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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE O.O. OYEWUMI DATED 30th OF JANUARY, 2015 SUIT NO: NICN/LA/244/2011 BETWEEN: UDEAGHA EGBE CLAIMANT AND 1 UNION BANK PLC 2. UNION HOMES SAVINGS AND LOANS PLC DEFENDANTS REPRESENTATION J. IKHELOA for the Claimant F.O. OGUNGBEMI with A. ONOJA and ODUNOLA JEGEDE for the 1st Defendant, DIRISU A, for the 2nd defendant. JUDGMENT By a General Form of Complaint filed by the claimant on the 23rd December, 2011 against the defendants wherein he claims the following; (a) The Claimant is still in the permanent and pensionable service of the 2nd Defendant. (b) The Claimant's service with the 1st and 2nd Defendants which is a permanent, pensionable and continuous contract of service commenced on the 19th of January, 1976 remains valid and subsists. (c) The 2nd Defendant's letter to the Claimant dated 30th December, 2008, which is the Claimant's exhibit 10, did not bring to an effectual, valid and lawful end the Claimant's contract of service with the 2nd Defendant and therefore the 2nd Defendant's purported retirement of the Claimant on 30th of December, 2008 is invalid, null, void and of no legal effect. (d) The 1st and 2nd Defendant's shall jointly and severally compute and pay the Claimant's gratuity and pension entitlements (from their legacy pension funds) in the continuous service of both the 1st and 2nd Defendants based on the following elements: i) the Claimant's years of service to be determined with the date of the Claimant's effectual, valid and lawful retirement from the service of the 2nd Defendant less the Claimant's date of commencement of service with the 1st Defendant on 19th January, 1976; ii) Multiplied with - The Claimant's total annual terminal emoluments (as at the date of the Claimant's effectual and lawful retirement from the service of the 2nd Defendant); and The gratuity and pension percentages as in the Pension Reform Act, 2004 table or the 2nd Defendant's Staff Provident Fund Gratuity Pension Scheme and Trust Deed Rules (SPF/GPS/TDR) table for gratuity and pension applicable to the Claimant's years of service as determined in paragraph (l) (d)(i) above. (e) The Defendants payments of gratuity and pension (from their legacy pension funds) to the Claimant (in December, 1998 and February, 2009) prior to the date of Claimant's lawful, valid and effectual retirement from the 2nd Defendant's service are at best part payments of the Claimant's full gratuity and pension. (f) The 1st Defendant is the 2nd Defendant's agent for the appointment of the Claimant in the 2nd Defendant's service. (g) The 2nd Defendant has an obligation to provide full medical care for the Claimant and his spouse on retirement which includes the 2nd Defendant's payment of annual overseas medical allowance to the Claimant. 2. The 2nd Defendant in fulfillment of its contractual obligations shall pay to the Claimant's entitlements for year 2009 and for subsequent years until the valid and lawful date of the Claimant's retirement from the 2nd Defendant's service as follows: (a) Total annual emoluments of #12,406,820.00 as at 30th December, 2008 plus annual increments in the Claimant's basic salary due on 1st January, 2009 and on 1st January of subsequent years. (b) Annual overseas medical allowance of #5,536,800.00 (which is the naira equivalent of S$34,605 converted at US$1=#160) plus airfare for return business class flight ticket Lagos-London-Lagos as at the date of payment of the allowance. (c) Pay cash once in three years being warm clothing allowance of US$3,045, for each of the two periods 2005-2007 and 2008-2011 which is a total of US$6,090 converted at US$1=#160 which equals #974,400.00 and subsequent three yearly periods. (d) The 2nd Defendant shall refund to the Claimant the upfront Housing, Furniture and Education allowances with a total figure of #5,396,440.79 paid by the 2nd Defendant to the Claimant prior to 30th December, 2008 which the 2nd Defendant on 2nd January, 2009 unilaterally converted to loan and charges interest there-on. 3) The 2nd Defendant in fulfillment of its contractual and statutory obligations shall perform as follows: (a) Purchase and deliver (in arrears) one new Honda Accord car and one new Toyota Prado Sports Utility Vehicle (SUV) car for the Claimant's official and personal use and which were due on each of 1st June, 2004, 1st June, 2008 and on subsequent fourth year anniversary dates until the Claimant's valid and lawful retirement from the 2nd Defendant's service. (b) Transfer the ownership of one Honda Accord car and one Toyota Prado Sports Utility Vehicle (SUV) car on 31st May, 2008 (arising from the cars the 2nd Defendant ought to purchase and deliver to the Claimant on 1st June, 2004 as in 5(a) above) and on subsequent fourth year anniversary dates until the Claimant's valid and lawful retirement from the 2nd Defendant's service. (c) Deem (i) The Honda Car with registration number UH 43 SMK which the 2nd Defendant purchased and delivered to the Claimant in year 2002 and its ownership was transferred to the Claimant in year 2006; and (ii) The Toyota Prado (SUV) car with registration number EU 43 SMK which the 2nd Defendant purchased and delivered to the Claimant in February 2008 and its ownership was transferred to the Claimant in June 2009; (iii) As the 2nd Defendant's fulfillment (in arrears) of its obligations to purchase and deliver the two cars to the Claimant on the due date of 1st June, 2000 and the transfer of the ownership of the cars to the Claimant on the due date of 31st May, 2004. (d) The 2nd Defendant to purchase and deliver (in arrears) to the Claimant one 27kva diesel operated electricity generator with an estimated market price of #1,980,000.00 due as at July, 2006. (e) With effect from 1st January, 2009 pay cash at #10,000 per week which equals #130,000 per quarter and #520,000 per annum in lieu of the 2nd Defendant's refusal and failure to provide the Claimant's entitlement to petrol for the running of the two cars the 2nd Defendant ought to purchase and deliver to the Claimant. (f) With effect from 1st January, 2009 pay cash at #450,000 per quarter for the cost of 3,000 liters of diesel or #1,800.000 per annum being cost of 12,000 liters of diesel for the running of the electricity generator at the Claimant's residence. (g) With effect from 1st January, 2009 pay cash equal to the 2nd Defendant's record of expenses for the purchase of daily newspapers, monthly expenses for beverages, tea, milk, soft drinks, biscuits and similar products incurred for persons occupying the position of Deputy General Managers in the 2nd Defendant's service. 4) The 2nd Defendant in fulfillment of its contractual and statutory obligations shall issue, remit, refund and pay as follows: a) With effect from 1st January, 2009 until the valid date of the Claimant's retirement from the 2nd Defendant's service remit the arrears of the Claimant's monthly contributions into the Claimant's Retirement Savings Account with the Claimant's Pension Fund Administrator (PFA). b) Pay to the Claimant his entitlement to the balance of his personal pension account contributions which is managed by the 2nd Defendant for the period 1st September, 1994 to 31st December 2008; (c) Issue and deliver to the Claimant, the statement of accounts of the Claimant's personal pension account and the Claimant's legacy pension account with the details of the loan repayment deductions and rate of interest charged there-on from 1st January, 2009. 5) The 1st and 2nd Defendants in fulfillment of their contractual and statutory obligations shall solely or jointly and severally grant and pay as follows: a) The 1st Defendant shall; i) Grant the Claimant's entitlement to outstanding 5 (five) working days leave or holidays for year 1993; and ii) pay the Claimant's entitlement to total emoluments for the outstanding five (5) working days or leave days period of year 1993; b) The 1st and 2nd Defendants shall jointly and severally: i) Grant the Claimant's entitlement to outstanding 38(thirty eight) working days leave or holidays for year 1994; ii) pay the Claimant's entitlement to year 1994 leave allowance at 16% of the Claimant's annual basic salary as at the date of payment; and iii) Pay the Claimant's total emoluments for the leave period of year 1994. (c) The 2nd Defendant shall: i) grant the Claimant's entitlement to outstanding 20(twenty) working days leave or holidays for year 2008 and subsequent years leave days until the valid year of the Claimant's retirement from the 2nd Defendant's service; and ii) Pay the Claimant's total emoluments for the outstanding leave period of year 2008 and subsequent years leave days until the valid date of the Claimant's retirement from the 2nd Defendant's service. 6) The 1st and 2nd Defendants in fulfillment of their contractual and statutory obligations shall jointly and severally measure and pay the Claimant's entitlement to gratuity and pension based on Claimant's continuous years of service with the 1st and 2nd Defendants which commenced on 19th January, 1976 and which shall terminate on the valid and lawful date of the Claimant's retirement from the 2nd Defendant's service and the provisions of the 2nd Defendant's SPF/GPS/TDR. 7) The 2nd Defendant shall pay interest as follows: a) Pre-Judgment Interest: i) Interest based on equitable grounds at 21% per annum for the claims in paragraphs 2, 3(d) and (e) and 4 (b)above. ii) Interest based on statutory grounds as in the Pension Reform Act 2004 at 2.5% per month for the claims in paragraph 4(a) above. iii) Post Judgment Interest: At 18% per annum for items 1-6 above from the date of judgment till the date of eventual payment. 8) The Claimant is entitled to costs for the institution and prosecution of this suit. It is the facts as presented by the Claimant that he was employed in the permanent and pensionable service of the 1st Defendant on 19th January, 1976. The 1st Defendant was the agent of the 2nd Defendant for the appointment of the Claimant in the 2nd Defendant's service. The 1st Defendant in the letter to the Claimant dated 24th February, 1994 with the 2nd defendant’s name typed in offered to the Claimant an appointment to the permanent and pensionable position of Assistant General Manager (AGM) (Banking Operations) in the 2nd Defendant's service. The terms of appointment of the Claimant in the 2nd Defendant's service included among others that the Claimant's pension scheme is deemed continuous. The Claimant was advised vide a letter dated 24th March, 1994 to resume in the 2nd Defendant's service on 5th April, 1994. The Claimant did not resume in the 2nd Defendant's service on 5th April, 1994 because the 1st Defendant did not release the Claimant from its service. The 1st defendant vide a letter dated 18th April, 1994, released the Claimant from its service to resume with the 2nd Defendant on 25th April, 1994. The terms of the 1st Defendant's letter to the Claimant dated 25th April, 1994 above were as follows: a) That the bank's management has agreed that you (the Claimant) should be released on 25th April, 1994 to Union Homes Limited (the 2nd Defendant). b) Consequently, you (the Claimant) are requested to tender your (the Claimant) resignation letter to that effect. c) That the bank is however aware that you (the Claimant) will carry on with your (the Claimant's) years of service from Union Bank (the 1st Defendant) to Union Homes (the 2nd Defendant). d) That you (the Claimant) should therefore tender your resignation …….... in your line. e) That we (1st Defendant's SME/NERFUND Unit) are by a copy of this letter taken up the issue of your (the Claimant's) outstanding leave with its Human Resources Department (HRD) for their directives. Sequel to the above, the 1st Defendant's inter-departmental letter from its SME/NERFUND Department to its Human Resources Department (HRD) provided the details of the Claimant's outstanding leave days with two alternative recommendations as follows: a) Mr. Egbe (the Claimant) has arrears of 5 working days for 1993 and he is also entitled to the 1994 leave on pro rata basis having worked for four months in the year. b) Please let us know if we can now grant him the leave here or whether it will be worked as terminal leave from your end, The claimant averred that the 1st Defendant Human Resources Department's vide a letter to its SME/NERFUND Unit dated 8th April, 1994 with copy to the 2nd Defendant's Protem General Manager stated that: “………………..we are aware that Mr. Egbe will carry on his years of service from Union Bank to Union Homes, but we have to serve him out of Union Bank's payroll". The Claimant subsequently resumed in the service of the 2nd Defendant on 25th April, 1994 and with his letter of resignation from the 1st Defendant's service in the letter to the 1st Defendant dated 29th April, 1994. He stated that due to the pressure from and directive of the then Managing Director/Chief Executive of the 2nd Defendant wrote and delivered to the 1st Defendant through the 2nd Defendant the letters dated 7th May, 1997 and 5th November, 1998, with demand for the 1st Defendant to pay his gratuity. He averred that the 2nd Defendant with effect from 1st May, 1998 promoted him from the permanent and pensionable position of Assistant General Manager to the permanent and pensionable position of Deputy General Manager (DGM) and occupied the office from 1st May, 1998 to date. The 2nd Defendant's Board of Directors approved Staff emoluments review in year 2000 which took effect from 1st June, 2000 as amended in years 2005 and 2007 Staff emoluments reviews, among others approved that the 2nd Defendant shall pay, purchase and deliver, transfer ownership and provide the Claimant with the following entitlements: (1)(a) The 2nd Defendant shall provide free medical services in Nigeria for the Claimant, his spouse and children and pay to the Claimant annual overseas medical check-up allowance denominated in United States of America Dollars (US Dollar) and to be converted to naira at the prevailing exchange rate between the US Dollar and the naira as at the date of payment of the allowance which is usually paid between 2nd January and 31st March of each year. (b)The 2nd Defendant has since 1st January, 2009 refused and failed to provide medical service for the Claimant's children and to pay the Claimant's entitlement to annual overseas medical check-up allowance. (2) (a) The 2nd Defendant with effect from 1st June, 2000 shall purchase and deliver one new Honda Accord and one new Toyota Prado Sports Utility Vehicle (SUV) cars to the Claimant for the Claimant's official and personal use and subsequent purchase and deliver two new cars of the same brand every four years. The 2nd Defendant also has the obligation to purchase and pay for the petrol utilized for the running of the cars and to bear the expenses for the regular maintenance of the cars. (b)The 2nd Defendant shall fully amortize the new Honda Accord and Toyota Prado SUV cars over a continuous four years period with effect from the dates of the purchase of the cars, which initially ended on 31st May, 2004 and on subsequent four year dates, which for the second batch of one new Honda Accord and one new Toyota Prado SUV cars ended on 31st May, 2008. (c) The 2nd Defendant shall as at the date of the full amortization of the cars over four years (which initially fell on 31st May 2004 and secondly on 31st May, 2008) transfer the ownership of the two cars to the Claimant without any payments by the Claimant. 3) The 2nd Defendant shall provide benefits in kind consisting as follows: (a) daily newspapers, beverages, soft drinks, tea and biscuits; (b) Purchase, install and maintain electricity generating set; (c) to purchase and supply of diesel at 3,000 liters par quarter for the Claimant's domestic electricity power generation; and (c) purchase and supply of new electricity generator every six years. 4) The 2nd Defendant with effect from year 2000 shall purchase and deliver one 27kva Perkins electricity generator to the Claimant for his use at his residence. The 2nd Defendant purchased and paid for the diesel used in running the electricity generator and paid the expenses incurred for its maintenance from year 2000 to 30th December, 2008. The 2nd Defendant's Executive Management between 1st June, 2000 and 30th June, 2002 approved year 2000 Staff emoluments review as amended in the 2nd Defendant's years 2005 and 2007 Staff emoluments reviews and refused to deliver to the Claimant for the Claimant's use. The Board approved two new cars. The 2nd Defendant's Executive Management in July, 2002, delivered one Honda Accord car with registration no: UH 43 SMK to the Claimant for the Claimant's personal and official use. The ownership of the fully amortized or used Honda Accord car was transferred from the 2nd Defendant to the Claimant in year 2006. Claimant averred that the 2nd Defendant under the cover of its letter to the Claimant dated 29th February, 2008 delivered one Toyota Prado SUV car with registration no EU 43 SMK to the Claimant for the Claimant’s official and personal use. The 2nd Defendant transferred the ownership of the used Toyota Prado SUV car with registration no EU 43 SMK to the Claimant in June, 2009. Claimant further averred that the 2nd Defendant between 1st June 2000 and 4th June, 2009 in a period of nine years and four days delivered two new cars in July, 2002 and February, 2008 whereas the 2nd Defendant ought to have delivered to the Claimant, one new Honda Accord and one new Toyota Prado SUV cars on each of the following dates 1st June, 2000; 1st June, 2004 and 1st June, 2008. That the 2nd Defendant between 1st June 2000 and 4th June, 2009 which is a period of nine years and four days transferred the ownership of two fully amortized or used cars to the Claimant whereas the 2nd Defendant in line with its Board of Directors approved year 2000 Staff emoluments as amended ought to have transferred the ownership of four fully amortized or used cars from the 2nd Defendant to the Claimant at the four yearly rate of one Honda Accord and one Toyota Prado SUV cars on each of the following dates 31st May, 2004 and 31st May, 2008. Claimant averred that the 2nd Defendant purchased and installed a new 27kva Perkins electricity generator at the Claimant's residence in year 2000 and bore the costs of both its maintenance and the purchase and delivery of diesel (Automated Gas Oil) for the running of the electricity generator. The generator was fully amortized at the end of six years that is on July, 2006. The 2nd Defendant on July, 2006 refused and failed to purchase and install the new 27kva Perkins electricity generator in the Claimant's residence in replacement of the above fully amortized generator. The 2nd Defendant from July, 1998 to 30th December, 2008 at regular basis supplied at its expense the diesel (Automated Gas Oil) for the running of the electricity generator at the Claimant's residence. However from 1st January, 2009 the 2nd Defendant refused and failed to supply the diesel for the running of the electricity generator at the Claimant's residence and to bear the costs of maintenance of the generator and as a result claimant suffered losses. Claimant also averred that by the terms of the Claimant's appointment in the contract of service with both the 1st and 2nd Defendants the Claimant's appointment is permanent and pensionable and that the mandatory age for the Claimant's retirement from service is 60 years. However, 2nd Defendant advised that the Claimant was retired from its service on 30th December, 2008 when the Claimant was 52years of age. The 1st Defendant's Human Resources Department (HRD) by its letter to its Chief Accountant Department (CAD) dated 10th December, 1998 based on the Claimant's letter of resignation from its service dated 29th April, 1994, the Claimant's purported terminal annual total emoluments of #144,589 (as at 30th August, 1994) in December, 1998 and paid the sum of N303,638.90 (three hundred and three thousand, six hundred and thirty eight Naira, Ninety Kobo) to the Claimant as gratuity. The 1st Defendant in the same letter advised, Union Trustees Ltd., the pension managers of the Claimant's legacy pension fund for services with the 1st Defendant, of the deferred pension of #59,281.49. The 1st Defendant commenced the payment of pension to the Claimant from the legacy pension fund at the rate of #6,000 per month from 6th November, 2001. Continuing claimant stated that the 1st Defendant based on the date 30th August, 1994 which the 1st Defendant purports to be the Claimant's terminal date of service with it computed the Claimant's gratuity and annual pension. The Claimant commenced his service with the 1st Defendant on 19th January, 1976 and which service continued with the 2nd Defendant on 25th April, 1994 and shall come to an end on the lawful, effectual and valid date of the Claimant's retirement from the 2nd Defendant's service. The 2nd Defendant on 3rd February, 2009 computed and paid to the Claimant the sum of #17,673,186.90 as gratuity and commenced the payment of annual pension of #4,962,728.00 to the Claimant from 1st January, 2009 to 31st October, 2011 from the legacy pension fund scheme contributions. The claimant averred that the 2nd Defendant computed the Claimant's gratuity at the rate of 140% and annual pension at 40% of the Claimant's purported terminal total annual emoluments of #12,406,820.00 as at the purported terminal date of service of 30th December, 2008 That prior to December, 1998 when the 1st Defendant paid the claimant’s gratuity and 6th November, 2001 when the 1st Defendant commenced the payment of pension to the Claimant respectively and 30th December, 2008 when the 2nd Defendant was purported to have retired the Claimant. The 1st and 2nd Defendants breached the contract of service when they refused and failed to pay, to grant or to purchase and deliver or to transfer the ownership and to provide the Claimant's statutory, contractual entitlements as follows: a) The 1st Defendant refused and failed to grant the Claimant's outstanding statutory 5(five) working holidays or annual leave days for year 1993. b) The 1st Defendant refused and failed to pay the Claimant's full emoluments for the outstanding leave days period as in paragraph 31(a) above. c) The 1st and 2nd Defendants jointly and severally refused and failed to grant the Claimant's outstanding statutory 38 (thirty eight) working days holidays or annual leave days for year 1994. d) The 1st and 2nd Defendants jointly and severally refused and failed to pay the Claimant's entitlement to year 1994 outstanding leave allowance. e) The 1st and 2nd Defendants jointly and severally refused and failed to pay the Claimant's entitlement to full emoluments for the period of the Claimant's outstanding leave days as in paragraph 31(b) above. f) The 2nd Defendant refused and failed to grant the Claimant's year 2008 outstanding statutory 20 working days holidays or annual leave days consisting of 18 (eighteen) working days (excluding week-ends and gazetted public holidays) plus 2(two) gazetted national holidays for Eid-el Kabir in November, 2008, that were omitted in the 2nd Defendant's letter of advice of leave to the Claimant dated 23rd October, 2008. g) The 2nd Defendant refused and failed to pay the Claimant's full emoluments for the outstanding leave days period as in paragraph (f) above h) The 2nd Defendant on each of the following three dates 1st June, 2000, 1st June, 2004 and 1st June, 2008 refused and failed to purchase and deliver to the Claimant as and when due one new Honda Accord car and one new Toyota Prado SUV car. i) The 2nd Defendant as and when due on 31st May, 2004 and 31st May, 2008 refused and failed to transfer from itself to the Claimant the ownership of one fully amortized Honda Accord car and one fully amortized Toyota Prado SUV car arising from the new cars. j) The 2nd Defendant refused and failed to refund or pay to the Claimant the balance and interest or earnings there-on for the contributions into the Claimant's personal pension fund account for the period 1st September, 1994 to 30th December, 2008 and the fund is managed by the 2nd Defendant. k) The 2nd Defendant as at July, 2006 refused and failed to purchase and deliver to the Claimant one new 27kva electricity generating set to replace the then six year old fully amortized or used generator which the 2nd Defendant in year 2000 purchased and delivered to the Claimant for the Claimant's domestic use at his Lagos residence. Claimant stated that as at 30th December, 2008 when the 2nd Defendant purported to have retired the Claimant from its service, the Claimant had been in the permanent and pensionable services of both the 1st and 2nd Defendants for approximately 33 (thirty three) continuous years of service, which are from 19th January 1976 to 30th December, 2008 respectively. That the 1st and 2nd Defendants independent computations and payments of the Claimant's gratuity and pension instead of computing the Claimant's gratuity and pension with his 33 (thirty three) continuous years of service with both the 1st and 2nd Defendants 30th August, 1998 and 30th December, 2008 respectively led to the Claimant's monetary and financial losses as follows: a) The addition of the 1st and 2nd Defendant's distinct and independent computations of the gratuity and pension payments to the Claimant (based on 19years service by the 1st Defendant) and (based on 15years service by the 2nd Defendant) are as follows: i) 1st Defendant's gratuity paid to the Claimant in December, 1998 #303,638.90 ii) Add 2nd Defendant's gratuity paid to the Claimant in February, 2009 #17,369,548.00 iv) Total gratuity payment from the Defendants to the Claimant #17,673,186.90 b) The Claimant's gratuity based on his approximately 33years continuous service with both the 1st and 2nd Defendants on the 2nd Defendant's purported date of the retirement of the Claimant which is 30th December, 2008 computed as follows: i) Claimant's total annual terminal emoluments as at 30th December, 2008 which is the 2nd Defendant's purported date of retirement of the Claimant #12,406,820.00 iii) Multiplied with the Claimant's gratuity entitlement at 284 percent(%) extracted from the Pension Reform Act 2004 and the 2nd Defendant's SPF/GPS/TDR for the Claimant's 33 years continuous service with both the 1st and 2nd Defendants as at 30th December, 2008, the 2nd Defendant's purported date of retirement of the Claimant. 284% iv) Claimant's rightful gratuity as at the 2nd Defendant's date of purported retirement of the Claimant which is 30th December, 2008. and based on the Claimant's approximately 33years continuous service with both the 1st and 2nd Defendants. #35,235,368.80 Claimant averred that it suffered losses as a result of the 1st and 2nd Defendant's independent separate and distinct computations of Defendants purported payments of gratuities to the him in the sum of #17,562,181.90 which is the total sum in subtraction of #17,673,186.90 which is the total sum of entitlement computed by the defendants from #35,235,368.80 which is the accurate entitlement to gratuity for his 33 years continuous service in the defendants employment Claimant also averred that the 1st and 2nd Defendants independent, separate and distinct annual pension payments to him based on the Defendants distinct, independent and separate computations of the his entitlement on approximately 19 years service with the 1st Defendant and approximately 15 years service with the 2nd Defendant were as follows: 1. 1st Defendant's annual pension payment to the Claimant as at 1st January, 2009 computed at #15,600.40 per month which is #15,600.40 multiplied by 12 equals #187,200.00 i) Add 2nd Defendant's annual pension payments with effect from 1st January, 2009 to October, 2011 at 40% of the Claimant's total annual terminal emoluments #4,962,728.00 iii) Claimant's total annual gratuity receipts from the 1st and 2nd Defendants distinct, independent and separate computations as at 1st January, 2009. #5,149,928.00 The Claimant traversed that his annual pension entitlement based on his approximately 33 continuous years of service with both the 1st and 2nd Defendants and as at the 30th December 2008, his purported date of retirement by the 2nd defendant is computed as follows: i) Claimant's total annual terminal emoluments as at 30th December, 2008. #12,406,820.00 ii) Multiplied with the pension entitlement at 76 percent (%) as extracted from both the Pension Reform Act (PRA) 2004 and the 2nd Defendant's SPF/GPS/TDR for the Claimant’s 33 continuous years of service with both the 1st and 2nd Defendants from 19th January, 1976 to 2nd Defendant’s purported dated of retirement of the Claimant which is 30th December, 2008. 76% ii) The Claimant's valid annual pension entitlement from the Defendants on the basis of the Claimant's 33(thirty three) continuous years of service with both the 1st and 2nd Defendants as at 30th December, 2008. #9,429,183.20 The Claimant stated that Defendants independent separate and distinct computations of his pension payments he lost the sum of #4,279,255.20 which is total sum in subtracted of the sum of #5,149,928.00 which is the sum calculated by the 1st and 2nd defendants from the sum of #9,429,183.20 which is the valid annual pension of the claimant on the basis of his 33 thirty three) continuous years of service with both the 1st and 2nd Defendants as at 30th December, 2008. Continuing claimant averred that the 2nd Defendant as at 30th December, 2008 when the 2nd Defendant purported to have retired him, the 2nd Defendant had three different classes of pension schemes for him as follows: 1 (a) The 2nd Defendant commenced its and Claimant's stipulated contributions into the statutory legacy pension scheme and remittance into the National Security Insurance Trust Fund (NSITF) schemes in the Claimant's name with effect from September, 1994 before the commencement of the PRA 2004. b) The 2nd Defendant paid pension out of the Claimant's statutory legacy pension scheme fund as in paragraph 34(1) (a) between 1st January, 2009 and 31st October, 2011. 2 (a) Based on the Pension Reform Act 2004 CAP P4 Laws of the Federation of Nigeria (LFN) the 2nd Defendant with effect from July,2004, to December,2008 contributed its and the Claimant’s stipulated percentage contributions into the Claimant's Retirement Savings Account(RSA) with the Pension Fund Administrator (PFA) nominated by the Claimant. (b) The 2nd Defendant for the implementation of the Pension Reform Act, 2004 made the last monthly contributions remittance into the Claimant's Retirement Savings Account (RSA) in December, 2008. 3(a) The Claimant's personal pension scheme with the 2nd Defendant commenced on September, 1994 and the Defendant and Claimant on equal basis contributed 2.5% which in total is 5% of the Claimant's monthly basic salary, into the scheme. The funds contributed under this Pension scheme is managed by the 2nd Defendant. (b) The 2nd Defendant since inception has never issued to the Claimant, the statement of account showing the balance of the Claimant's personal pension fund nor refunded the Claimant's entitlement to the personal pension fund contribution. 4) The 1st Defendant refused and failed to remit the Claimant's contributions into the Claimant's RSA from January, 2009. That by a letter dated 18th February, 2009 and reminders dated 2nd March, 2009 and 5th June, 2009. he demanded for the payment of his 2009 overseas medical check-up allowance from the 2nd Defendant. The 2nd defendant in response stated that it is only its serving staffs that are entitled to the payment of overseas medical check-up allowance. That the 2nd Defendant in the letter to the him dated 9th January, 2006 notified him of it's payment of the Claimant's 2006 overseas medical check-up allowance in a year he did not travel out of Nigeria. The 2nd Defendant arrived at the Claimant's total outstanding loan balance of #17,433,355.54 in the books of the 2nd Defendant on 2nd January, 2009 by the addition of or the inclusion of part Education, Furniture and Housing allowances the 2nd Defendant paid to the him on or before 2nd January, 2009 which the 2nd Defendant unilaterally converted into loans and added to the Claimant's outstanding loans in the 2nd Defendant's books as at 30th December, 2008. The details of the total part Housing, Education and Furniture allowances which the 2nd Defendant unilaterally converted into loans and added to the Claimant's outstanding loans in its books are as follows: a) Housing Allowance #2,288,000.00 b). Education Allowance #253,753.33 c). Furniture Allowance #2,854,687.50 d). Total part allowance as in paragraph 39(a)-(c) above converted to loan #5,396,440.83 (1) Add Total Claimant’s outstanding loans balances in the books of the 2nd Defendant as at 30th December, 2009 equals #12,036,914.71 (2) Claimant’s total outstanding loans as at 2nd January, 2009 as computed by the 2nd Defendant equals #17,433,355.54 Claimant further averred that his purported retirement at 52 years prior to 2nd Defendant's mandatory retirement age of 60 years by the 2nd Defendant was because of the following: a) The Claimant's interest in Ogada Industries Ltd. (OIL) subscription for the 2nd Defendant's 11,677,420 shares. The Claimant provided the funds with which OIL paid the consideration of #21,019,356 for the above shares for the 2nd Defendant's 2006 Rights Issue. Both the Securities and Exchange Commission (SEC) in case no: SEC/M&I/INVTG/R.3444/09 and Investment and Securities Tribunal (1ST) Appeal no: IST/LA/APP/02/09 respectively held that 2nd Defendant was in breach of contract and negligent. b) OIL's persistent demand, up to 24th December, 2008, from the 2nd Defendant's Issuing house and by extension the 2nd Defendant to-Issue to OIL its duly accepted 2nd Defendant's 11,677,420 ordinary shares of 50kobo each for the 2nd Defendant's 2006 Rights Issue, bonus share issues, dividends declared and interest arising there-from. The claimant during trial tendered some documents which were admitted and marked Exhibits B1-B31 The 1st defendant on the other hand and in response to the facts alleged by the claimant averred that the 1st and 2nd Defendants are separate and distinct legal entities and their respective affairs are managed by different management and board of directors. That the Claimant did not join the employment of the 1st Defendant on 19th January 1976 and that the 1st defendant did not act as agent of the 2nd Defendant for the appointment of the Claimant in the 2nd Defendant's service as Claimant applied directly to the 2nd Defendant for job and was given an appointment by the 2nd Defendant. The 1st defendant denies the averment of claimant and states that the letter dated 24/2/94 was not written by the 1st Defendant. That the name and address of the author of the said letter dated 24/2/94 was clearly stated in the letter as "Union Homes Limited, c/o Corporate Development Department, 40 Marina, Lagos and also undersigned by one O.N. Chionuma, General Manager for Union Homes Limited. The 1st defendant averred further that by a letter dated 6/9/93 the claimant applied to the 2nd Defendant for employment. The Claimant addressed the said letter to "The Protem General Manager, Mortgage Institution, 5th Floor, 40 Marina, P.M.B. 2027, Lagos". The 1st Defendant is neither a Mortgage Institution nor Recruitment Agency but a Banking Institution. Therefore, the Claimant knew that by his said application of 6/9/93 addressed to "Mortgage Institution" (i.e. the 2nd Defendant) he was applying for a job directly with the 2nd Defendant and not through the 1st Defendant as an agent of the 2nd Defendant. The 1st Defendant avers that the terms contained in the said letter of 24/2/94 binds only the Claimant and the 2nd Defendant. The 1st Defendant did not authorize the use of its letter head by the 2nd Defendant and did not know that its letter head was or had been use by the 2nd Defendant for that purpose until the Claimant's suits and estopped from asserting that the said letter dated 24/3/94 was written by the 1st Defendant. The 1st Defendant deny the facts averred by claimant that it never directed the Claimant to resume with the 2nd Defendant and the Claimant has not resigned and still in the service of the 1st Defendant on 5th April 1994, till 29/4/94 when he resigned from employment of the 1st Defendant. That in response to the facts averred by the claimant in paragraph 10 of the Amended Statement of Facts the 1st Defendant states that: i. the statement in the 1st Defendant's letter of 18/4/94 that "the bank's management has agreed that you should be released on 25/4/94 to Union Homes Limited" does not mean or suggest that there is an agreement between the parties (i.e. the 1st and 2nd Defendant and the Claimant) or the 1st Defendant has agreed that the Claimant's contract of employment is to continue with the 2nd Defendant. What it simply means is that the management of the 1st Defendant has agreed to release the Claimant to his new employer (i.e. the 2nd Defendant) on 25th April, 1994 therefore tender your resignation so as to give effect to this. ii. If parties had intend that the Claimant's contract of service with 1st Defendant should continue with the 2nd Defendant, the 1st Defendant will have seconded the Claimant or transfer the Claimant's service to the 2nd Defendant and will not have demanded that the Claimant resign from the employment of the 1st Defendant. iii. The 1st Defendant stated expressly by a letter dated 18/4/94 that "the bank is however aware that you will carry on with your years of service from Union bank to Union Homes." This means that the 1st Defendant know or is conscious of this fact but not that the 1st Defendant agreed to it. iv. The 1st Defendant in same letter expressly demanded that the Claimant should resign his employment with the 1st Defendant, which the Claimant did by a letter dated 29/4/94, which effectively brought the master/servant relationship between the Claimant and the 1st Defendant to an end. v. The fact that the 1st Defendant demanded that the Claimant should resign from the employment of the 1st Defendant shows that the 1st Defendant never intend that the Claimant employment should continue with the 2nd Defendant. Defendant averred further that 1st Defendant employed Claimant vide a letter of employment addressed to the Claimant which contained the terms and conditions of the Claimant's contract of employment with the 1st Defendant. That by a letter dated 29/4/94 claimant resigned voluntarily from the service of the 1st Defendant, which brought the Claimant's contract of employment with the 1st Defendant to an end. The Claimant has been paid his gratuity entitlement by the 1st Defendant for the period the Claimant was in its service and the 1st Defendant has also been paying the Claimant his monthly pensions. That there is no agreement between the Claimant and the 1st Defendant that the Claimant's contract of service will continue with the 2nd Defendant and contrary to the allegations of the Claimant, there is no term in the Claimant's contract of service which provides that the Claimant's contract of service is permanent and pensionable or which provides that the mandatory age of Claimant's retirement is 60 years or that the Claimant cannot be retired before he attains the age of 60 years. That the 1st Defendant denies the allegations contained in paragraph 26 of the Amended Statement of Facts. The 1st Defendant state in response that the Claimant in a letter to the 1st Defendant dated 7/5/97 stated in the 1st paragraph thereof that I resigned from the employment of your organization on 31st August 1994 after putting in about 19 years (19th January 1976 to 31st August 1994) unbroken service. Kindly arrange and effect the payment of my gratuity entitlements." Therefore, allegation of the Claimant that "The 1st Defendant based on the date 30th August, 1994 which the 1st Defendant purports to be the Claimant's terminal date of service with, and the date of the 1st Defendant adopted for the determination of the Claimant's terminal annual total emoluments in the service of the 1st Defendant ... " is incorrect because the Claimant in his said letter of 7/5/97 stated that he resigned from the 1st Defendant on 31st August 1994. The 1st Defendant deny the allegations contained in paragraphs 31, 31(a), 31(b), 31(c), 31(d), 31(e), of the Amended Statement of Facts as they are not maintainable in law because they are caught by the limitation law since Claimant resigned from the 1st Defendant in 1994. That in response to paragraphs 33 (a-f) there was no independent, distinct or separate computation of the Claimant's gratuity and pension benefits by the 1st Defendant, the Claimant as stated in his letter of 7/5/97 as the Claimant's gratuity and pension has been correctly computed and paid by the 1st Defendant to the Claimant and the computations contained in the said paragraphs 33 (a-f) are incorrect, inaccurate and not based on any agreement or contract of service between the Claimant and the 1st Defendant. The 1st Defendant stated that the Pension Reform Act, 2004 is not applicable to the Claimant. That the Claimant's claims against the 1st Defendant arose before 1994 or in 1994, when the Claimant resigned from the employment of the 1st Defendant and the Claimant's claims against the 1st Defendant are statute barred. The 1st Defendant stated that the Claimant's claim is frivolous and unmaintainable and an abuse of court process and should be dismissed with substantial cost. The 1st defendant during trial tendered some documents which were admitted and marked ExhibitsAN1-AN7. It is the case of the 2nd defendant that though it is a subsidiary of the 1st Defendant, but has its own Board of Directors distinct from that of the 1st Defendant and the Board of Directors direct the day to day affairs of the 2nd Defendant. That the Claimant applied for employment in the services of the 2nd Defendant via a letter dated the 6th September, 1993, and was duly invited for an interview via a letter dated the 6th October, 1993, while he was offered employment by the 2nd Defendant on a probationary period of 12 months via a letter dated 24th February, 1994. The 1st defendant did not offer the claimant an appointment as Assistant General Manager on behalf of the 2nd defendant rather prior to the printing of its letter headed paper the 2nd defendant was using the letter headed paper of the 1st defendant but all letters were signed by Mr. O.N. Chionuma whom the claimant knew at all times material to the suit to be the 2nd defendant's protem General Manager. That the claimant's application for employment dated 6th September, 1993 was addressed to the Protem General Manager, Mortgage Institution which was the name by which the 2nd defendant was known and addressed as at that time and the 2nd defendant's letter dated 6th October, 1993 inviting the claimant for employment interview was signed by the same O.N. Chionuma Esq. as Union Homes General Manager. That the claimant resigned voluntarily from the services of the 1st defendant on the 29th day of April, 1994 and the Managing Director did not direct nor pressurized the claimant orally or in writing to write his letter dated 7th May, 1997 and 5th November, 1998. The 2nd defendant averred that the claimant was compulsorily retired along with some other members of staff so as to achieve it set goal and once a member of staff of the 2nd defendant is retired or cease been a member of staff any un-used annual leave is not redeemable. The claimant was in the employment of the 2nd defendant as at the 30th day of December, 2008 for a total of 14 years and 8 months and was paid his entire gratuity and his annual pension in accordance with 2nd defendant’s Staff Provident Fund/gratuity and Pension which governs the relationship between it and its workers and the claimant. The 2nd defendant averred further that it did not have any contractual obligations to: (a) pay the claimant N5,536,800.00 or its U.S Dollar equivalent as annual overseas medical allowance for the year 2009 or subsequent years because the claimant was no longer in the employment of the 2nd defendant as at 1st January, 2009 as he had been retired compulsorily on 30th December, 2008. (b) The claimant is not entitled to enjoy in retirement free overseas medical treatment as such free medical treatment are for officers of the 2nd defendant still on active service and it is not part of the claimant's letter of retirement dated 30th December, 2008 nor in his letter of employment or that of promotion and claimant's letter of 5th June, 2009 to the 2nd defendant. (c) the claimant is not entitled to the payment of warm clothing allowance as such payment are made to officers/employees of the 2nd defendant going to cold weather countries and the claimant has not been sent to such countries by the 2nd defendant. The 2nd defendant further averred that the claimant collected upfront his housing, furniture and education allowances before 30th December, 2008 as against April, 2009 for the years 2009 to 2012. But the 2nd defendant in its magnanimity converted same to loan with 6% interest as against commercial interest rate of 21% or immediate deduction from his final entitlement upon his lawful retirement. The claimant is not entitled to the provision of personalized vehicles or generator nor their transfer to him as they were not part of the terms of his employment but were privileges attached to various positions which are to be enjoyed at the discretion of the 2nd defendant and availability of money to meet the privileges. Claimant did not suffer any loss for the alleged none use or provision of same. That claimant is not entitled to the cost of 3000 diesel for use in his house/residence from 1st January, 2009 as he was no longer in the employment of the 2nd defendant and claimant’s claims in paragraphs 3(a) to (d) of the claim are statute barred as the alleged breach of contract occurred over six years ago that is, June 2004 and June 2005 before the action was instituted and the action was filed in December, 2011.The 2nd defendant averred that claimant is not entitled to the remission of monthly contribution into his retirement savings account from 1st January, 2009 because he was no longer in the employment of the 2nd defendant as at 1st January, 2009 as he was lawfully retired on 30th December, 2008 by the 2nd defendant. The 2nd defendant during trial tendered some documents which were admitted and marked ExhibitsAE1- AE15. The claimant on the 13th of November, 2012 filed a further statement of fact in reply to the 1st defendant’s statement of defence wherein he averred and in response to the defendants that the 2nd defendant is the subsidiary of the 1st defendant and that between 1994 and 1998 the 1st and 2nd defendants had three directors who served in each of the Board of Directors. That as clearly stated in the certificate the 1st defendant awarded the claimant in recognition of the claimant’s 15years loyal and faithful service with the 1st defendant, the claimant served from 19th January, 1976 to 19th January 1991. Claimant averred that the 1st defendant was at material times aware that the claimant resumed in the service of the 2nd defendant on the 25th April, 1994 and subsequently resigned from the 1st defendant’s service by a letter dated 29th April, 1994. Claimant in response to the defendant’s averment stated that the 1st defendant’s Head office periodically issues out interest rate circulars to its branches and its branches on enquiry, passes the information on the range of interest rates orally to non-borrowing customers and advises in writing the applicable interest rate to each 1st defendant’s borrowing customers. The 1st Defendant on the 14th of May, 2014 filed its written address wherein he raises four issues for the court’s determination 1. Whether the claimant's employment with the 1st defendant was determined by the letter of resignation dated 28th Aril, 1984. 2. Whether upon the resignation of the claimant from the 1st defendant's, his employment with the 1st defendant thereafter continued with the 2nd defendant. 3. Whether the 1st defendant acted as agent to the 2nd defendant for the purpose of the claimant's appointment. 4. Whether the claimant is entitled to the reliefs sought against the 1st defendant. On issue one counsel submitted that the Claimant was employed by the 1st Defendant in 1976. However, in 1994, the Claimant by a letter headed dated 29/4/1994, resigned his appointment with the 1st Defendant. The Claimant did not deny this allegation and thus the resignation as done by the Claimant vide his aforesaid of 29/4/94 is in law a formal renunciation or relinquishment of an office. He cited the case of AGIENOJI V C.O.P. EDO STATE [2007] ALL FWLR (PT. 367) 887 AT 905, the court stated that: 'Abandonment of public office is a specie of resignation, but differs from resignation, in that resignation is a formal relinquishment while abandonment is a voluntary relinquishment through non-user'. Counsel urged the court to hold that the Claimant by its aforesaid letter of resignation has formal renunciation or relinquishment his employment with the 1st Defendant thus determining the contract of employment between the parties. Counsel submitted further that sequel to claimant’s resignation, the Claimant gratuity and pension for the period he was in the employment of the 1st Defendant were correctly calculated and paid to him and he admitted that he has been receiving pension from the 1st Defendant. He also stated under cross-examination that he has been paid gratuity by the 1st Defendant for the period he was in the employment of the 1st Defendant. Counsel continued that if the Court agrees with the 1st defendant, that the Claimant's contract of service with the 1st Defendant has been determined by his resignation, the payment of his terminal benefits and acceptance of same by him, then most of the Claimant's claims against the 1st Defendant must necessarily fail as the grouse of the claimant’s claim is continuation of his contract of service with the 2nd Defendant after his resignation from the 1st Defendant. It is the submission of learned 1st defence counsel on issue two, that the Claimant had resigned his appointment with the 1st Defendant before joining the employment of the 2nd Defendant, it is the Claimant's case that his contract of employment with the 1st Defendant continued with the 2nd Defendant. He submitted that the Claimant's aforesaid position cannot find support in law, the facts of this case also clearly did not support the Claimant's contention that from the pleadings and evidence before the court, the Claimant by a letter dated 6/9/1993 applied to the 2nd Defendant for employment. The Claimant addressed the said letter to "The Protem General Manager, Mortgage Institution, 5th Floor, 40 Marina, P.M.B. 2027, Lagos". The 1st Defendant is neither a Mortgage Institution nor Recruitment Agency and never held itself out as such to the Claimant. This Claimant knew that the 1st Defendant is a Banking Institution and not a Recruitment Agency or Mortgage Institution and admitted same under oath. It is trite law that fact admitted need no further prove more so, the Claimant did not state any other mortgage institution aside from the 2nd Defendant to which the letter was addressed. It is therefore, the 1st Defendant's submission that the Claimant knew that by the said application letter addressed to "The Protem General Manager, Mortgage Institution" he was applying for a job with the 2nd Defendant. Counsel argued that the 2nd Defendant's letter of offer of employment addressed to the Claimant dated 24th February, 1994, Exhibit AN3 contained new terms of employment which includes a probationary period of 12 months and remunerations therefore, the offer of appointment contained in Exhibit AN3 is for a fresh and new job which is separate and distinct from the Claimant's employment with 1st Defendant, from which the Claimant resigned. Counsel also submitted that by a letter dated 18th April, 1994, the management of the 1st Defendant informed the Claimant that they have agreed to release him on the 25th April, 1994 to the 2nd Defendant. That the Claimant has so much relied on this letter urging the court to believe that his appointment with the 2nd Defendant is a continuous one from the 1st Defendant. Counsel reproduced the said paragraph as follows; "The bank's management has agreed that you should be released on 25/4/94 to Union Homes Limited. Consequently, you are requested to tender your resignation letter to that effect." Contrary to the contention of the Claimant, counsel contends that it does not mean or suggest that there is an agreement between the parties (i.e. the 1st and 2nd Defendant and the Claimant) or the 1st Defendant has agreed that the Claimant's contract of employment is to continue with the 2nd Defendant. What it simply means is that the management of the 1st Defendant has agreed to release the claimant to his new employer (i.e. the 2nd Defendant) on 25th April, 1994 therefore tender your resignation so as to give effect to this. Also the paragraph reproduced below which states as follows; "The bank is however aware that you will carry on with your years of service from Union Bank to Union Homes." This means that the 1st Defendant know or is conscious of the fact that the Claimant carry on with his years of with his years of service from the 1st Defendant to the 2nd Defendant but not that the 1st Defendant agreed to it. Counsel stated that been aware of something is different from an agreement with it. Thereof 1st defendant requested the claimant to resign his appointment with them and continue with the 2nd Defendant. If the Claimant had intend or agreed that the Claimant's contract of service with 1st Defendant should continue with the 2nd Defendant, the 1st Defendant will have seconded the Claimant or transfer the Claimant's service to the 2nd Defendant and will not have demanded that the Claimant resign its employment. Counsel submitted that the Claimant has failed to establish his allegation that his employment with the 1st Defendant continued with the 2nd Defendant. As regards issue three, counsel contended that the 1st and 2nd Defendants are distinct and separate legal entities. This the claimant admitted to in paragraphs 4 and 5 of the Statement of Claim. Continuing, counsel contended that claimant's allegation that the 1st Defendant acted as agent to the 2nd Defendant for the purpose of employing him is baseless and it cannot be said that the 1st Defendant acted as an agent to the 2nd Defendant for the purpose of employing the Claimant when in actual fact the 2nd Defendant related and dealt directly with the Claimant on the issue. Counsel assuming without conceding that the 1st Defendant acted as agent to the 2nd Defendant, acts of the 1st Defendant in the course of the agency would be regarded as that of the 2nd Defendant and binding only on the 2nd Defendant and not the 1st Defendant. He cited the case of SAMUEL OSIGWE V. PSPLS MANAGEMENT CONSORTIUM LTD & ORS. [2009] 3 NWLR (PT. 1128) 378 Counsel submitted that Claimant has failed to establish by evidence before the Court that the 1st Defendant acted as agent for 2nd Defendant the purpose of employing the Claimant. On issue four, counsel submitted that it is trite law that before the court can grant the reliefs sought by the Claimant, the Claimant must establish by evidence the facts which entitles him to such reliefs and the burden of proof lies on the Claimant who alleges he is entitled to the reliefs to prove or establish his entitled thereto. Counsel submitted that the relief sought by Claimant that his “service with the 1st and 2nd Defendants which is a permanent, pensionable and continuous contract of service commenced on 19th January, 1976 remains valid and subsists” goes to no issue as the claimant will not be allowed to approbate and reprobate. The Claimant had stated that he worked with the 1st Defendant for about 19 years after which he resigned his appointment and has not denied the fact that he had been paid his gratuity and has since been receiving his monthly pension from the 1st Defendant which he enjoys up till date and the Claimant is estopped from asserting that his employment with the 1st Defendant continued with 2nd Defendant. The 1st defendant’s counsel submitted that it has no agreement or arrangement with the 2nd Defendant or the Claimant for the Claimant's contract of employment with the 1st Defendant to continue with the 2nd Defendant upon the Claimant's resignation from the 1st Defendant. The 1st Claimant cannot impose the Claimant's years of service with the 1st Defendant on the 2nd Defendant, if at all there was such agreement or arrangement the 1st Defendant was not a party to it. Contrary to the Claimant's allegation that his contract of employment with the 1st Defendant continues with the 2nd Defendant, the Claimant's case based on the pleadings and documents filed by him in Court is that he resigned his appointment with the 1st Defendant and has been paid his terminal benefits by the 1st Defendant. Therefore, if the Claimant has made any case it is that his contract of service with the 1st Defendant has in fact been brought to an end since 1994 when the Claimant's resigned from the 1st Defendant and not that it continued with the 2nd Defendant. That once a notice of retirement is received from the employer it becomes effective immediately. We refer to the case of WAEC V. OSHIONEBO [2006] 12 NWLR (PT.994) 258. Counsel continued that both letters dated 8th of April, 1994 and 18th of April, 1994 only buttress the Claimant's resignation letter which brought the contract of employment between it and the 1st Defendant to an end and he urged the court to so hold. Counsel further submitted that the court cannot order the 1st Defendant to compute pension and gratuity together with the 2nd Defendant or from the date the Claimant retires from the 2nd Defendant because as canvassed above, the employment of the Claimant with the 1st Defendant did not continue with the 2nd Defendant. That the 1st Defendant had since paid the Claimant's gratuity which he accepted and is paying his pension which he never refused up till date. Counsel stressed that the Claimant is not entitled to any outstanding emolument because all his emoluments had been correctly computed and credited into his account. That the Claimant cannot just wake up from his slumber in 2011 to make claims for entitlements that accrued in 1993 and 1994 and when the Claimant had left the service of the 1st Defendant in 1994. He cited Section 8(1) (a) of the Limitation Law of Lagos State which provides that: "The following actions shall not be brought after the expiration of six years (6) from date on which the cause of action accrued. (a) actions founded on simple contract'" The Claimant's claims arose out of contract of employment and by virtue of the above-quoted provisions of the Limitation Law of Lagos State, which is applicable to the contract, the reliefs sought by the Claimant are statute barred and thus urged the Court to so hold. Counsel also urged the court to hold that this suit lacks merit and dismissed same in its entirety with substantial cost. The 2nd defendant on the 14th of May, filed its written address wherein it raised three issues for the court’s determination as follows; 1. Whether the relationship between the Claimant and the Defendant is covered by statutory flavor. 2. Whether the terms of the contract of employment between the claimant and the defendant was complied with in relation to the mode of termination of employment of the claimant. 3. Whether the Claimant was paid his full contractual entitlements upon termination of his employment with the defendant. On issue one, counsel on definition of an employment with statutory flavor referred the Court to the case of EPEROKUN V UNIVERSITY OF LAGOS [1986] 4 NWLR (PT 34), 162, where His Lordship, Hon. Justice Niki Tobi, J.S.C, held that, “an employment is said to have statutory flavor if the employment is directly governed or regulated by a statute or a section or sections of the statute delegate powers to an authority or body to make the regulations or conditions of services as the case may be. In the case of the latter, the section or the sections of the statute must clearly and unequivocally govern or regulate the employment of the plaintiff.” Counsel went on to state that where a contract of employment can be determined by the agreement of the parties simpliciter, there is no question of the contract having statutory flavor, where however the conditions of appointment or determination of the contract of employment is governed by the preconditions of an enabling statute, so that a valid, legal or lawful termination of the appointment is said to have statutory flavor and does not come to an end unless those provisions are complied with. Counsel submitted that Exhibit AE3 is the claimant's letter of employment, a document which under cross examination the claimant did not dispute being offered employment by the 2nd defendant and accepting same. The direct consequence of Exhibit AE3 is that it is the document that binds the claimant and the 2nd defendant in this suit. However, Exhibit AE3, does not prescribe any mode with which the defendant is bound to bring the relationship between parties to this suit to an end. He cited the case of CHIEF TAMUNOEMI IDONIBOYE-OBU V NIGERIAN NATIONAL PETROLEUM CORPORATION [2005] 3 N.L.L.R, (PT 8) PG. 276, where it was held that, Where an appointment is determinable by the agreement of the parties simpliciter, in accordance with the terms of the contract of service, under no guise can statutory flavor be attached to it, but must be regarded as a mere master/servant relationship. It is the further submission of the 2nd defendant's counsel that under the Nigerian common law, a contract of employment can be terminated with or without notice or with payment of salary in lieu of notice, provided that the payment is contractual, it extinguishes any claim for damages for breach of contract, that is wrongful termination of employment, such employment ceases from the moment of termination, and it does not matter whether the employee accepts or rejects the payment in lieu of notice, and the employees refusal to accept the payment will not invalidate the termination of employment. He cited the case of KWARA INVESTMENT COMPANY LTD V GARUBA [2000] FWLR (PT2) 198, UTC NIGERIA V CHUKWUNEKE NWOKURUKA (1993) 3 NWLR (PT 281) P295. Counsel submitted that the Court whilst on a voyage of discovery to establish proof of wrongful termination of employment is not entitled to look outside the contract of employment of service as to the terms and conditions. The Court must gather the terms and conditions of service from the contract itself. See ADEGBITE V COLLEGE OF MEDICINE UNIVERSITY OF LAGOS [1973] 5 SC. 149 AT 162, INTERNATIONAL DRILLING (NIG) LTD V AJIOLA (1976) 2 SC 115 AT 127. It was shown to the Court during the trial of this suit, that the contract of employment binding the parties to this suit does not prescribe any mode of termination of employment, thus where termination of an employee's employment is in line with the defendants administrative procedure i.e the payment of one month salary in lieu of notice, together with severance benefits, then the court will not interfere with the termination of appointment. The Claimant under oath admitted that upon termination of his employment with the Defendant he was paid severance benefit, pension and total emoluments which is evidenced by documents tendered and admitted in evidence by the 2nd defendants as against the legally acceptable one month's salary in lieu of notice, which is operational with regard to employments which are not covered by statutory flavor. He cited the case of MOBIL PRODUCING UNLIMITED V FRANCIS JOHNSON ASUAH [2005] 2 NLLRN (PT 4) P. 37, where it was held that it is now settled that where an employee accepts salary in lieu of termination of his employment he cannot be heard to complain later that his contract of employment was not validly and properly determined and such a conduct renders the determination mutual. Counsel argued that the claimant’s prayer for a declaration that his employment with the defendant still subsists and that the termination of employment is void ab initio, and he should be reinstated to his prior position with the defendant. counsel stated that this position as prayed for by the claimant is without any legal basis or foundation as it is settled, in the case of NUFBTE V COCOA INDUSTRIES LTD [2005] 3 N.L.L.R (PT 8), PG. 206, where it was held that as a matter of principle two instances exist when Courts generally order reinstatement. The first instance is when the employment is statutory, and the statutory process of disengagement was not followed, here reinstatement has always been ordered by the Courts. The second is where a worker was disengaged for embarking on trade union activities. This result is the product of the Trade dispute Act, 1990 and Section 9(6)(b)(ii) of the Labour Act 1990. The basis for the termination of the claimant's employment does not fall into any of the two stated categories thus counsel urged the Court to so hold that the claimant's prayers in that regard must fail. Counsel assuming without conceding that the claimant’s employment was unlawfully terminated by the defendant, the only remedy that would be available to the claimant is as enunciated in the case of ONALAJA V AFRICAN PETROLEUM [1991] 7 NWLR (PT 206) 691 @ 698 Where it was held that the level of damages for unlawful termination of employment is the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment, such a servant cannot claim wages for services he has never rendered. Before a claimant on an allegation of wrongful termination of employment can succeed, the worker must establish through credible evidence that the terms of the service contract were not complied with. Counsel stated that the reliefs being claimed by the claimant, which include the non-supply of diesel by the defendant not withstanding that his employment had been terminated, rest & recuperation allowance, tea and biscuit allowance, warm clothing allowance, the provision by the defendant of a Toyota sports utility vehicle after having been provided with same in the recent past are contradictory as he admitted in open Court that notwithstanding the termination of his employment with the defendant he still feels entitled to being furnished with same privileges. The claimant also claims for futuristic allowances and emoluments, which in practice is against settled laws, he cited the case of DR. VICTOR IGWILLO V CENTRAL BANK OF NIGERIA [2005] NLLR (PT 6) P. 377, where it was held that in an action for wrongful termination, claims based on expected salaries and allowances are not maintainable since they are futuristic and speculative in nature. On the proprietary of claims based on unexhausted period of contract of service, claims by an employee for arrears of salary, gratuity and allowances from the unexhausted period of the employee's contract of service is an unusual relief. Even if the employee has been dismissed in breach of his contract of employment, he cannot choose to treat the contract as subsisting and sue for an action of profits that is salary, gratuity and other allowances, which he would have earned till the end of the contractual period. The claimant further admitted under oath that his unearned allowances were recouped by the 2nd defendant from his total severance benefit due to the fact that he was indebted to the defendant. On issue two, counsel posited that the 2nd defendant complied with the provisions of its staff provident, gratuity and pension scheme Exhibit AE7. The said exhibit does not provide for any specific mode of the termination of an employee’s appointment, as long as the employee is paid salary in lieu of notice, also there is no provision that the defendant is to give any reason or reasons for the employees termination of appointment. He cited the case of OYEDELE V IFE UTH (1990) 6 NWLR (PT 155) 194. That the claimant admitted under oath that he was paid severance benefit upon the termination of his employment by the defendant. Counsel cited the position as stated in the case of THE AUSTRIAN-NIGERIAN LACE MANUFACTURING COMPANY LTD V NATIONAL UNION OF TEXTILE, GARMENT AND TAILORING WORKERS OF NIGERIAN PG 102. Where it was held that, Workers who on being issued with letters of termination of employment, accept the letter and receive their terminal benefits, have by their action discharged the employer from further liability of payment of wages under their contracts of service with effect from the dates of the letters. Contrary to claimant's claims that his statutory years of outstanding annual leave for the year 2008 was not granted to him and that he did not receive payment in respect of same, counsel posited that the claimant was furnished with payments for his outstanding leave years as the 2nd defendant does not encourage its employees not to go on leave as and when due and the claimant failed to provide any documentary evidence in support of this assertion and therefore the said assertion is bound to fail. On issue four, counsel submitted that under oath claimant admitted that he was paid his severance benefits, where he admitted that he worked for the defendant for a period of fourteen years and eight months and the claimant also further admitted to the fact that he is indebted to the defendant and that upon his employment being terminated by the defendant, his unearned allowances were recouped by the defendant from his total severance benefit as he was indebted to the defendant. The claimant upon termination of his employment was indebted to the defendant in relation to payments on outstanding loan facilities and also with respect to the issue of the claimant being liable to refund to the defendant any unearned allowances which are customarily paid up front every year, and which in the case of the claimant was already paid to him. The defendant being considerable did not demand outright for the claimant’s entire debt to be repaid instantly, but rather converted same to a "soft loan" in favour of the claimant. Counsel referred the Court to the case of METAL PRODUCTS WORKERS UNION OF NIGERIA V ALZICO LIMITED, DJNIC (1978-2006) PG 43. Where it was held that; “When employees leave the service of their employer, the latter is entitled to make deductions on account of outstanding balances on loans from the payments to be made to the employees, by reference to the outstanding book balances of the loans. The employer is also entitled to deduct, as in this case, the value of the car surrendered by the employee as assessed by the employers dealers, where the employee takes no steps to protest against the assessment or arrange for his own assessment and sale at the assessed value.” Counsel submitted that the claimant claims lacks any concrete basis and urged the Court to dismiss the claims of the claimant in its entirety, as it lacks merit, is gold digging and frivolous. The claimant on the 18th of June, 2014 filed his Written Address wherein he framed eight issues for the Court’s determination as follows; 1. Whether the letter to the Claimant dated 30th December, 2008, as in Exhibit BI0, lawfully, validly and effectually brought to an end the continuous permanent and pensionable contract of service between the Claimant and the 2nd Defendant on 30th December, 2008. 2. Whether the 1st Defendant is the agent of the 2nd Defendant for the appointment of the Claimant in the 2nd Defendant's service. 3. Whether the Claimant's permanent and pensionable contract of service with the 1st Defendant and the 2nd Defendant which commenced on 19th January, 1976 is a continuous contract of service. 4 Whether the Claimant's letter of resignation to the 1st Defendant dated 29th April, 1994, brought to an end the permanent and pensionable contract of service between the Claimant and the 1st Defendant. 5. Whether the 1st and 2nd Defendants independent, distinct and separate computation or measure and payments of gratuity and pension to the Claimant in December 1998 and January 2009 respectively were the lawful, valid and effectual computation and payment in full of the Claimant's entitlement to gratuity and pension in full for the Claimant's continuous years contract of service with the 1st and 2nd Defendants. 6. Whether the Claimant is entitled to the 1st and 2nd Defendants grant, payment, purchase/delivery and transfer of outstanding statutory, contractual and equitable emoluments in cash and kind and leave days prior to his lawful, valid and effectual retirement. 7. Whether the Claimant is entitled to interest for the monetary reliefs in the Claimant's claims in the Claimant's Amended Statement of Facts filed with this Honorable Court on 6th August, 2012. 8. Whether the Claimant is entitled to the costs of instituting and prosecuting this suit. It is the claimant's submission that the parties by virtue of the facts in the pleadings are in ad idem that the 2nd Defendant is a company incorporated under the laws of Nigeria and licensed by the Federal Ministry of Works and Housing as a Primary Mortgage Institution (PMI) to carry on Primary Mortgage business in Nigeria pursuant to the Mortgage Institutions Act, Laws of the Federation (LFN) CAP M19. That there is a contract of service between the Claimant and the 2nd Defendant as in exhibit B 1 which commenced on 25th April, 1994. However, the only area of dispute is whether the 2nd Defendant's purported letter of retirement of the Claimant as in Exhibit BI0 dated 30th December, 2008 brought the contract of service between the Claimant and the 2nd Defendant to an end with effect from 30th December, 2008. Counsel argues that the preliminary question that arises are; 1) Whether the 2nd Defendant is the Bank or the Bank is the 2nd Defendant; 2) Whether Exhibit B10 is the act of either the 2nd Defendant or the Bank; and 3) Whether the 2nd Defendant or the Bank is the author of exhibit B10. Counsel in answering the above posed questions defined what a Mortgage Institution and Bank as follows: (1) The Mortgage Institutions Act (MIA), Laws of the Federation (LFN) 2004' CAP M 19 Section 26 which is the interpretation section of the applicable law that established the 2nd Defendant has no definition for the Bank but provides as follows: a) That Mortgage Institution means any company licensed to carry on mortgage business under this Act. b) That Mortgage Business means the business of accepting deposits from members of the public for the purpose of granting mortgage loans and advances for the purchase, construction, improvement and extension of houses. (2) The Banks and Other Financial Institutions Act (BOFIA). Laws of the Federation (LFN) CAP B3-1 Section 66 which is the interpretation section of BOFIA provides as follows: a) That the Bank means the Central Bank of Nigeria (CBN). b) That the bank means a bank licensed under this Act. Counsel applying the meanings ascribed to Mortgage Institutions and the Bank submitted as follows: a) The 2nd Defendant is a Mortgage Institution and not the Bank, the Bank is the Central Bank of Nigeria (CBN) and not the 2nd Defendant. b) Exhibit B10 is the act and creation of the CBN and not the act of the 2nd Defendant. c) The author of exhibit B10 is the CBN and the 2nd Defendant is not the author of Exhibit B10. It is the claimant’s contention that the 2nd Defendant did not put in evidence the certificate of registration in its alleged one time name "Mortgage Institution" issued by the Corporate Affairs Commission to the 2nd Defendant as alleged in paragraph 4 of its statement of defense filed. The 2nd Defendant did not plead a change of name or tender its evidence of change of name from "Mortgage Institution" to Union Homes Limited. Therefore the 2nd Defendant's pleading that it was once known as "Mortgage Institution" is baseless, without foundation ought to be discountenanced by this Honorable Court as the existence of the names of the 2nd Defendant in the heading of Exhibit B10 and CBN (the Bank) in paragraph one of Exhibit B 10 created an ambiguity on whether it was the 2nd Defendant or CBN that was the author of exhibit B10. He cited the case of MACFOY V UNITED AFRICA CO. LTD. [1961] 3 ALL ER 1189 in support of his assertion. The Supreme Court in the case of EJIMOFOR V NITEL [2007] 1 NWLR (PT 1014) held that "A void act cannot be validated by subsequent approval and anything based on a void act is bad and incurably bad. Once it is void ab initio, it remains void." Claimant's counsel submitted that the 2nd Defendant's purported retirement of the Claimant is null, invalid and void as there was no retirement. What the 2nd Defendant did was a nullity and all acts that followed the aforestated nullity are baseless as the 2nd Defendant cannot build something on nothing. Counsel submitted further that the literal rule of interpretation states that words in a document should be interpreted in their simple and ordinary meanings. That by the literal rule of interpretation to the construction of Exhibit B10 based on the body of the Exhibit, the author of Exhibit B10 is the CBN and the 2nd Defendant is not the CBN, therefore the 2nd Defendant purported act in Exhibit B10 is a nullity and the 2nd Defendant did not in Exhibit B10 retire the Claimant with effect from 30th December, 2008 or any date in the calendar. Counsel contended that contrary to the 2nd Defendant's contention in its final written address, the 2nd Defendant had the power and discretion to retire the Claimant with effect from 30th December, 2008 as in Exhibit BI0 but did not exercise that power and discretion in Exhibit B10 as the purported retirement of the Claimant with effect from 30th December, 2008 is null and void because the 2nd Defendant was not the author of Exhibit B1O. That there was no notice of termination in the instant case and the Claimant in the proceedings and pleadings before this Honorable Court never stated that the 2nd Defendant offered him employment but that the 1st Defendant offered the Claimant an appointment in the 2nd Defendant's service which the Claimant accepted. Counsel urged the court to hold that pursuant to the provisions of BOFIA as it relates to the definition of the Bank, the CBN is the author of exhibit B10 and the 2nd Defendant is not the author of Exhibit B10. That the letter to the Claimant dated 30th December, 2008 as in Exhibit BI0, did not lawfully, validly and effectually bring to an end the Claimant's continuous permanent and pensionable contract of service with the 1st the 2nd Defendants on 30th December, 2008 because the 2nd Defendant was not the author of Exhibit BI0 hence the 2nd Defendant's purported retirement of the Claimant with effect from 30th December, 2008, in Exhibit B10, is ab initio null, void and of no legal effect. That the Claimant's continuous permanent and pensionable contract of service with the 1st and 2nd Defendants which continued on 25th April, 1994 when the Claimant resumed in the 2nd Defendant's service subsists until the valid, lawful and effectual termination of the continuous permanent and pensionable contract of service between the Claimant and the 2nd Defendant by either of the parties in which claimant shall be paid all his outstanding entitlements as at 31st December, 2008, allowances wrongly converted into loan and all other entitlements due to him with interest prior to and on the effective retirement date. It is the claimant's argument on issue two, that the Claimant and the 1st and 2nd Defendants are in agreement that the Claimant was offered appointment in the 2nd Defendant's service and that the Claimant accepted the offer of appointment as in Exhibit B1. The only area of dispute is who between the 1st Defendant and the 2nd Defendant is the author of the letter of the appointment of the Claimant in the 2nd Defendant's service as in Exhibit B 1 or AN3 or AE3. Also in ad idem is the fact that the letter of appointment of the Claimant in the 2nd Defendant's service is as in Exhibit B 1 or AN3 and that the other correspondences related or connected to the appointment of the Claimant in the 2nd Defendant's service are as in Exhibits B1(1), B2(1) and B2(2) were written with the letter headed paper of the 1st Defendant. this was also admitted to that the 1st Defendant did not authorize the use of its letter headed paper by the 2nd Defendant and did not know that its letter headed paper was or had been used by the 2nd Defendant for that purpose until the commencement of this action. Counsel assuming without conceding that the 1st Defendant did not know that the 2nd Defendant used its letter headed paper for the above, there is no documentary evidence that the 1st Defendant has cautioned the 2nd Defendant and its other subsidiaries never to use the 1st Defendant's letter headed papers for its correspondences. That perusal of Exhibit B 1 or AN3 show that apart from the names of the 1st Defendant printed on the face of Exhibit B 1, the names of members of the 1st Defendant's Board of Directors only were printed in Exhibit Bl and the 2nd Defendant's name was typed there-in and the names of members of the Board of Directors of the 2nd Defendant were never printed on the face of Exhibit B1. Counsel cited Section 278 of the Companies and Allied Matters Act (CAMA) as amended, Laws of the Federation (LFN) CAP C20 with the heading Particulars with respect to directors in trade catalogues, which provides that: (1) Every company to which this section applies shall, in all trade circulars, show cards and business letters on or in which the company's name appears and which are issued or sent by the company to any person in Nigeria, state in legible characters with respect to every director the following particulars- a) his present forename, or other initials thereof, and present surname; b) any former forenames and surnames; c) his nationality, if not a Nigerian: ... by notice published in the Gazette, exempt a company from the obligations imposed by this sub section. (2) This section shall apply to every company incorporated under this Act, or any enactment repealed by it. Counsel applying the provisions of Section 278 of CAMA as amended to the facts show that only the names of the members of the 1st Defendant's Board of Directors were printed on the face of Exhibit B1 or AN3. That in disobedience to and contrary to the provisions of Section 278 of CAMA as amended the names of the members of the 1st Defendant's Board of Directors were not printed on the face of Exhibit B1 or AN3. There is no pleading supported with documentary evidence that the 2nd Defendant qualified and obtained an exemption from the above provisions of CAMA Section 278 from the appropriate Federal Government of Nigeria authority. To him from all the above, it shows that the 2nd defendant is not the author of exhibit B1 or exhibit. Claimant asserted that from the foregoing arguments it is incontrovertible and evidentially clear that between the 1st Defendant and the 2nd Defendant, Exhibit B1 is the 1st Defendant’s act and the 1st Defendant is the author or writer of Exhibit AN3 or B1 and urged the court to so hold. Counsel went on and argued that the 2nd Defendant's contention in its final written address that the 2nd Defendant related and dealt directly with the Claimant for the purpose of employing the Claimant is wrong, incorrect and untrue as Exhibits ANI, AN2, AN3 reveal that as between 1993 and 1994 when exhibits ANI, AN2 and AN3 were created Union Bank of Nigeria PIc, Head Office address was 40 Marina, and its post office box was P.M.B. 2027, Lagos and (aside from the Claimant's address) the name Union Bank of Nigeria PIc, its office address and post office box number are on the face of exhibits ANI, AN2 and AN3. The inference that can be drawn from the foregoing is that the above stated Exhibits were direct exchange of documents between the Claimant and the 1st Defendant and never with the 2nd Defendant. It is the claimant's position that the act of 25th April, 1994 when 2nd Defendant received the Claimant in its service, retained him in its service and promoted the Claimant in 1998 (as in Exhibit B 11), the 2nd Defendant by these positive acts ratified the 1st Defendant's appointment of the Claimant in the 2nd Defendant's service and is estopped from denying the fact that the 1st Defendant was its agent for the appointment of the Claimant in the 2nd Defendant's service. Cited is the case of ODOGWU V ILOMBU (2007) 8 N.W.L.R. (PT 1037) 488 C.A. particularly page 511 PARA E, on the binding of a principal by the act of an agent stated as follows: “In legal parlance, it is well accepted that qui facit per alium facit per se (He who does something through an agent does it by himself”. On issue three, it is counsel’s contention that the main area of dispute between the Claimant, 1st Defendant and the 2nd Defendant is whether the Claimant's letter of resignation was intended to bring to an end and indeed did bring to an end the contract of service between the Claimant and the 1st Defendant. He submitted that to ascertain the intention of the 1st Defendant and the Claimant on what the 1st Defendant's purpose for the demand for the Claimant's letter of resignation that led to the writing of Exhibit B29, the Claimant invites this Honorable Court to read together the relevant portions of Exhibits B 1, B2, B2(1) and B2(2). a) Exhibit B 1 or AN3 or AE3 under the term PENSION, among others states as follows: "Your (the Claimant's) pension scheme is deemed continuous" b) Exhibit B2 and Exhibit B2 (1) paragraph two among others states as follows: "The bank is however, aware that you will carry on with your years of service from Union Bank (the 1st Defendant) to Union Homes (the 2nd Defendant)". c) Exhibit B2(2) paragraph two among others states as follows: "However, we are aware that the Claimant (Mr. Egbe) will carry on his years of service from Union Bank (the 1st Defendant) to Union Homes (the 2nd Defendant), but we have to serve him out of Union Bank's (the 1st Defendant's) payroll". Counsel cited in support the case of AFRIBANK NIGERIA PLC V ADIGUN [2009] 11 N.W.L.R. (PT 1152) 329 C.A. PAGE 344 PARAGRAPHS F-G on the question whether an action was limited to a specific period or was of a continuous nature gave the meaning of the word "continuous" from the Black's Law Dictionary s" edition page 291 as follows: "Uninterrupted, unbroken, not intermittent or occasional so persistent repeated at short intervals as to constitute virtually an unbroken series connected, extended or prolonged without cessation or interruption of sequence". To counsel, the sentence "Your pension scheme is deemed continuous" in the Exhibit B1 pre¬supposes that the Claimant had an existing pension scheme prior to the date of the above letter of offer of appointment in the 2nd Defendant's service dated 24th February, 1994 as in exhibit B1 or AN3 or AE3 and thus created a lacuna because the 1st Defendant in the face of Exhibit B1 did not disclose the name of the Claimant's employer on the date in the face of the letter of appointment as in Exhibit B1. The 1st Defendant in Exhibit B2 paragraph 2 by inference covered the lacuna in Exhibit B1 under the term Pension in which 1st Defendant did not provide the name of the Claimant's existing employer as at 24th February, 1994 as per the quotation in paragraph 3.3.05(a) above. Counsel applying the above definitions and legal principles enunciated by the Appellate Court inferred thus: a) That the Claimant on 24th February, 1994 was a beneficiary of the lst Defendant's pension scheme in the 1st Defendant's service. b) That the 1st Defendant apart from being a party to the Claimant's then existing pension scheme as at 24th February, 1994 (the date on exhibit B1) had in its capacity as the 2nd Defendant's agent (for the appointment of the Claimant in the 2nd Defendant's service) on behalf of both itself and the 2nd Defendant agreed that the Claimant's existing pension with the l" Defendant is unbroken, uninterrupted, continuing to happen and will exist without stopping with the 2nd Defendant's pension scheme. c) That though the 1st and 2nd Defendants are separate legal entities that ought to operate separate pension schemes for Claimant, the 1st and 2nd Defendants agreed that Claimant’s pension scheme shall be one continuous pension scheme with the 1st and Defendants with all the attendant consequences and subject to the provisions of the applicable pensions scheme. Counsel contends that it is trite that during the life of an existing contract between two or more parties, a fresh document is created and introduced which binds all the parties, one or two different legal positions may emerge. The new document, if made in furtherance of the existing contractual obligations between the parties, may have the effect of modifying or giving effect to the existing contract or if made independently of the existing contract may give rise to independent rights altogether, that are not connected to the original contract. The former of the above two legal principles applies to the instant case, which is that the terms in Exhibits B2 and B2(2) paragraph 2 gave effect to the terms in Exhibit B1 or AN3 or AE3 as it relates to the Claimant's pension deemed continuous in Exhibit B1. He cited the cases of ATTORNEY-GENERAL OF KADUNA STATE V. ATTA [1986] 4 NWLR (PT. 38) 785 C.A.; LEYLAND NIG. LTD, V. DIZENGOLF W.A. [1996] 2 NWLR (PT. 14) 610 AT 620. It is counsel’s submission that where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. That the 1st Defendant's terms and conditions of releasing the Claimant to the 2nd Defendant was that the Claimant shall carry his years of service with 1st Defendant to the 2nd Defendant complemented the term in Exhibit Bl which stated that the Claimant's pension is deemed continuous. The variation and modification of Exhibit B 1 with Exhibits B2, B2 (1) and B2 (2)) satisfies the requirements that a written agreement can only be varied, modified or given effect to by another agreement in writing. Counsel cited the cases of A. G. RIVERS STATE V A. G. AKWA IBOM STATE [2011] VOL 29 WRN S.C. 1.; CBN V IGWILO (supra). Counsel contends that contrary to the submission of the 1st Defendant in its written final address that: " ... had the letter dated 18/4/94 (Exhibit B2) meant to indicate that the employment of the Claimant by the 2nd Defendant should be a continuous one from the 1st Defendant, the letter would have been written to the 2nd Defendant. Rather, the said letter was copied the HRD of the 1st Defendant to compute the Claimant’s terminal benefits” To him the 1st Defendant forwarded copies of Exhibit B2 to the 2nd Defendant and its HRD, as shown in Exhibit B2(1). Since the 1st Defendant copied Exhibit B2 to the 2nd Defendant and based on that the Claimant and the 1st Defendant are by inference in agreement that the 1st Defendant indicated that the employment of the Claimant by the 2nd Defendant is continuous. That the 2nd defendant never raised an objection or challenged the terms in Exhibits B1, B2, B2(1) and B2(2) that expressed and implied that the Claimant is in the continuous employment with the 1st and 2nd Defendants until the 15t and 2nd Defendant's contentions in their statements of defense. Counsel urged the Court to hold that Claimant is in the continuous permanent and pensionable contract of service with the 1st and 2nd Defendants, which commenced on 19th January, 1976 and were wrong and in error to regard the Claimant's continuous contract of service with the 1st and 2nd Defendants, as the Claimant's independent, separate and distinct permanent and pensionable contracts of service, between the Claimant and the lst Defendant on one hand and between the Claimant and the 2nd Defendant on the second hand. As regards issue four, counsel contended that the 1st and 2nd Defendants in their statements of defence are in agreement with the Claimant that the 1st Defendant by the authority and the construction of Exhibit B2 dated 18th April, 1994, among others, released the Claimant to the 2nd Defendant on 25th April, 1994 and demanded for the Claimant's letter of resignation from the 1st Defendant's employment resignation dated 29th April, 1994 from the 1st Defendant's service. He submitted that a close perusal of both Exhibit B2 show that none of the two Exhibits has on its face the terminal date or any terminal date with which to bring to an end the contract of service between the 1st Defendant and the Claimant. This assertion was corroborated by the 1st Defendant's witness under oath. Continuing counsel submitted that the 1st Defendant and the Claimant's concurrent exclusion of the terminal dates in both Exhibit B2 and Exhibit B29; that based on the terms and interpretations of the two Exhibits, it would be pre-mature, unthinkable and absurd to contemplate that the Claimant's letter of resignation from the 1st Defendant's service as in Exhibit B29 was intended to and did bring to an end the Claimant's continuous contract of service with the 1st Defendant on 31st August, 1994. Reference was made to 1st Defendant's in its statement of defense paragraph 19 which states thus "The 1st Defendant's letter of 8th April, 1994 (Exhibit B2(2) paragraph 2) is very explicit. The 1st Defendant was to serve the Claimant off its pay roll ... ". Counsel stressed that the terminal date for the Claimant's continuous contract of service with both the 1st and 2nd Defendants as intended by the parties in Exhibits B2, B2(1), B2(2) and B29 is a date in the future and by inference is expected to be determined either on the date the Claimant voluntarily retires from the 2nd Defendant's service or the Claimant is lawfully, validly and effectually retired from the 2nd Defendant's service by the 2nd Defendant and none of these events has as at date happened. That the 1st Defendant was wrong and in error in its contentions (in paragraphs 17, 19, 21, 26 and 28 of the 1st Defendant's Statement of Defence that its intention to serve the Claimant out of its pay roll was to bring to an end the contract of employment between the Claimant and the 1st Defendant as this is a clear attempt by the 1st Defendant to smuggle in new intentions and words that the 1st Defendant never expressed or intended when the it wrote Exhibit B2(2) on 18th April, 1994 and thus mislead this Court. Counsel urged the Court to give effect to the intention of the 1st Defendant in Exhibit 2(2) dated 8th April, 1994. It is contended that the 1st Defendant was wrong to unilaterally adopt 31st August, 1994 in Exhibit B5 paragraph 1 lines 1-3 (a date which was never on the face of Exhibit B29) as the Claimant's effective terminal date of service with the 1st Defendant. exhibit B5 paragraph 1 lines 1-3 stated as follows "Mr. Egbe sequel to the resignation of his appointment with effect from 31st August, 1994". Counsel cited the Supreme Court in the case of CENTRAL BANK OF NIGERIA (CBN) V IGWILO; supra @ PAGE 393 PARTICULARLY PAGE 432 PARAGRAPHS F-H, per Ogbuagu, J.S.C. held " ... the acceptance by the 1st Appellant of the Respondent on transfer of service the inevitable inference or conclusion by me is that the 1st Appellant will take into consideration the Respondent's 18years service before he was employed by the 1st Appellant and thus the Respondent will certainly not be a fresh employee of the 1st Appellant under probation. I so hold. To treat him or regard him as newly recruited employee should be a very wicked thing to do and of course such contention by the Appellants will be unjust, unconscionable, made in very bad faith and unacceptable to me in view of or in the face of all the available concrete evidence and documents before the trial court. Speaking for myself the letter of appointment which included that of probation, I believe, may be a general format in the offer, of employment to new/fresh employees.” Counsel urged the Court to hold that the Claimant's letter of resignation to the 1st Defendant dated 291h April, 1994, as in Exhibit B29 was not intended and did not bring to an end the contract of service between the Claimant and the 1st Defendant as the 1st Defendant's demand for Claimant's resignation and the Claimant's letter of resignation from the 1st Defendant's service, which excluded terminal dates, were not intended to bring to an end and did not bring to an end the continuous permanent and pensionable contract of service between the Claimant and the 1st Defendant on 31st August, 1994, but to serve the Claimant out of the 1st Defendant's pay roll and not more. That if the 1st Defendant had intended that the Claimant's letter of resignation (as in Exhibit B29) was to bring to an end the contract of service between the Claimant and the 1st Defendant on 31st August, 1994, the 1st Defendant would have clearly, expressly and unequivocally said so by including the Claimant's terminal date of service with the 1st Defendant in its letter of demand for the Claimant's resignation in Exhibit B2 (2). On issue five, counsel submitted that the lst Defendant and the Claimant are in agreement that the Claimant commenced work with the 1st Defendant on 19th January, 1976. The 2nd defendant admitted that the Claimant resumed in the 2nd Defendant's service on the 25th of April, 1994. That the 1st Defendant as in Exhibit B5 based its distinct, separate and independent calculation or measure of the Claimant's gratuity and pension on the following elements: a) Date of commencement of service: 19th January, 1976 (as per the heading of Exhibit B5). b) Purported terminal date of service with the 1st Defendant: 30th August, 1994 (as in heading of Exhibit B5) or 31st August, 1994 (as in paragraph one lines 1-3 of Exhibit B5). c) Purported years of service: (b) minus (a) which is 31st August, 1994 minus 19th January, 1976 which equals 18years 7months 12days, approximately 19years. d) Total annual terminal emoluments in the 1st Defendant's pay roll as at purported terminal date: #144,589.00 (see Exhibit B5) whereas the Claimant's total emoluments in the 2nd Defendant's service was #296,000 (as in Exhibit B 1 page one with effect from 25th April, 1994 up to 31st August, 1994). e)(i) Applicable gratuity percentage in the gratuity and pension table in the 1st Defendant's handbook: 210% ii) Applicable pension percentage in the gratuity and pension table in the 1st Defendant's handbook: Not disclosed in Exhibit B5. f) Part Gratuity calculated and paid in December, 1998: #303,638.90. Product of e(i) multiplied with (d) above. g) Deferred annual pension calculated in December, 1998 and payment commenced with effect from 6th November, 2001: #187,200.00. Product of (e)(ii) multiplied with 3.5.04(d) Counsel then stated that the 2nd Defendant as in Exhibit B8 based its distinct, separate and independent computation or measure of the Claimant's gratuity and annual pension on the following elements: a) Commencement date: 25th April, 1994 (as in Exhibit AE5 lines 5-6). b) Purported terminal date of service with the 2nd Defendant: 30th December, 2008 (Exhibit B 1 0). c) Purported years of continuous service: 30th December, 2008 minus 25th April, 1994 equals 14years 8months 6days which is approximately equal to 15years service ((b)-(a) above). d) Total annual terminal emoluments as at purported terminal date: #12,046,820.00 (Exhibit B8 or AE6). e)(i) Applicable gratuity percentage in the gratuity and pension table in the 2nd Defendant's handbook: 140% (Exhibit B7 or AE7). ii) Applicable pension percentage in the gratuity and pension table in the 2nd Defendant's handbook: 40% (Exhibit B8). f) Part Gratuity calculated and paid in January, 2009: #17,369,548.00 (Exhibits B8 and B27 line 48 dated 3rd February, 2009). Product of paragraph e(i) multiplied with (d) above. g)(i) Part annual pension calculated on 30th December, 2008 and payment commenced on 1st January, 2009: #4,962,728.00. Product of e(ii) multiplied with (d). ii) The 2nd Defendant paid the last monthly pension to the Claimant in October, 2011 and unilaterally stopped the payment of monthly pension to the Claimant with effect from November, 2011. It is submitted that the preliminary question therefore is whether the gratuity and annual pension of the Claimant in the continuous contract of service with the 1st and 2nd Defendants shall be calculated separately as applied by the 1st and the 2nd Defendant. He also contends that the Claimant's continuous contract of service ought to be computed together of which only the commencement date is available as at the date of the Claimant's final written address. The variables are as follows: a) Commencement date: 19th January, 1976, when the Claimant commenced work with the 1st Defendant. b) Terminal date of service with the 2nd Defendant: Not available, (as neither the Claimant nor the 2nd Defendant has taken the positive action of bringing to an end the contract of service between the Claimant and the 2nd Defendant). c) Years of service in the continuous service of the 1st and 2nd Defendants: Not available as contract of employment is yet to be terminated. d) Total annual terminal emoluments as at terminal date of service: Not available, (total annual terminal emoluments as at terminal date of service with the 2nd Defendant but the Claimant's terminal date of service with the 2nd Defendant is not determined). e)(i) Applicable gratuity percentage in the gratuity and pension computation table, that is the maximum number of years of service in Exhibit AE7 page 9 schedule 1 which is 35 years of service and the applicable percentage is 300% of total annual terminal emoluments: Gratuity amount not available as at today because the terminal total annual emoluments shall be ascertained as at the terminal date of service which at present is not available. ii) Applicable pension percentage in the gratuity and pension computation table, that is the maximum number of years of service in Exhibit AE7 page 9 schedule 1 which is 35 years of service and the applicable percentage is 80% of Total annual terminal emoluments: Annual pension amount is not available because the terminal total annual emoluments is not available at present and shall be ascertained as at date of valid, lawful and effectual terminal date of service. Counsel submitted that without the valid and effectual Claimant's terminal date of service with the 2nd Defendant it will be impossible to ascertain the figures with which the 2nd Defendant will compute the figures for the claimant’s emoluments. He also submitted that pursuant to the provisions of Pension Reform Act and based on the 2nd Defendant's SPF IGPS in Exhibit AE7, page 9 schedule 1 the Claimant's gratuity and annual pension in full for the Claimant's continuous years of service with the 1st and 2nd Defendants shall be calculated together and not separate and distinct as contended by the 1st and 2nd defendant. The Claimant urged the Honorable Court to so hold. Counsel submitted that 1st Defendant in Exhibit B5 under the misapprehension and mistake that the Claimant resigned from the it's service with effect from 31st August, 1994 and the 2nd Defendant in Exhibit B8 under the misapprehension and mistake that it validly, lawfully and effectually retired the Claimant from its service with effect from 30th December, 2008 (as in Exhibit B10) computed and paid both part gratuity of #303,636.90 (Exhibit B5) by 1st Defendant and #17,369,548 by 2nd Defendant (Exhibit B8) and the 1st Defendant commenced the payment to the Claimant part annual pension with effect from 6th November, 2001 to date and the 2nd Defendant commenced the payment of part annual pension with effect from 1st January, 2009 and stopped in October, 2011. The Claimant submitted that he served the 1st Defendant from the 19th January, 1976 to 19th January, 2014 attained 38 years in the continuous years of service with the 1st and 2nd Defendants on 19th January, 2014 but the gratuity table provides for a maximum of continuous 35 years of service. Therefore the applicable gratuity and annual percentages for 35 years continuous years of service, as in Exhibit AE7 page 9 schedule 1, shall be applied to the Claimant's total terminal annual emoluments determined as at the terminal date of his service with the 2nd Defendant to arrive at the Claimant's entitlement to gratuity and annual pension in full. Thus the Claimant's valid, lawful and effectual terminal date of service from the continuous contract of service with the 1st and 2nd Defendants was not available to either the 1st or 2nd Defendants on either 30th/31st August, 1994 or 30th December, 2008 which the 1st Defendant and the 2nd Defendant respectively, adopted as the terminal dates for each Defendant's independent, separate and distinct computation of the Claimant's part gratuity and part pension. Counsel assuming without conceding that the 2nd Defendant's purported retirement of the Claimant with effect from 30th December, 2008 was valid, lawful and effectual, the Claimant's continuous years of service with the 1st and 2nd Defendants ought to be 33(thirty three) years of service. He submitted that based on the 2nd Defendant's purported retirement of the Claimant with effect from 30th December, 2008 and the 1st Defendant in Exhibit 8 stated that the Claimant's terminal annual total emolument was #12,406,820. Counsel stated that Exhibit AE7 the 2nd Defendant's Staff Provident Fund/Gratuity Pension Scheme (2nd D's SPF/GPS) page 9 titled Schedule 1 provides the table for the computation of gratuity and the gratuity for 33 years of service ought to be as follows: YEAR (sic) END of service Gratuity expressed Annual pension expressed as a of service As % of final pensionable salary % of final pensionable salary 33 284% 76% Counsel applying the applicable percentage (%) for gratuity and pension in the Staff Provident Fund/Gratuity Pension Scheme, the money worth of Claimant's gratuity and annual pension for 33 years of continuous service would have been as follows; Computation (as at 30th December, 2008) of Claimant’s Gratuity and Annual Pension i) Claimant’s purported terminal annual total emolument as given #12,406,820 #12,506,820 ii) Multiplied with % extracted from 2nd Defendant’s SPF/GPS page 9 284% 76% iii) Equals #35,235,368.80 #9,429,183.20 That the 1st and 2nd Defendants invalid computation and payment of gratuity and annual pension as at December, 1998 and December, 2008 are as follows; Gratuity Annual Pension i Figures computed and paid by the 1st Defendant #303,638.90 #187,200.00 ii Add Figures computed and paid by the 2nd Defendant #17,369,548.00 #4,962,728.00 iii Total equals #17,673,186.90 #5,149,928.00 Counsel assuming without conceding that the 2nd Defendant validly, lawfully and effectually retired the Claimant with effect from 30th December, 2008, the difference between the gratuity and annual pension figures computed for the Claimant's continuous 33(thirty three) years of service with the 1st and 2nd Defendants and the consolidated Defendants separate, independent and distinct computations of the Claimant's gratuity and annual pension figures are as follows: Gratuity Annual Pension i Figures computed by the Claimant #35,235,368.80 #9,429,183.20 ii LESS Defendants consolidated figures #17,673,186.90 #5,149,928.00 iii Total equals #17,562,181.90 #4,279,255.20 Counsel assuming without conceding that the 2nd Defendant retired the Claimant with effect from 30th December, 2008 and based on the differences in figures for gratuity at #17,562,181.90 and annual pensions at #4,279,255.20, it is evident that the Defendants did not pay in full the Claimant's entitlement to gratuity and annual pension for the Claimant's continuous 33years service with the 1st and 2nd Defendants. The Claimant's computation of gratuity and annual pension based on the Claimant's continuous contract of service with the lst and 2nd Defendants is supported by the rules in Exhibit AE7 paragraph 8 which is the 2nd Defendant's SPF/GPS and which provides as follows: "For the purpose of computation and payment of benefits under the rules, it is only continuous and unbroken period of service that shall be taken into account. However, any break in an employee's service that is condoned or merged by UHSL (the 2nd Defendant) would count for the purpose of paying pension and gratuity". Counsel submitted that the Managing Director/Chief Executive (MD/CE) of the 2nd Defendant, Chief O. N. Chionuma (CONC) pressurized and directed him to write the letter of demand and the reminder to the 1st Defendant to pay his gratuity as in Exhibits B3 and B4 or Exhibits AN6 or AN7. Counsel contended that a comparison of the names of the members of the 2nd Defendant's Board of Directors in Exhibits B 10 dated 30th December, 2008 and B 11 dated 30th April, 1998 show that CONC's name is printed in Exhibit B11 and is not printed in Exhibit BI0. This is the circumstantial evidence that CONC was not in the 2nd Defendant's service in 2008, the year when the 2nd Defendant's witness commenced employment in November, 2008 with the 2nd Defendant and August, 2009 when the 1st Defendant's witness commenced employment with the lst Defendant. Therefore the Defendants witnesses did not physically see or hear CONC giving or not giving the pressure and directive to the Claimant to write Exhibits B3 and B4. Under cross examination the 2nd Defendant's witness said she joined the 2nd Defendant on 10th November, 2008 and that she never contacted CONC with regards to the Claimant's contention that CONC pressurized and directed him to write Exhibits B3 and B4 and stated as follows: “It is not correct that I have never met Chief O. N. Chionuma. I met him at a social function and not as Managing Director. I got to know about this case in 2011. I did not meet Chief Chionuma nor wrote a letter to him in that regard”. The 1st Defendant's witness during cross examination said he joined the 1st Defendant in August, 2009, said he does not know Chief O. N. Chionuma (CONC) and there is no record he ever contacted CONC on the Claimant's contention as restated in paragraph 3.5.13(1) above. In answer to a question during cross examination the 1st Defendant's witness stated unequivocally on quote: "I don't know Chief O. N. Chionuma”. Counsel further contended that the 2nd defendant’s witness under oath stated that; "The 2nd Defendant's Managing Director/Chief Executive at all times material to the events relating to this case is O. N. Chionuma Esq. (CONC) and I state that the said Managing Director did not direct nor pressurized the Claimant orally or in writing to write his letter dated 7th May, 1997 and 5th November, 1998 (which are Exhibits B3 and B4 or AN6 and AN7)". Also the 1st Defendant's witness averred in his written deposition on oath that; "The Claimant was not directed or pressurized to write the letters of demand dated 7/5/97 and 5/11/1998 (Exhibits B3 and B4 or AN6 and N7) as alleged or at all”. The claimant submitted that there is no written documentary evidence, no record of any oral testimony or affidavit averred to by CONC denying or challenging the Claimant's averment that CONC pressurized him to write Exhibits B3 and B4. the 1st and 2nd Defendants witnesses depositions on oath as it relates to the Claimant's averment that CONC pressurized and directed him to write Exhibits B3 and B4 are at best hearsay evidence and do not fall within the exceptions to the hearsay rule in the Evidence Act 2011 as amended section 115(3) which provides as follows: "Where a person deposes to his belief in any matter of fact, and his belief is derived from any other source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief”. Claimant urged the Court to so hold and to discountenance the Claimant's demand as in Exhibits B3 and B4 since the Exhibits were written as a result of CONC's, (the 2nd Defendant's Managing Director/Chief Executive) undue pressure and directive to his subordinate the Claimant. Counsel submitted that the Claimant after resuming in the 2nd Defendant's service on 25th April, 1994 addressed his letter of resignation in Exhibit B29 dated 29th April, 1994 direct to the 1st Defendant but the letters in Exhibits B3 and B4 were addressed to the 1st Defendant through the 2nd Defendant's MD/CE, CONC. The Claimant had no reason to write and route Exhibits B3 and B4 through the 2nd Defendant to the 1st Defendant but for CONC's undue pressure and directive and the 1st Defendant in the correspondence communicating the computation of the purported Claimant's gratuity and pension as in Exhibit B5 never referred or mentioned any letter of demand for the payment of gratuity as in Exhibits B3 or B4. He also submitted that the 1st Defendant knew that the Claimant was in the 2nd Defendant's service and not in the 1st Defendant's service on 31st August, 1994 and was wrong and in fundamental error as there is no such date as 31st August, 1994 on the face of the Claimant's letter of resignation as in Exhibit B29 or AN4 or AE4 when it stated in Exhibit B5 that: "We advise that a gratuity of #303,636.90 has been approved for Mr. Egbe sequel to the resignation of his appointment with effect from 31st August, 1994. The 2nd Defendant in disobedience to the rules in Exhibit AE7 paragraph 14 which is the 2nd Defendant's SPF/GPS after the payment of the Claimant's part monthly pension from January, 2009 to October, 2011 stopped its part payment of the Claimant's monthly pension in October, 2011. Exhibit AE7 paragraph 14 provides as follows: "Pension and gratuity awarded under the rules shall be regarded as an employee's inalienable right and shall, under no circumstances be withheld or reduced .... " Claimant urges this Honorable Court to hold as follows: 1) That the 1st and 2nd Defendants independent, distinct and separate computation and payments of gratuity and pension to the Claimant in December 1998 and December, 2008 respectively were not the lawful, valid and effectual computation and payment in full of the Claimant's entitlement to gratuity and pension for the Claimant's years of continuous contract of service with the 1st and 2nd Defendants. 2) That the 1st and 2nd Defendants independent, distinct and separate computation and payments of gratuity and pension to the Claimant in December 1998 and December 2008 and the Claimant's receipt of the payments were void, null and of no legal effect on grounds of common mistake. 3) That the Claimant is entitled to the 1st and 2nd Defendants computation and payment in full of the Claimant's entitlement to gratuity and pension for the Claimant's years of continuous contract of service with both the 1st and 2nd Defendants which commenced on 19th January, 1976 and at the discretion of this Honorable Court may be brought to an end on the date of judgment or by the valid, lawful and effectual action to terminate the contract of service by either the Claimant or the 2nd Defendant. 4) That Chief O. N. Chionuma (CONC) pressurized and directed the Claimant to write the letters of demand and reminder to the 1st Defendant (as in Exhibits B3 and B4) for the 1st Defendant to pay his gratuity and pension and the demand and its reminder are hereby discountenanced on grounds of undue pressure and superior's undeserved directive. 5) The Defendants contentions that no person or that CONC did not pressurize and direct the Claimant to write Exhibits B3 and B4 fails and the 1st and 2nd Defendants denials and traverses fails because the denials and traverses lack merit and are baseless. 6) That based on the 2nd Defendant's SPF/GPS as in Exhibit AE7, the normal retirement date for the Claimant, a male, in the 2nd Defendant's service is 60 (sixty) years. On issue six, counsel stated that the list of the Claimant's approved emoluments are as in Exhibits B1, B12, B13 and B14 applicable to Deputy General Manager (DGM) particularly Exhibits B12, B13 and B14 were and served on the 1st and 2nd Defendants to produce the certified copies of the extracts of the meetings of 2nd Defendant's Board of Directors in 2000, 2005 and 2007 where the approved staff emoluments in Exhibits B 12, B 13 and B 14 were made and recorded but the 2nd Defendant never produced the certified copies of the extracts above minutes. He also stated that the 2nd Defendant in its statement of defense paragraphs 11, 16 and 18 was wrong and in error when it stated that the 2nd Defendant retired the Claimant on 30th December, 2008 and that the Claimant was no longer in the 2nd Defendant's employment as at 1st January, 2009 and therefore not entitled to the following: i) #5,536,800 or its U.S. Dollar equivalent as annual overseas medical allowance (paragraph 11(a)). ii) The Claimant in retirement is not entitled to enjoy annual free overseas medical allowance (paragraph 11 (b)). iii) The Claimant is not entitled to the payment of warm clothing allowance (paragraph 11(c)). iv) The Claimant is not entitled to 3,000 diesel per quarter for the Claimant's use in his house/residence from 1st January, 2009 (paragraph 16); and vi) The Claimant is not entitled to the relief sought in paragraph 4(a) of the claims (paragraph 18). The 2nd Defendant in the notification to the Claimant dated 9th January, 2006 Exhibit 19 advised the Claimant of the payment of overseas medical allowance by way of credit into the Claimant's account in year 2006 in a year when the Claimant never travelled out of Nigeria. The 2nd Defendant's payment of warm clothing allowance and other allowances denominated in dollars in Exhibits B 12, B 13 and B 14 are paid as a matter of routine and not when the 2nd Defendant's staff go to cold weather overseas countries as alleged by the 2nd Defendant. Counsel submitted that the claimant’s contract of service with 2nd Defendant based on Exhibit BI0 did not come to an end on 30th December, 2008 and has not come to an end so the Claimant is entitled to all the claims. Counsel also submitted that the 2nd defendant submission that claimant's claims were privileges is wrong as there is no word such as privilege or privileges in any of the Exhibits indicating the Claimant's emoluments at different times in his contract of service with the 2nd Defendant. In all the documentary evidence as in Exhibits B1-B31, AN1 AN7 AE1-AE15 in the contract of service between the 2nd Defendant and the Claimant, the word privilege or its plural privileges never appeared in any of the Exhibits. Counsel urged the Court to discountenance the 2nd Defendant's attempt to smuggle in words privilege or privileges that never existed in the lexicon contract of service between the Claimant and the 2nd Defendant and hold that the Claimant is entitled to all the cars and related allowances as in the Claimant's claims. Counsel submitted that the 2nd Defendant did not put in evidence before this Honorable Court, any documents, in either their original copies or in their permissible and acceptable secondary forms to support its pleadings in paragraphs 7,8,9,11,13,14,15 and 20 i) The 2nd Defendant's did not put in evidence before this Honorable Court its letter of compulsory retirement of the Claimant in February, 2009 connected to paragraphs 7, 8 and 15 of its statement of defense. ii) The 2nd Defendant in paragraphs 14 and 15 of its statement of defence did not state the registration numbers of the said two other vehicles and the names of the said two drivers of the alleged two other vehicles said to have been made available to the Claimant and did not support its responses with documentary evidence before this Honorable Court. iii) The 2nd Defendant did not put in evidence before this Honorable Court, either its letter indicating the staff conditions of service nor any other documentary evidence in support of paragraphs 9 and 20 of its statement of defense, that once the 2nd Defendant unilaterally retires the Claimant, the Claimant is automatically disentitled to all his outstanding leave days and full emoluments during the period of the outstanding leave days. iv) The 2nd Defendant's witness in page 15 lines 30-31 said that there is no 2nd Defendant's document that says that you don't grant leave before you retire. Therefore the Claimant and the 2nd Defendant are in ad idem that the 2nd Defendant must grant the entire Claimant's outstanding leave days before it retires the Claimant and by implication pay the Claimant's emoluments in full during the leave period. The 1st Defendant in April 1994 Exhibit B2(1 ), did not grant the 1993 and 1994 leave days or holidays to the Claimant and by default chose to grant the 1993, 1994 and terminal leave days or holidays as part of the Claimant's terminal leave in the 2nd Defendant's service. Therefore the cause of action for the Claimant's claims for the years 1993, 1994, 2008 and terminal leave days or holidays and the 1st and 2nd Defendants payment of leave allowances and emoluments in full for the period of the outstanding leave days or holidays accrued on 30th December, 2008 when every fact which was necessary for the Claimant to prove, if traversed to support his case arose from. Therefore the Claimant's claims for his outstanding years 1993, 1994, 2008 and terminal leave days and payment in full of the Claimant's emoluments for the period of the aforementioned leave days or holidays which arose on 30th December, 2008 are not statute barred. Claimant urged the Court to hold that the Claimant is entitled to the Defendants fulfillment of all the outstanding statutory, contractual and equitable emoluments as claimed by the claimant. Citing the case of ADIMORA V AJUFO [1988] 1 NSCC 1005 @ 1008 Lines 3-15; OHAKIM V AGBASO [2010] 19 N.W.L.R. (Pt 1226) 172 @ pages 259 and 260 paragraph H-A, it is counsel’s contention that the cause of action in this case accrued on 31st December, 2008 when the facts showed that the 1st and 2nd Defendant's refused, failed and did not intend to fulfill their outstanding statutory, contractual and equitable obligations to the Claimant before the 2nd Defendant's purported retirement of the Claimant with effect from 30th December, 2008. That the action in the instant case commenced on 23rd December, 2011 and the Limitation Law of Lagos State CAP L67 Part 2 section 8(1) stipulates as follows: "The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued"; That the difference between the date of commencement of the instant case that is 23rd December, 2011 and the date the cause of action of the instant case accrued on 3151 December, 2008 is approximately three years and thus not caught up by the provisions of the Statute of Limitation of action law and the Limitation Law does not apply in the instant suit. Counsel urged the Court to hold that the Limitation Law does not apply and the reliefs for the Claimant's claims are not statute barred. It is the contention of counsel that the 2nd Defendant with effect from 30th December, 2008 after its purported letter of retirement made it impossible for the Claimant to perform his obligations in the 2nd Defendant's service under the continuous contract of service between the Claimant and the 1st and 2nd Defendants as required by law and contract. He submitted that by the equitable maxim which states that he who comes to equity must come with clean hands invariably requires that the 2nd Defendant should grant all the Claimant's outstanding annual leave and terminal leave days up to the Claimant's date of valid, lawful and effectual retirement by the 2nd Defendant. On issue seven, counsel contended that the Claimant's claim for interest on the monetary reliefs for the Claimant's claims against the 1st and 2nd Defendants are based on equity relying on the trade usage and customs applicable to the 1st and 2nd Defendants who pay interest on deposits in their books and take interest for lending funds to borrowers of funds from the Defendants and the legal principle that the wrong doer should not be allowed to benefit from its own wrong. The interest rate claim is based on the range of interest rates the 1st and 2nd Defendants charge their borrowing customers which were between 20-25% per annum by the 1st Defendant and 20- 24% per annum by the 2nd Defendant. The Claimant also contended that the 1st Defendant failed to produce the original copy of its Head Office Interest Rate Circular sent to its branches for the period December, 2011 to November, 2012. Counsel stated that the 1st Defendant in its statement of defense filed with this Honorable Court on 1st November, 2012 stated that Claimant's claims against the 1st Defendant are statute barred but never contested the Claimant's interest claims. The 2nd Defendant in its statement of defence asserted same did not and never challenged the Claimant's claims for interest on monetary reliefs. Counsel submitted that the 1st and 2nd Defendants by the provisions of the Evidence Act 2011 section 123 are deemed to have admitted that the Claimant is entitled to interest on the monetary reliefs of his claims and the facts need no further proof. He cited in support the case of NIGERIAN DEPOSIT INSURANCE CORPORATION V ECOBANK (NIGERIA) LTD [2003] 11 N.W.L.R. PT 830 PAGE 107 PARAGRAPHS B-D, the court held that "interest means the sum payable in respect of the use of another person's money”. Also the case of ADEYEMI V LAN & BAKER (NIGERIA) LTD [2007] 7N.W.L.R. PT 663 C.A 33, PAGE 48 PARAGRAPHS D-E, the court held that "An award of pre-judgment interest must be based on Statute, contract, mercantile custom or equity, provided the plaintiff pleads the basis and leads satisfactory evidence in support of his claim. A plaintiff is also entitled to interest in a claim for the return of money arising from a commercial transaction where the defendant has held the money of the plaintiff for some time. In a situation arising from commercial matters, a party holding on to the funds of another for so long without justification ought to pay him compensation for so doing”. Counsel submitted that the payment of interest for late remittance of the Claimant's monthly pension savings account is statutorily provided in the Pension Reform Act. That the principles in the case of A.G. FERRERO & CO LTD. V HENKEL CHEMICALS (NIGERIA) LTD. is distinguishable from the facts of the instant case, as the Defendants in the instant case are in the business of paying interest for their customers monies in their possession and earning interest from their customers for their monies in their customers possession. He cited Sections 29 and 24(a) of the Companies Income Tax Act (CITA) CAP 21 LFN as amended respectively which provides that taxation is paid on annual profits and that interest costs are deductible from revenue to arrive at basis for computing annual profits. Claimant contends that the above provisions of CITA support the Claimant's annual basis for the computation of the Claimant unchallenged claims for interest as there is no doubt that interest rate computation on compounded basis is the more accurate way of compensating the Claimant for his monies held by the 1st and 2nd Defendants and kept out of the Claimants use and placing the facts of the instant case on the applicable legal principles enunciated by the courts on claims for interest above, the Claimant ought to be compensated by the 1st and 2nd Defendants for keeping the Claimant out of the use of his money for each of the claim and by inference lending such Claimant's withheld funds to their borrowing customers and earning interest from the funds lent. Counsel urged the Court to hold that the Claimant is entitled to pre-judgment interest at 21% per annum compounded and post judgment at 18% per annum compounded until the date the 1st and 2nd Defendants pay in full the awards for the monetary reliefs for the Claimant's claims and interest there on. On issue eight, counsel submitted that he incurred considerable costs for instituting and prosecuting the matter and deserves to be adequately compensated to the tune of at least #1,000,000.00 (one million naira) including a token fee of about #111,300 (one hundred and eleven thousand three hundred naira) for the Claimant. He cited in support the case of SOGUNRO V YEKU [2003] 12 N.W.L.R. PT 853 Pages 644-667 Particularly Page 667 Paragraph A; INT’L OFFSHORE CONSTRUCTION LTD V SHORELINE LIFT-BOATS NIGERIA LTD C.A. 157 [2003] 16 N.W.L.R. PT 845 PAGES 157-182 Particularly Page 179 paragraphs A-D the court held that under Nigerian Laws expenses incurred on services of counsel are reasonably compensated. Thus costs will be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel cost is usually awarded for a leader and one or two juniors. Counsel urged the Court to award considerable costs against the Defendants to compensate the Claimant for costs incurred in instituting this action. The 2nd defendant on the 15th of October filed its reply on points of law wherein he raised a sole issue for the court’s determination; 1. Whether the claimant has shown a good cause why the evidence of the 2nd defendants witness should be regarded as hearsay evidence. On this issue, counsel refers the Court to the submission of claimant in its Written Address where he submitted that the 2nd defendant’s witness did not give evidence of facts within her personal knowledge therefore her testimony should be regarded as hearsay. Counsel submitted thus that a company as a juristic person can only act through its agents and servant and also give any evidence in Court to establish any transaction entered into by the company. He submitted that such evidence is nevertheless relevant, admissible and will not be hearsay. He cited FBN PLC V TSOKWA [2004] 5 NWLR (PT 866) P 271; KATE ENERPRISE V DAEWOO (NIG) LTD [1985] 2 NWLR (PT. 5) 116. After a careful and indepth consideration of the processes filed by the parties, the sworn deposition of the witnesses and oral testimonies, the argument of counsel to the claimant and defendants and the authorities relied upon. In my view the issues for determination are as follows: 1. Whether or not the 1st defendant is the agent of the 2nd defendant for the purpose of employment of the claimant in the employment of the 2nd defendant. 2. Whether the claimant’s employment is deemed continuous in the 1st and 2nd defendant employment for the purpose of calculating his entitlements. 3. Whether or not the claimant’s employment with the 2nd defendant was lawfully terminated 4. Whether or not the claimant has proven his claims to be entitled to same. Before going into the merit of this case, it is germane to outline these facts as revealed by the evidence before the Court; 1. That the claimant commenced work in the 1st defendant's bank on 19th January, 1976 and retired vide his letter of resignation dated 29th of April, 1994 received and acknowledged by the 1st defendant on 5th May, 1994, which letter determined his employment relationship with the 1st defendant; 2. That the claimant sought for employment in the 2nd defendant's bank, vide a written application of employment dated 6th September, 1993, he was invited for interview and was given offer of appointment vide a letter dated 24th February 1994; See exhibits AN1, AN2 and AN3. 3. That although the 2nd defendant is a subsidiary of the 1st defendant, but are two separate legal entities, each has separate corporate names and different Board of directors, each can sue and be sued in its corporate name. 4. That upon resignation from the 1st defendant, the claimant demanded for his gratuity and terminal benefits from the 1st defendant vide letters dated 7th May, 1997 and 5th November, 1998 respectively, and the 1st defendant in turn paid the sum of N303,636.90 as gratuity and a deferred pension of N59,281.49 per annum when he attains age 45 years which was on 6th November, 2001 received and acknowledged by the claimant. See exhibits B3, B4 and B5; 5. That the claimant was compulsorily retired by the 2nd defendant on 30th December 2008 and was paid his gratuity and pension, claimant received and acknowledged it; 6. That the claimant entered into a separate and distinct contract of service with the 1st and 2nd defendants at different times. 7. That there is no document on record to substantiate claimant's claim for medical checkups abroad after the determination of his contract of service with the 2nd defendant. It is pertinent to also sort out at this preliminary stage the issue of whether or not the claimant's claims are statute barred. It is the contention of the 1st defendant that claimant's claims against it are otiose or differently put stale. That a claim of 1993 is not maintainable in law in 2011. It is the reaction of the claimant on the other hand that his claims are still alive. I agree with both the 1st defendant and the claimant that by Section 8(1) of the Limitation Law of Lagos State, a claim under a simple contract of which this case is one, shall not be made after 6 years of the accrual of the cause of action. Claimant's claims against the 1st defendant's are as highlighted earlier in this judgment; in sum they are for 1993 unclaimed leave. The position of the law as regards claims of a claimant is as stated supra in this judgment. Id est once the claim/s exceeds 6 years of the accrual of the cause of action, the claimant is barred from instituting an action on same. The implication of this is that the claimant is barred from instituting an action for the claim for a leave unclaimed since 1993 whilst in the 1st defendant's employment. The claimant's claim for unclaimed 1993 leave is stale and thus statute barred. I so hold. As regards the claims against the 2nd defendant, I wish to state without any equivocation that, it is not statute barred, considering the date he was retired from its employ, he was retired on 30th December, 2008 and the claimant filed this suit on 23rd December, 2011, that is 3 years after the accrual of the cause of action, which makes it safe from the web of the limitation law of Lagos State. Consequent upon which, I also hold that the claims of the claimant against the 2nd defendant is not barred. Now, On issue one, it is the contention of claimant that he was employed by the 1st defendant on the 19th of January, 1976. That 1st defendant in a letter dated 24th of February, 1994 offered the claimant an appointment in the 2nd defendant’s service to the position of Assistant General (AGM) banking operations and in a subsequent letter dated 18th April, 1994 the 1st defendant released the claimant from its service to resume with the 2nd defendant on 25th April, 1994. That sequel to been released by the 1st defendant to the service of the 2nd defendant, he resigned from the employment of the 1st defendant vide a letter dated 29th of April, 1994. It is the contention of the 1st defendant that the claimant did not join the employment of the 1st defendant as averred by the claimant. The 1st defendant also denied the authorisation of the letter dated 24th of February, 1994 and stated that the claimant vide a letter dated 6th of September, 1993 applied for a job with the 2nd defendant, he was invited for an interview by the 2nd defendant vide a letter dated 6th October, 1993 and subsequently offered appointment in the employment of the 2nd defendant on the 24th of February, 1994. It is on record that the 2nd defendant though a subsidiary of the 1st defendant, is a corporate body having its own separate and distinct personality from the 1st defendant this was further admitted by the claimant in paragraph 4 of his statement on oath. Exhibits B1, B1 (1) dated 24/02/94 and 24/03/94 respectively reveal that though the letter head of the 1st defendant as the parent company was used, it was duly authorised and signed under the hand of one Mr O.N Chionuma for and on behalf of the 2nd defendant and the circumstances surrounding the claimant’s employment into the 2nd defendant’s company ranging from his application for job, the interview thereof and subsequently, his offer of employment into the company of the 2nd defendant and most importantly Exhibits B30 dated 13/5/94 which was neither challenged or controverted by the claimant all go to show that the claimant has not succinctly established before this court that the 1st defendant acted as the agent of the 2nd defendant for the purpose of employment of the claimant. The law is basic that Once the procedure adopted by both parties was agreeable by them from inception, it is late in the day for a party to state the contrary. It is well settled that he who acts through another acts for himself. This is expressed in the Latin maxim - quid facit per alium facit per se. When an agent acts on behalf of a disclosed principal it is only the latter that is liable. In this case assuming that the 1st defendant acted as an agent to the 2nd defendant for purposes of recruiting the claimant, the 2nd defendant acted for itself, hence he is to be sued and not the 1st defendant. The 1st defendant is not and cannot be liable for any act or an inaction of the 2nd defendant. It is also plain on record and was reiterated during trial that the 2nd defendant at the time of employing the claimant had to use the 1st defendant's letter headed papers because it has not printed its own; it is not in doubt as espoused by both parties at trial that the signatory to the claimant's letter of employment is one Mr. Chionuma O.N. General Manager of the 2nd defendant and that is to the express knowledge of the claimant. It is premised on all the above reasons that I find and hold that the contract of employment between the claimant and the 2nd defendant has nothing to do with the 1st defendant and that the 1st defendant did not act as agent for the 2nd defendant in recruiting the claimant. Now, on issue two which is whether or not the claimant’s employment is deemed continuous in the 1st and 2nd defendants' employment for the purpose of calculating his entitlements. It is the repeated contention of the claimant that his contract of service is continuous from the 1st defendant's bank to the 2nd defendant's. He is placing heavy reliance on exhibits B1,B2, B2(2) wherein the 1st defendant wrote that it was aware that he will carry on with his years of service from its bank to the 2nd defendant's, meanwhile he was asked to tender his resignation letter from the 1st defendant's bank and the claimant did actually resigned his employment from the 1st defendant's bank on the 31st August, 1994. It is the position of the 1st defendant and the 2nd defendant respectively that the contract of service of the claimant was determined from the 1st defendant when he resigned from its employment and that he took up a fresh employment with the 2nd defendant which also came to an end on the 30th of December 2008. To the 1st defendant, the letter dated 18th of April, 1994 stating that “the bank’s management has agreed that you should be released on the 25th of April, 1994 to Union Homes Limited” does not mean that there is an agreement between the claimant and 1st defendant that the claimant’s contract of employment is to continue in the service of the 2nd defendant but the 1st defendant has agreed to release you to your new employers and to that effect requested the claimant to tender his resignation letter, which he did. The 1st defendant went on to posit that its contract of employment with the claimant came to an end in 1994. By Exhibit B2 dated 18th of April, 1994 with the heading “release to union homes limited, demand for letter of resignation” the 1st defendant stated the following; a. That the bank’s management has agreed that you should be released on the 25th of April, 1994 to Union Homes Limited. b. Consequently, you are requested to tender your resignation letter to that effect. c. That the bank is however aware that you will carry on with your years of service from Union Bank to Union Homes. d. That you should therefore tender your resignation letter as demanded by the bank ...'' From the above exhibit, it is clear and precise that the 1st defendant released the claimant to the service of the 2nd defendant but requested that the claimant tender its resignation letter to it to serve the claimant out of its bank pay roll. The act of the 1st defendant requesting the claimant to tender his resignation is a clear indication that it wish to determine its relationship with the claimant before he goes over into the service of the 2nd defendant. It is the law of common place that the tendering of a resignation letter is a clear indication that an employee intends to determine the contract of employment between him and his employer/s. The claimant subsequently on the 29th of April, 1994 tendered his resignation letter which automatically brought to an end his contract of employment with the 1st defendant. See ADEFEMI V ABEGUNDE [2004]15 NWLR (PT. 895) 1 CA and the claimant having admitted to have received his terminal benefits rendered his employment with the 1st defendant mutually terminated. See MRS VICTORIA EMAMOKE ERIHRI V UNION BANK OF NIGERIA PLC [2014] 45 N.L.L.R (PT. 145) 597. See also EKEAGWU V NIG ARMY [2006] 11 NWLR (PT. 991) 382, the Court in this case further held that where an employee accepts salary or other payment like his gratuity after employment is brought to an end he cannot be heard to complain later that his contract of employment was not properly determined. Claimant could not substantiate his claims with any document. I further finds that Claimant's employment with the 1st defendant did not continue in the service of the 2nd defendant. Thus on that basis, claimant’s gratuity cannot be jointly calculated by both defendants. The 1st defendant had actually and in fact paid the claimant his gratuity vide exhibit B5,( i.e. the sum of N303,636.90) which he demanded for vide exhibits B3 and B4 respectively. On issue three, it is the contention of claimant that the letter dated 30th of December, 2008 did not effectively bring to a lawful end his contract of employment with the 2nd defendant and thus void. The 2nd defendant on the other hand contended that in reorganising its company to facilitate and achieve greater efficiency and better economy compulsorily retired the claimant along with some other staff. It is trite law that in a master and servant relationship, an employer who hires an employee under the common law has the corresponding right to fire him at anytime even without assigning any reason for so doing. He must however, fire him within the confine of the contract between them. See SAMUEL ISHENO V JULIUS BERGER NIG. PLC [2014] 43 NLLR (PT. 136) 320. By Exhibit B10, the 2nd defendant vide a letter dated 30th of December, 2008 retired the claimant from its employment and was paid his terminal benefits. The grouse of the claimant however, is that he was short changed. By Exhibits AE7 the Staff Provident Fund Gratuity and Pensions Scheme definitions clause 1(f) provides that “Normal retirement date means 60th birthday for male and female lives”. It is noteworthy that the 2nd defendant by clause 5( B)(iv) of exhibit AE7, envisages a situation whereby the 2nd defendant may compulsorily retire its staff for purposes of facilitating improvement or re organisation for greater efficiency. The binding effect of this provision is that the 2nd defendant is at liberty to determine the contract of service of an employee for the above purpose/ reason. It does not actually have to give any reason. It is on record that the claimant was retired at 52 years and by clause 5(iii) of Staff Provident Fund Gratuity And Pensions Scheme provides that; “where an employee leaves the service of the employer before normal/ early retirement date he would be entitled to the whole of the benefits of his contributions together with a percentage of the benefits secured by the employer’s contributions”. Thus in this case the claimant is entitled to 100% of his contribution having served the 2nd defendant for about 14years and 8 months, which for the purpose of calculating his pension entitlements will be 15 years, i.e. the 8 months will be regarded as a complete year, See exhibit AE7. The implication of all that have been stated supra is that the 2nd defendant can compulsorily retire the claimant, but shall pay his entitlements as provided for in the UHSL Staff provident scheme. It is thus against the position of the claimant that he is still in service. As alluded to earlier in this judgment, an employee can hire and fire without any reason under the common law, and under the terms of contract of service of the claimant, the 2nd defendant has a discretionary power to fire an employee in the best interest of the company, but must do so in consonance with the terms of his employment which apart from the reason given supra, the 2nd defendant is expected to give a month notice or one month salary in lieu of notice to the claimant as well as his terminal benefits. This was complied with by the 2nd defendant vide exhibit B8. ( i.e. the letter conveying claimant's terminal benefits to him). I find that the contract of employment of the claimant with the 2nd defendant was determined on the 30th of December 2008. I so find and hold. Therefore, claimant's claim that his contract of employment with the 2nd defendant should be continuous is discountenanced and dismissed As regards issue four, i.e. whether or not the claimant has proven his claims to be entitled to same. Claimant claims that he is entitled to full medical care allowance plus airfare for return business class flight ticket Lagos-London-Lagos in the sum of N5,536,800 which is the naira equivalent of US4$ 34,605 converted as US$=N160. That he is also entitled to cash once in three years being warm clothing allowance of US$3,045, for each of the two periods 2005-2007 and 2008-2011 which is a total of US$6,090 converted at US$1=#160 which equals #974,400.00 and subsequent three yearly periods. However, the 2nd defendant also alleges that the claimant is to refund to it upfront Housing, Furniture and Education allowances with a total figure of #5,396,440.79 paid by the 2nd Defendant to the Claimant prior to 30th December, 2008 which the 2nd Defendant on 2nd January, 2009 unilaterally converted to loan and charges interest there-on. Claimant also claims that the 2nd Defendant in fulfillment of its contractual and statutory obligations shall perform as follows: (a) Purchase and deliver (in arrears) one new Honda Accord car and one new Toyota Prado Sports Utility Vehicle (SUV) car for the Claimant's official and personal use and which were due on each of 1st June, 2004, 1st June, 2008 and on subsequent fourth year anniversary dates until the Claimant's valid and lawful retirement from the 2nd Defendant's service. (b) Transfer the ownership of one Honda Accord car and one Toyota Prado Sports Utility Vehicle (SUV) car on 31st May, 2008 (arising from the cars the 2nd Defendant ought to purchase and deliver to the Claimant on 1st June, 2004 as in 5(a) above) and on subsequent fourth year anniversary dates until the Claimant's valid and lawful retirement from the 2nd Defendant's service. Claimant went on to claim that the 2nd Defendant to purchase and deliver (in arrears) to the Claimant one 27kva diesel operated electricity generator with an estimated market price of #1,980,000.00 due as at July, 2006 and from 1st January, 2009 pay cash at #10,000 per week which equals #130,000 per quarter and #520,000 per annum in lieu of the 2nd Defendant's refusal and failure to provide the Claimant's entitlement to petrol for the running of the two cars the 2nd Defendant ought to purchase and deliver to the Claimant. Also from 1st January, 2009 pay cash at #450,000 per quarter for the cost of 3,000 liters of diesel or #1,800.000 per annum being cost of 12,000 liters of diesel for the running of the electricity generator at the Claimant's residence. That from 1st January, 2009 pay cash equal to the 2nd Defendant's record of expenses for the purchase of daily newspapers, monthly expenses for beverages, tea, milk, soft drinks, biscuits and similar products incurred for persons occupying the position of Deputy General Managers in the 2nd Defendant's service. The 2nd defendant contended that the claimant having been retired on the 30th of December, 2008 is not entitled to the claims as claimed by the claimant. Exhibits B12, B13 and B14 all show an outline of approved staff emoluments, however, the source from which these exhibits emanated from, is not before the Court that is the extract of the copies of the meetings of the 2nd defendants’ Board of Director in 2000, 2005 and 2007 where the emolument as in Exhibits B12, B13 and B14 were approved. The Prado and Honda cars bought for his official use were boarded to him on retirement. It is equally on record that he was given allowances due to him for medical checkups whilst in the 2nd defendant's employment. The rest of his claims for perquisite of office after retirement is unsubstantiated. The pertinent question here is are those perquisite his rights or privileges. If the answer is the later, then they cannot be maintainable in law. It is also trite that Courts are precluded from deciding issues on speculation no matter how close. See IVIENAGBOR V BAZUAYE [1996] 6 SCNJ 240. The law is long settled that speculative and futuristic claims are not maintainable in law. Claimant's claims for medical check up abroad purchase of diesel or petrol, newspapers, tea in arrears after his retirement are all claims outside of the terms of his employment. There is no evidence before the Court provided by the claimant to substantiate those claims, that he is still entitle to those benefits after retirement from the service of the 2nd defendant. It is trite that where a plaintiff fails to prove his case it will be dismissed. See CHIEF J.A AGBANA V RTD MAJOR S.K OWA AND 2ORS (2014) 5 SCM 21. Thus in the absence of any documents in prove of his claims, the Court cannot grant same. I thus find and hold that claimant claims for medical checkups, warm clothing allowance, diesel petrol allowances etc fail and thus dismissed. As regards the calculation entitlement of the claimant, that claimant gratuity shall be calculated severally as in distinct calculation by both defendant with respect to the number of years claimant served in the employment of each of the defendants that is 19 and 15years respectively. By exhibit B5 the claimant was paid the sum of N303,636.90 as his gratuity by the 1st defendant. The correctness of the said sum was not contested by the claimant, he gladly accepted it. He is therefore precluded at this stage to raise any objection to it. He is however, claiming that his entitlements should be calculated jointly with the 1st and 2nd defendant which has been decided above that his gratuity shall be calculated separately by both 1st and 2nd defendant as they already did and paid the claimant. It is evident on record vide exhibit AE6, that the 2nd defendant calculated the claimant's gratuity at 140% of his terminal annual total emolument and 40% of his annual total emolument as his pension, which are N12,406,820.00 and N4,962,728.00 as gratuity and pension respectively. Claimant's contention in one breath that his pension cannot be calculated because he is still in continuous employment of the 2nd defendant and in another breath claiming that his pension be paid is contradictory of himself. This calculation is in consonance with the schedule at page 9 of exhibit AE7. The law is that where an employer in determining an employment relationship with an employee follows the terms of the contract of employment, the termination of employment cannot be said to be wrongful. I so hold. As regards the claimant’s pension, Exhibit B1 the claimant’s offer letter by the 2nd defendant dated 24th of February, 1994 in one of the terms provided as follows; “Pension – Non contributory Scheme. Your pension scheme is deemed continuous” The law is long settled that the intention of parties are as expressed in an agreement is binding on them. The above quoted statement stated that the claimant pension is deemed continuous and that is sacrosanct. It is evident on record that the claimant served both the 1st and 2nd defendants for 19 years and 14 years and 8 months total 33years and 8months. For the purposes of calculating the pension it shall be 34 years. By exhibit B7 and AE7 the claimant’s annual pension from the 1st and 2nd defendants calculated at 78% for 34years of service. By exhibit B5 claimant’s pension per annum from the 1st defendant is N59,281.49 and by exhibit B8 claimant’s pension per annum from the 2nd defendant was N4,962,728, giving a total of N5,022,009.49 as opposed to the sum of N9,677,319.60,, that he is to be given. I thus find that the claimant is entitle to a pension of N9,677,319.60 for a continuous pension calculated at 78% of his annual terminal emolument. It then means that the defendants short paid the claimant the sum N4,655,310.11. I so hold. It is also the grouse of the claimant that a furniture allowance granted him in 2008 in the sum of N5,396,440.83 was converted to a loan and deducted from his entitlement. The 2nd defendant in its defence argued that the sum was deducted because he was retired before the end of 2009. The issue here is was the claimant entitle to the furniture allowance at the time it was paid to him? If the answer is in the affirmative, then the action of the defendant by converting it to loan was wrongful. This is so in view of the fact that the claimant did not leave the services of the 2nd defendant on his own volition but he was compulsorily retired. The equity of this case therefore demands that the said allowance paid to the claimant whilst in the employment of the 2nd defendant remained lawful and should not be converted to a loan. In fact there is nothing on record to substantiate the claim of the 2nd defendant that the money was paid in error or was a loan to the claimant. It is on this premise that I find and hold that the furniture, Housing and education allowances paid to the claimant whilst he was still in the 2nd defendant employment is lawful and should not be deducted from his terminal benefit. It is also the contention of the claimant that the 2nd defendant has failed or refused to remit his annual pension in the sum of N4,962,728.00 into his PFA since 2011. What this means is that the claimant's annual/monthly pension has been in arrears since 2011. All that the 2nd defendant said is that upon retirement it paid the claimant all his terminal entitlements including his pensions. There is no evidence on record to show that the 2nd defendant did in fact pay the claimant pension after 2011. It is thus consequent upon this that I hold that the 2nd defendant failure or refusal to pay the claimant annual pension to his PFA is unlawful and contrary to the provisions of the Pension Reform Act. I so hold. The pension reforms Act forbids this act as it is expressed by the Act thus; Section 11 (6) and (7) of the Pension Reform Act, 2014[hereafter called the Act] which provides; “Any employer who fails to remit the contributions within the time prescribed in paragraph (b) of subsection (5) of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the commission. The penalty shall not be less than 2 per cent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owing to the employees retirement savings account as the case may be” Whilst placing reliance on the above provision of the Act, I therefore order the 2nd defendant to remit the annual pension of the claimant into his PFA with immediate effect. The Pension Commission should also penalize the 2nd defendant for its failure to so do. Finally, the claimant is asking for pre judgment interest on his claims. His argument is that both the 1st and 2nd defendants charge between 20-25% interest per annum on loans or overdraft granted to its customers. Pre judgment interest are hardly granted by Courts. It is a basic principle of law that for a claim for pre judgment interest to succeed, it must arise from the mutual agreement (contract) between the parties prior to the litigation or dispute that led to the litigation, or by the custom governing the transaction that brought about the litigation, or by statute, or under a principle of equity such as breach of a fiduciary relationship before it may be claimed, proved and awarded by a court. It is correct that the 1st and 2nd defendants have fiduciary duties towards the claimant as regards his pension, however, the claimant failed to prove that there is a mutual agreement between him and the defendants as regards award of interest on a default calculation of pension. It is in that respect that pre judgment interest would not be proper to award in this instance as it relates to pension. I thus hold that claimant's claim for pre judgment interest on pension fail and thus discountenanced. On the whole and for the avoidance of doubt it is hereby declared and ordered as follows: 1. It is declared that the 1st defendant is not the agent of the 2nd defendant for the purposes of employment of the claimant. 2. It is also declared that the contract of employment between the 1st defendant and the claimant was determined on 5th May, 1994; and the one between the claimant and the 2nd defendant was determined on 30th December 2008. 3. It is further declared that the gratuity calculated and paid the claimant by the 1st and 2nd defendants separately is lawful and proper. 4. It is declared that the claimant had a separate and distinct contract of service with the 1st and 2nd defendants' 5. It is declared that claimant’s pension is deemed continuous. 6. It is ordered that the claimant shall be paid the shortfall of his entitled pension for a continuous pension period of 34 years, i.e. the sum of N4,655,310.11 by the 2nd defendant. 7. It is also ordered that the 2nd defendant shall refund back to the claimant the sum of N5,396,440.83 including the 6% interest thereon being the furniture, housing and education allowances given to the claimant in 2008, which was converted to soft loan. 8. It is equally ordered that the annual pension of the claimant unremitted into his PFA account in the sum of N4,962,728.00 from Nov.2011 till date and subsequently should be paid into his PFA account with interest accruable on it. 9. It is declared and shall be that the claimant is not entitle to his claims for medical checkups, fuel allowances, diesel allowances and official cars after his employment with the 2nd defendant has been determined. 10. It is declared that the claimant's claims for unclaimed 1993 leave from the 1st defendant bank is otiose and therefore dismissed. No order as to cost. Judgment is entered accordingly HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE