until she leaves the bank. It is further the case of the defendant that the claimant was not entitled to gratuity whilst she is still in the employment of the bank and that this position was made clear to the claimant by the defendant’s management. Like I indicated earlier, I shall proceed as per the admissions of the defendant given that the internal memo of 02/08/2007 is of no evidential value. From this state of facts, the first issue is whether the claimant is entitled to relief a), which is for N743,182.63 the balance of the interest which accrues from the “gratuity benefits” of N3,912,333.30 at the rate of 15% per annum from November 2005 to 7th August 2007, after deducting claimant’s indebtedness. There is no argument between the parties that the claimant’s gratuity in question was due as at 31st October 2005 but the claimant was told of this only on 7th August 2007. The key argument of the defendant here, however, is that the claimant is not entitled to draw the said amount of gratuity given that she was still a staff, having been offered a fresh appointment, and so the question of drawing an interest on the amount should not arise. In fact, it is the specific argument of the defendant that the claimant is not entitled to have the gratuity investment while still in its employment. The defendant did not, however, allude to any authority for this argument. I find something illogical in the position of the defendant. The defendant admitted that the employees had their employment terminated and fresh appointments issued to “all (retained/fresh) employees of the Mega Bank”. Common sense and good industrial relations dictate that if the defendant voluntarily chose the part of terminating an employee’s appointment and then issuing such an employee with a fresh appointment, then to close the old employment relationship and start the new one, the employee should appropriately be compensated by being given his/her entitlements as per the old relationship, which the defendant unilaterally and in its wisdom decided to bring to an end. The argument of the defendant that the claimant cannot draw such a gratuity benefit because she was still a staff of the defendant beats all sense of reasoning. If still being a staff was such a big or fantastic issue, why then did the defendant bring the employment relationship to an end in the first place? This scenario is analogous to the aphorism of beating someone and denying him/her of the right to cry. I do not find any merit in the argument of the defendant. Common sense accordingly demands that if the gratuity of the claimant was due in 2005 but she was only told of it in 2007 (and at that not even given it), then whatever interest such a sum attracted should be given to the claimant. I accordingly find merit in the claimant’s case for the sum of N743,182.63, being the balance of the interest which accrued from the “gratuity benefits” of N3,912,333.30 at the rate of 15% per annum from November 2005 to 7th August 2007; and I so find and hold. Flowing from all of the above is the claimant’s claim for N6,620,856.00 being the value of claimant’s shares in the defendant, which is relief b). The case of the claimant here is that because the defendant did not allow her access to the 106,046 units of Intercontinental Bank shares and so she missed the opportunity of selling same and making a profit the minimum of which would have been the N6,620,856.00 she is presently praying for as relief b), this Court should appropriately order that the said sum be paid to her. The argument of the defendant on the other hand is that the claimant voluntarily bought these shares and so she cannot complain of heir fall in value. In any event, that the defendant is not even the body holding the shares (to which the claimant replied that the managing firm of the shares is controlled by the Chairman of the defendant bank). It is the further argument of the defendant that the gratuity investment options given to the claimant was either she invests her gratuity in stock (as the stock market was on the rise as at then and which she could also take advantage of) or the claimant deposits her gratuity in an interest yielding account with the defendant as the bank is offering good interest rates on tenured deposits. These were the investment options available to the claimant and other exiting staff of the bank who chose to still be in the employment of the defendant. To the defendant, these options were given to them without any ulterior motive whatsoever but in the best interest of their staff. Here, I must note that the defendant played the paternalistic role of deciding for staff including the claimant what is best for them. Yet, the defendant would also argue that it is important for it to submit that the claimant is not qualified to access her gratuity because she was still a staff of the defendant as at the time in question. However, that the defendant in its wisdom did not want to retain the gratuity benefit due to its existing staff, deemed it fit to invest the same for them in order for it to yield interest, while the claimant continued her employment with the defendant. Was the defendant not playing God here? I think so. The issue for resolution here is, therefore, whether the defendant unduly influenced the claimant to purchase the shares in question and for which the defendant must be responsible when their value accordingly fell. I held earlier that it was wrong of the defendant to have denied the claimant access to her pre-merger gratuity benefits. I also held that it is wrong of the defendant to have given the claimant options as to what to do with the pre-merger gratuity benefits. The defendant argues that the claimant voluntarily opted for share purchase; yet in another vein the defendant argued that it is the policy of the defendant bank that the claimant could not have drawn on the pre-merger gratuity benefit. What kind of voluntary action is it that an employer tells an employee that I cannot give you your benefit but you may invest it by either buying my shares or putting it in a tenured deposit with me? In Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, this Court noted that the balance of bargaining power in the relationship between an employer and an employee tilts in favour of the employer. So when the defendant talks of voluntary action of the claimant in the instant case, it does appear to the defendant that the notion of involuntary action must surely be only when the defendant carries a cane or gun on the claimant. Accordingly, and rightly so to my mind, the claimant urged the Court to hold that the issue is not whether the claimant chose the option of investing in the shares of the defendant but first, whether it is lawful for the defendant to inform without in fact paying the claimant her gratuity benefits; second, whether it is lawful for the defendant to impose on the claimant how and where to invest her gratuity benefit; and third, whether it is lawful for the defendant to deny the claimant access or use of such gratuity investment as done in this suit. To my mind then, the conduct of the defendant in not paying the claimant her due gratuity benefit; dictating for her how and where to invest her computed gratuity benefit and denying the claimant of access or the use of the said gratuity benefit as was done in this case is not only illegal but it also amounts to unfair labour practice which should not be condoned by this Court. I dare say that such acts are an affront on public policy. In Mr. Olabode Ogunyale & ors v. Globacom Nigeria Ltd unreported Suit No. NIC/LA30/2008 the judgment of which was delivered on 13th December 2012, this Court in a similar scenario held as follows – Also unfair labour practice is the respondent compelling the claimants to bank with Equatorial Trust Bank, a Bank that the respondent has an interest in, by paying the claimants’ salaries into accounts they were compelled to operate with the Bank since the claimants were not left with any option as to the choice of a Bank. In like manner, insisting on the claimant investing only in the defendant vide the only two options given is an unfair labour practice that this Court should not condone; and I so find and hold. The claimant had argued that the damages which she suffered did not arise because the shares purchased with the gratuity benefits do not “reside in the bank” or were otherwise being managed by a broker different from the defendant. Instead, the damages arose out of the several illegalities done by the defendant relating to the said gratuity benefits as indicated earlier. I agree with the claimant. As such, the relief for the sum of N6,620,856.00 being the value of the claimant’s shares in the stock of the defendant is sustainable against the defendant who did not only impose on the claimant on how and where to invest her gratuity but also illegally and unfairly denied her access to the said investment. In open Court, I had asked DW who will bear the responsibility for the investment in question since the claimant cannot access the investment. The answer I got was that the claimant bears the risk. As argued by the claimant, and I agree with her, from a risk perspective, the bank unduly exposed the claimant as she was made to put all her eggs in one basket. In Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454, this Court, citing the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, explained that the primary task of this Court is to adjudicate on the disputes between employers and their workmen and in the course of such adjudication determine the ‘rights’ and ‘wrong’ of the claim made; and in so doing the Court is undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that the Court’s jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. (It should be noted that under section 254C(1)(f) of the 1999 Constitution, as amended, this Court has jurisdiction over civil causes and matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters). This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. It is accordingly my holding that relief b) has merit and the claimant has made out a case for it; and I so order. Relief c) is for N1,417,626.9 being the underpayment by the defendant with respect to sums paid in lieu of notice. Exhibit C dated 19th March 2010 put as part of the claimant’s entitlement N474,999.99 as payment in lieu of notice. This means that the necessary notice period was not given the claimant. The case of the claimant is that her employment was terminated in December 18, 2009 without any notice. See Exhibit D dated 18th December 2009, which states that the claimant’s services will no longer be required with immediate effect; and in accordance with the terms of her employment she will be paid three months’ basic salary in lieu of notice. Exhibit D1(j), the pay-slip of the claimant for July 2009 puts the claimant’s basic salary for that month at N138,505.75. If this sum is multiplied by 3, what we have is N415,517.25. Exhibit C, however, put the payment in lieu of notice to be N474,999.99, a sum higher that the basic salary talked of in Exhibit D. Now, clause 1.7 of Exhibit D2, the Staff Handbook, provides that employees terminated will be entitled to inter alia salary in lieu of notice (based on the contract of employment). No contract of employment was frontloaded or tendered in order to determine whether the salary talked of here is basic salary or gross salary. However, the claimant in her evidence in support of her pleadings deposed that her salary for three months amounted to N1,892,628.87, referring to paragraph 31 of her deposition, and that after deducting the sum of N474,999.99 already paid, the balance remaining will be N1,417,626.9 only which is the amount by which she was underpaid. To the claimant, this piece of evidence was not disputed, contradicted or challenged by the defendant either in its pleadings or evidence before this Court. The claimant also invited the Court to note that counsel for the defendant did not cross-examine the claimant on this piece of evidence, the implication of which is that the defendant has admitted that the claimant’s salary for three months is N1,892,628,87 and that after deducting what the defendant paid as per Exhibit C the balance stands at N1,417,626.9 only, which is the amount by which she was underpaid. I looked at the defendant’s statement of defence and witness deposition on oath and I did not find any direct denial of the averments of the claimant. Accordingly, the defendant is deemed to have admitted the averments; and I so find and hold. This means that the claimant has made out her case for relief c); and I so order. This leaves out relief d), which is for N12,514,658.70 being the balance of the redundancy benefits due to the claimant or in the alternative the sum of N4,106,307.6. This relief is based on the collective agreement entered into between NEABIAI and ASSBIFI (Exhibit E). The argument of the defendant is that although the claimant stated that she is a member of ASSBIFI, she did not show proof of that membership of ASSBIFI and so she cannot derive the benefit of Exhibit E, the collective agreement. In response, the claimant cited paragraphs 21 and 22 of the statement of defence (as well as paragraph 21 of the deposition of DW) and then submitted that thereby the defendant made certain concessions which affected the claimant’s claim for redundancy under the collective agreement. Paragraph 21 of the statement of defence provides as follows – The Redundancy Benefit paid to all disengaged staff of the defendant in December 2009 was in line with the agreement reached with Association of Senior Staff of Banks and Other Financial Institutions (ASSBIFI) which is the officially recognized union or body representing employees of financial institutions. Paragraph 22 then provides that – The defendant avers the claimant was paid her full redundancy benefits as agreed by ASSBIFI even though she was never a financial member of the said ASSBIFI because she...never paid her check-off dues and thus not qualified as a beneficiary under the collective agreement of the association which negatives the claimant’s averments in paragraphs 30 and 31 of her statement of facts. Now, from these provisions the claimant contended that the defendant conceded or admitted that it paid the redundancy benefit in line with the collective agreement; as such the duty of the Court is to ascertain whether the redundancy benefits was actually in line with the agreement reached with ASSBIFI. From this too, that the only live issue regarding the claimant’s entitlement to this head of relief is for this Court to ascertain from the evidence before it that what the defendant paid as redundancy benefits is in line with the said collective agreement. On this score, the claimant went on to distinguish the cases of Gbadegesin v. Wema Bank Plc [2012] NLLR (Pt. 80) 274 NIC and Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90 NIC cited by the defendant. To the claimant, though the defendant pleaded that she was not a financial member of ASSBIFI, it nevertheless conceded that it paid the claimant in line with the agreement which it reached with ASSBIFI. This to the claimant suffices to entitle her to payment for redundancy under the collective agreement and so it is for the Court to determine whether what the defendant claimed to have paid the claimant as the gratuity benefits was, in actual fact, in line with the said collective agreement. I think the claimant misunderstands the rule sought to be applied by the defendant here. The rule that a party seeking to rely on a collective agreement must show evidence of membership of the trade union that entered into the collective agreement is one analogous to the privity rule in the general law of contract. Membership of a trade union carries with it benefits and burdens. One such burden is the payment of check-off dues. It is in this sense that Habu v. NUT Taraba State [2005] 4 FWLR (Pt. 283) 646 held that the deduction from salaries and wages as check-off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker. A person who refuses to join a trade union and so does not pay check-off dues cannot in the end seek to rely on it for a benefit. As a senior staff, the law is (and the defendant cited a number of authorities in that regard) that the employee is not assumed to be a member of the trade union. He/she has to “opt in”, individually and in writing (unlike junior staff who are deemed members and so can only “opt out”; for here, deduction of check-off dues is not based on membership but on eligibility – see Udoh v. OHMB [1990] 4 NWLR (Pt. 142) 52). The claimant in the instant case is a senior staff. She must show membership of ASSBIFI in order to benefit from Exhibit E, the collective agreement. That the defendant made payments to her on the basis of Exhibit E does not mean that thereby she automatically became a member of ASSBIFI as to be entitled to have the benefits from Exhibit E enforced by this Court. She still has to show membership of ASSBIFI in order to be so entitled. In other words, payment under a collective agreement to one who is not a member of the trade union which signed the collective agreement does not and cannot thereby (and by that fact alone) legitimize the non-member as one who can benefit or enforce a benefit from the collective agreement. In fact, where the person in question does not show evidence of membership of the trade union in question, that the fact of unionism is pleaded and not denied is not sufficient to clothe the toga of membership of the trade union and hence entitlement to benefits from the collective agreement entered into by the trade union. In other words, a deemed admission or even a direct admission itself in pleadings does not and cannot confer membership of a trade union. This is because the party making or being deemed to make the admission is not competent to and so cannot bequeath membership of a trade union on an employee. The issue whether or not an employee is a member of a trade union is essentially one of law given the current state of our trade union law; and so it cannot simply, without more, be bestowed by a third party such as the defendant in this suit. The issue here is that for non-members of a trade union, the collective agreement in question is not enforceable against them. As such, a party or parties in a suit cannot by admission make enforceable that which is unenforceable ab initio. In the eyes of the law a non-member cannot enforce to his benefit a collective agreement entered into by a trade union that he is not a member of; neither can he have it enforced against him. Even an admission by a defendant as the claimant argues in the instant case cannot thereby give legitimacy to a non-member. Actual proof of membership is the key to recovery under a collective agreement. Proof of that membership of a trade union has to be by direct documentary evidence. It is in this sense that Habu v. NUT Taraba State must be understood when it held that the deduction of check-off dues from salaries and wages of a worker and the remittance of same to a trade union is an incidence of membership of the worker. Even at this, the worker must by direct documentary evidence prove that such deduction of check-off dues and remittance of same to the trade union was done if his fact of membership of the trade union is to be held as established by a Court of law. In the instant case, therefore, as the claimant did not prove her membership of ASSBIFI, she cannot rely on it to claim redundancy. Even the evidence of the claimant under cross-examination as to her membership of ASSBIFI is not sufficient to so prove her membership. In paragraph 37 of her sworn deposition, the claimant had stated that she is a beneficiary of the collective agreement. Under cross-examination, the claimant testified that she paid her membership dues. She went on that the bank paid check-off dues in bulk for all members of ASSBIFI; and that the bank deducted check-off dues at source, but the deduction at source was not reflected on employees’ pay-slips. However, the claimant continued that she does not know how much the bank was deducting as check-off dues. She acknowledged that she did not advise her employer that she is a member of ASSBIFI; and that it will surprise her to know that no check-off were deducted from her salary by her employer. I indicated that earlier that a senior staff must individually and in writing opt to join a trade union before a valid membership of the trade union can be said to have been established. See CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 NIC. The claimant in the instant case, as senior staff, acknowledged that she did not advise her employer that she was a member of ASSBIFI. On what (legal) basis then did the defendant make the deduction of check-off dues that the claimant claims was made? I reiterate that the claimant failed to prove her membership of ASSBIFI in order to have Exhibit E enforced in her favour. Exhibit E, the collective agreement upon which the claimant accordingly claims redundancy payment, remains unenforceable as against her; and I so find and hold. The claim for redundancy, therefore, fails and is hereby dismissed. For the avoidance of doubt, and for all the reasons given, the claimant’s claims succeed in part and only to the extent of the under-mentioned orders. The defendant is accordingly ordered to pay to the claimant within 30 days of this judgment the following sums of money – 1. N743,182.63 the balance of the interest which accrues from the “gratuity benefits” of N3,912,333.30 at the rate of 15% per annum from November 2005 to August 7, 2007, after deducting the claimant’s indebtedness. 2. N6,620,856.00 being the value of the claimant’s shares in the defendant. 3. N1,417,626.90 being the underpayment by the defendant with respect to sums paid in lieu of notice. 4. Failure to pay any or all of these sums of money as ordered shall attract interest at the rate of 10% per annum. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip