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     IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

    IN THE LAGOS JUDICIAL DIVISION

    HOLDEN AT LAGOS

     

    BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

     

    Date: 19th March 2021                                           SUIT NO. NICN/LA/597/2019

     

    BETWEEN

     

    OLAWALE THOMAS FOLORUNSHO                      …                     CLAIMANT

     

    AND

     

    FIDELITY BANK PLC                                                   …                     DEFENDANT

     

    JUDGMENT

     

    1.         Claimant commenced this suit on 6th December 2019 and claims against the Defendant as follows:

     

    a.      A declaration that the Claimant is qualified to have voluntarily retired, from the employment of the Defendant, by the letter of 12th day of March, 2018 having spent over 16 [sixteen] years from 18th day of February, 2002 till the 9th day of April, 2018 in the employment of the Defendant, and therefore entitled to the end of service retirement benefits as provided for in Clause 7.20.3 of the Defendant’s handbook policy manual, The Personnel Policies and Procedure Guide (PPPG) version. 2.8.

     

    b.      A declaration that having voluntarily retired, having spent over 15 years in the employment of the Defendant by virtue of clause 7.20.2[a] of the Defendant’s handbook policy manual, and not having completed the repayment of the mortgage loan, the conditions of the grant of the loan would remain same as contained in clause 7.13.[a]–other conditions”, and the Defendant can only charge the Claimant 3.5% interest rate till the loan would be eventually liquidated.

     

    c.       A declaration that the Claimant is entitled to be paid the terminal benefits as contained in clause 7.20.3[b][ii] of the Defendant’s hand book

     

    d.      An order for immediate payment of the sum of N69, 339,048.00 [sixty nine million, three hundred and thirty nine thousand, forty eight naira] being the end of service cash benefit due to the Claimant from the Defendant as at the 9th day of April, 2018.

     

    Or in alternative to [d] above

     

    e.      An order for immediate payment of the sum of N69, 339.048.00 [sixty nine million, three hundred and thirty nine thousand, forty eight naira] being the end of service cash benefit due to the Claimant from the Defendant as at the 9th day of April, 2018 less the sum of N2, 086,305.74 [two million, eighty six thousand, three hundred and five naira, seventy four kobo], being the outstanding mortgage loan advanced to the Claimant, as at exit date of 9th April, 2018 with interest at the rate of 3.5% per  annum, in a manner that is devoid of double charges, to the time of payment or the time of delivery of the judgment of this Court.

     

    f.        An order reversing the interest rate of 32% to 3.5% from December 2018 till November 2019 and till anytime thereafter, till judgment and crediting the account of the Claimant with the difference.

     

    g.      An order setting aside every debit interest charge on the Claimant’s current account no. 5050035375 domiciled with the Defendant.

     

    h.      An order directing the Defendant to release to the Claimant, within 14 days of the delivery of the judgment of this Court, all title documents in respect of the mortgage facilities approved and granted the Claimant, which are in the custody of the Defendant and prepare a duly executed Deed of Release to the Claimant.

     

    i.        General damages in the sum of N10, 000,000.00 [ten million naira] only for breach of contract, inconvenience, loss of good will and breach of legitimate expectation, which were all occasioned by the wilful default, failure, or wanton neglect of the Defendants to pay the retirement benefits of the Claimant despite several demands for the payment of same.

     

    j.        Interest on the sum above at the rate of 10% till judgment is delivered and thereafter at the rate of 21% till Judgment is liquidated.

     

    k.      Cost of the prosecution of this suit at the discretion of the Court.

     

    2.         Upon receipt of the originating processes, Defendant entered appearance and filed its statement of defence and accompanying processes on 14th February 2020 together with an application to regularise the processes. The memorandum of appearance, statement of defence and accompanying processes were deemed properly filed and served on 18th February 2020. Trial commenced and was concluded on 10th March 2020. Thereafter, the case was adjourned to 4th May 2020 for adoption of final written addresses, which date fell within the Covid-19 lock down, and subsequently to 16th December 2020. Parties adopted their final written addresses and the matter was set down for judgment.

     

    3.         The Claimant was a staff of the Defendant. He was employed by letter dated 18th February 2002 as senior banking officer, and was made the pioneer Group Head, Settlement Operations in 2014.  According to him, upon attainment of the voluntary retirement age, by letter dated 12th March 2018, he gave notice of his retirement effective 9th April 2018. The Defendant’s letter dated 26th April 2018 in response to his notice of retirement was captioned “Resignation of Appointment” and advised him that his outstanding debt would attract interest at prime lending rate. Claimant averred that the staff handbook pegs the interest rate on loans owed by employees who voluntarily retire at 3.5%, but in breach of its handbook, the Defendant arbitrarily increased the interest rate on his housing loan to 32% from December 2018. As a result, he commenced this suit seeking the reliefs set out above. Defendant disclaimed liability to the Claimant and avers that the voluntary retirement policy was abolished with effect from 1st January 2017, and payment of retirement benefits had ceased when the Claimant disengaged from its employment, but was only available for employees who have attained the compulsory retirement age of 55 years and retire as of right. Under the new policy, where a staff who obtained a staff loan resigns, he is given three months to pay down the loan failing which interest will be at the prevailing market rate of 32%.

     

    At the trial, Claimant testified for himself and tendered 13 exhibits, marked Exhibits 1 to 13, and Defendant called one witness and tendered 6 exhibits, marked Exhibits D1A to D1F.

     

    Issues for determination

     

    4.         Defendant formulated four issues for determination in its final written address, to wit:

     

    a.      Whether as at April 2018, the Defendant still has [sic, had] gratuity and retirement policy and if any staff of the Defendant who has not attained the age of 55 years can voluntarily retire notwithstanding whatever number of years he may have worked for the Defendant; and

     

    b.      If the answer to the above is in the negative, whether the Claimant is entitled to N69, 339,048.00?

     

    c.       Whether after the disengagement of the Claimant from the employment of the Defendant, the Claimant is still entitled to be liquidating his staff loan facility, granted while a staff of the Defendant, at the rate of 3.5% per annum or at the commercial rate of interest of 32%?

     

    d.      Whether the Claimant still being indebted to the Defendant under the mortgage facility is entitled to have the title documents of the property mortgaged as security for the loan?

     

    Arguing issue one, Defendant submits that its gratuitous payment and voluntary retirement policies had been abolished when the Claimant left its employment, and so, he could not have voluntarily retired, and he is not entitled to any retirement benefit based on Exhibits D1A and D1B. Defendant further submits that, from Claimant’s evidence, he was fully aware of Exhibits D1A and D1B and was not under any misapprehension of its purport, and did not object to the exhibits as being against his expectation, but held on to his job till he deemed it necessary to exit. The Court was urged to hold these facts as pleaded and admitted; and facts admitted require no further proof on the authority of Sunday Temile & Ors. v. Jemide Awani [2001] 12 NWLR [Pt. 728] 726.

     

    Defendant also submits that the Claimant’s letter, Exhibit 11, is of no moment in that as at 9th April 2018, he could not voluntarily retire because there was no provision in its policy for voluntary retirement; as a result, the gratuity and retirement benefits policy is not applicable to him. It notes that by 31st December 2016 when the retirement policy was applicable, the Claimant had not put in 15 years to entitle him to the benefit of the policy. Defendant states that clauses 1.0 and 3.1 of the Personnel Policies and Procedure Guide [“PPPG”], Exhibit 10, empower it to unilaterally review privileges stated therein based on performance and exigencies of business, which fact was admitted by the Claimant in cross-examination. It insists that the only obligation it owed the Claimant was to inform him of changes in the PPPG which it did, and urged the Court to hold that its gratuity and retirement policy has changed. On the issue of estoppel raised by Claimant in paragraphs 12, 14, 15, and 16 of his reply to the statement of defence, Defendant submits that for estoppel to apply, the Claimant must prove the representation it made to him personally which altered his position and for which it is estopped from stating the contrary on the authority of Ughutevbe v. Shonowo [2004] 16 NWLR [Pt. 899] 300 at 332.

     

    5.         On the second issue, Defendant contends that having not attained the mandatory retirement age of 55 years before his exit, the Claimant is not entitled to any retirement benefits and accordingly, he is not entitled to the sum of N69, 339,048.00 or any other sum as gratuitous and retirement benefits.

     

    Arguing issues three and four, Defendant states that parties agree that the Claimant was granted a staff loan at an interest rate of 3.5%, which on Claimant’s admission applies only to its staff; and argues that once a person enjoying the loan ceases to be a staff, he loses the right to interest at 3.5%. When this happens, the staff is given 3 months to liquidate the loan failing which commercial interest rate will apply. It referred to paragraph 4g of its statement of defence and Exhibit D1F, which fact it insists is not challenged, and thus, deemed admitted. It further submits that unchallenged evidence is deemed admitted; and since the Claimant did not liquidate his staff loan within the prescribed time, the commercial interest rate of 32% applies on his outstanding loan. The Court was urged to so hold.

     

    Defendant also referred to clause 7.13 of Exhibit 10 which provides that where a staff retires before fully liquidating his staff house ownership loan, the rate of interest will remain at 3.5%, and contends that as at 9th April 2018 when the Claimant left its employment, there was no policy of voluntary retirement, and having not attained the retirement age of 55 years, he is not entitled to any retirement benefit, and the loan is automatically converted to a commercial loan.

     

    Lastly, on issue four, it states that the facts speak for itself. It maintains that the Claimant is still indebted to it in the sum of N4, 862,779.85 and being so indebted, the title document of the mortgaged property is rightfully in its custody. The Court was urged to take judicial notice of the fact that it was created to charge interest by the nature of its business.

     

    6.         Claimant submitted three issues for determination, viz:

     

    a.      Whether in view of the pleadings and evidence before the Court, it could be said that the Claimant retired or resigned his appointment from the employment of the Defendant?

     

    b.      Whether in view of the pleadings and evidence before the Court, the Claimant is entitled to the reliefs sought?

     

    c.       Whether in view of the evidence of the Defendant, including the statement on oath dated 14th day of February, 2020 and the facts elicited during cross examination, the Defendant has successfully discharged the [its] obligations to the Claimant?

     

    At the trial, Claimant objected to admissibility of Defendant’s documents, Exhibits D1A to D1F, but deferred arguments to his final written address. He states that the exhibits are copies of documents which are computer-generated, and can only be admitted if the conditions for admissibility in Section 84 of the Evidence Act, 2011 are satisfied and relied on Dickson v Sylva [2017] 8 NWLR [Pt. 1567] 167 at 200 to 201, 228 where, according to Claimant, the Supreme Court held that all the conditions in Section 84[2] of the Evidence Act must be complied with and the certification as well as the electronically generated evidence must be admitted in evidence for the computer-generated documents to be admissible. He also referred to Section 84[4] of the Evidence Act, 2011 and contends that the conditions therein must be satisfied.

     

    He contends that the documents are secondary evidence, and there is no information about the originals. He notes that the defence witness said the originals are with the Defendant, and submits that the legal threshold for admissibility of a secondary evidence has not been met by the Defendant. He explains that the law permits a party to tender secondary evidence upon fulfilment of conditions precedent, which must not only be reasonable but credible to show that the original documents exist somewhere but out of the reach of the party tendering photocopies as secondary evidence. He submits that unless foundation is laid secondary evidence is not admissible as a matter of course. Reliance was placed on the cases of Osaghae v Amadasun [2014] 16 NWLR [Pt. 1433] 346 at 360 and Tamkeyar v. Bussa & Ors [2017] LPELR-42987[CA] 20-21. On this premise, he submits that Exhibits D1A to D1F are not admissible in law, and having been admitted conditionally, should be expunged from the records of the Court on the authority of Bredero [Nig] Ltd v. Shyantor [Nig] Ltd & Ors [2016] LPELR-40205 [CA] 30.

     

    7.         Arguing his issue one, Claimant explains that upon attainment of a certain age as contained in Defendant’s staff handbook, which regulated his relationship with the Defendant, he voluntarily retired from Defendant’s employment, but Defendant insists that he resigned. He contends that while retirement and resignation signify termination of employment, the legal threshold are different and relied on the staff handbook, Exhibit 10. Referring to Keystone Bank Ltd v. Clarke [2020] LPELR-49732[CA] 24, he submits that contracts of employment, like all other contracts, their creation and termination are subject to the general principles governing the law of contract. Hence, where the contract of employment is in writing, parties are bound by the express terms and conditions so stipulated. He notes that the defence witness confirmed under cross examination that Exhibits 1 and 10 regulated the relationship between him and the Defendant, and if there is a review, the staff handbook will be updated. He explained that in the heat of cross examination, the defence witness confessed that Exhibit 10, version 2.8 is not the current staff handbook, and that the current staff handbook is version 3.0 which was updated in December 2019 and was not pleaded, frontloaded or produced in Court. He urged the Court to presume non-production of the evidence against the Defendant pursuant to Section 167[d] of the Evidence Act, 2011.

     

    It is his further submission that by clause 7.20.2 of Exhibit 10, voluntary retirement age is a minimum of 15 years of unbroken service, and compulsory retirement age is 55 years; while clauses 3.16.1 and 3.16.2 stipulate that resignation is termination of employment at the instance of the employee and the notice period for management staff is three months or three months’ basic salary in lieu of notice. He contends that Exhibit 11 was received and acknowledged by the Defendant on 12th March 2018, but on 26th April 2018, it issued Exhibit 9 in apparent response to his letter of voluntary retirement and titled it “Resignation of Appointment.” He argued that in cross-examination, defence witness admitted that he was a senior manager and did not give three months’ notice or pay three months’ salary in lieu of notice. He notes that if he had resigned without fulfilling these conditions, Defendant would have rejected his resignation. He further notes that the Defendant did not give him a letter specifying the separation terms as contained in clause 3.16.1 of Exhibit 10, and urged the Court to resolve this issue in his favour and hold that he voluntarily retired in accordance with clause 7.20.2[a] of Exhibit 10 and entitled to the reliefs in clause 7.20.3.

     

    8.         On issue two, he maintains that the relationship between him and the Defendant was regulated by Exhibits 1 and 10, which constitute the main contract between them; and the Court is obliged to interpret the contract between parties and not to rewrite it on the authority of Kayode Vent. Ltd. v. Ministry of FCT & Ors. [2010] 7 SCM 120. He referred to clause 7.20.3 of Exhibit 10, paragraphs 30 to 33 of his statement on oath and Exhibit 12 and submits that being a Senior Manager 3 at the time of disengagement, he is entitled to cash benefits of nine months’ basic salary, transport, and housing for each completed year of service; and that the sum of N69, 339,048.00 [sixty nine million, three hundred and thirty nine thousand, forty eight naira] his end of service cash benefit remains unpaid despite several demands. He notes that the Defendant did not deny these allegations apart from the general traverse, and submits that the law is trite that what is not denied is deemed admitted, and as a result, he is entitled to the terminal cash benefits as contained in Exhibit 10.

     

    On the relief for interest charged on the mortgage loan, detention of title documents, he submits that relevant provisions of Exhibit 10 show he is entitled to reliefs [a] to [h], and referred to clause 7.13 of Exhibit 10. He explained that         having spent over 5 years as prescribed in the staff handbook, he applied and was granted a status mortgage facility in 2008 at 3.5%, and was paying that interest from the grant of the loan till he notified Defendant of his retirement. At the point of disengagement, he was to pay the sum of N2, 086, 305.74 [two million, eighty six thousand, three hundred and five naira, seventy four kobo], and as collateral for the loan, the title deeds of the property are with Defendant and will be released upon payment of the loan. He states that, contrary to the expectation and agreement of the parties, and as disclosed in Exhibit 13, the statement of account, the Defendant has been charging 32% interest as against the agreed 3.5%. He submits that parties agreed that Exhibit 10 would regulate the mortgage loan and have respected the agreement, therefore, Defendant is estopped from reneging on the agreement on the authority of Bank of the North Ltd. v. Yau [2001] 10 NWLR [Pt. 721] 408 and Otu & Anor. v. Ani & Ors. [2013] LPELR-21405[CA] 48-50.

     

    He contends that the claim for cost and general damages flow naturally from the success of the reliefs claimed, and relied on Ibok v. Spring Bank Plc [2012] LPELR-7856[CA] 19-21. It is his further submission that the relief of general damages is such that this Court should grant in the peculiar circumstance of this suit, and argues that once breach of contract is established, damages follow on the authority of Shell DP v. Jammal Engineering Ltd. [1994] 4 SC 33.

     

    On issue three, Claimant explained that the Defendant denied any indebtedness to him and argued that the gratuity scheme has been abolished but that the mortgage loan repayment, which is also regulated by Exhibit 10 is still effective. He submits that the defence witness’ statement on oath violates the provisions of the Oaths Act and should be discountenanced and relied on Guaranty Trust Bank [GTB] Plc v. Barrister Ajiboye Ayodeji Abiodun [2017] LPELR-42551.

     

    He also submits, in the unlikely event that the Court is minded to look at Exhibits D1A to D1F, that the exhibits do not help the Defendant’s case in that Exhibit D1A and D1B are wrongful, made mala-fide and contrary to his legitimate expectations and inconsistent with the provisions of the staff handbook and thus void. He argues that the Defendant represented to him and he relied on the representations that, despite commencement of the Pension Reforms Act, his pension scheme would still be regulated by its staff handbook and this state of affairs continued till the emails of 24th December 2014 and 23rd December 2016 a period of more than 10 and 12 years respectively from the commencement of the Pension Reforms Act, 2004. He insists that the Pension Reforms Act, 2014 which repealed the Pension Reforms Act 2004, did not abrogate end of year service entitlements as Section 4[4][a] thereof provides that an employer may agree on payment of additional benefits to the employee upon retirement, which agreement is contained in clause 7.20.3[b][ii] of the staff handbook, which was reviewed and the relevant provision retained in December 2015. He notes that by item 4 of the internal memorandum dated 24th December 2014, Exhibit D1A, the retirement benefits provided in clause 7.20.2[a] for employees who have rendered unbroken service for 15 years remain unchanged. As at 23rd December 2016, when the internal memorandum, Exhibit D1B, was made, he had spent 14 years 10 months in Defendant’s employment, and no money was paid to him in line with the internal memorandum, and by the time he retired, he had spent over 16 years. He states that the defence witness in cross examination admitted that Exhibit D1A and D1B did not abrogate the content of Exhibit 10. The Court was urged to discountenance the testimony of Defendant’s witness as there is nothing before the Court which show that Exhibits D1A, D1B and others were personally delivered to him and he accepted it, and submits that he who asserts has the legal burden to prove. He urged the Court to hold that the Defendant has not discharged and performed its obligations to him, and resolve all the issues in his favour and grant his reliefs.

     

    9.         In the reply on points of law, Defendant submits that evidence can either be inadmissible under all circumstances or inadmissible under certain circumstances. A document inadmissible under all circumstances cannot be admitted with or without objections. On the other hand, evidence admissible under certain circumstances can only be rendered inadmissible where those circumstances are not met. It argued that the case of Bredero Nigeria Limited v. Shyantor Nigeria Limited & Ors. [supra] relied on by the Claimant relates to evidence which is inadmissible under all circumstances and inapplicable to this case.

     

    Defendant further argued that the words ‘original document’ used by Claimant in describing computer generated documents is an aberration as such documents are derived from information stored in the computer and are originals requiring no foundation to tender it, and referred to Section 86[4] of the Evidence Act 2011. Therefore, Claimant’s submission in this respect goes to no issue.

     

    It also submits that what governs admissibility of documents is relevance on the authority of Okoye v. Obiaso [2010] 8 NWLR [Pt. 1195] 145, and the Court is to determine whether the documents are relevant to this case and should admit it unless it is patently inadmissible. Continuing, Defendant states that the documents in question are computer-generated and Section 84[1] and [2] of the Evidence Act, 2011 stipulate what a party relying on a computer-generated document should do; and a party relying on a computer-generated document can either establish the conditions enumerated therein by oral testimony or through a certificate given under the hand of a person in the capacity to give such certificate. Reference was made to Dickson v. Sylva [2017] 8 NWLR [Pt. 1567] 167. It adds that in compliance with this provision it filed a certificate of compliance dated 14th February 2020 and signed by Miss Obianuju Nwosu, which certificate forms part of the records of the Court and was duly served the Claimant; and its witness referred to the certificate and pointed out that the emails were generated from its computers deployed to receive information in the course of its activities. It submits that Courts are enjoined not only to take judicial notice of the course of proceedings in any Court by virtue of Section 122[m] of the Evidence Act, 2011, but to rely on any document in their records in arriving at a decision. Reliance was placed on the cases of Fumudoh & Anor. v. Aboro & Anor. [1991] 9 NWLR [Pt. 214] 210 at 229 and Chief S. O. Agbareh & Anor. v. Dr. Anthony Mimra & Ors. [2008] 2 NWLR [Pt. 1071] 378 at 411-412.

               

    Defendant further submits that the case of Dickson v. Sylva [supra] is distinguishable from this case in that the witness was subpoenaed and in his statement on oath attached a certificate that the DVD was made by him and from his computer, thus rendering the DVD and certificate admissible as exhibits. It insists that there is nowhere in the judgement in Dickson’s case that the Court said the certificate issued in accordance with Section 84[2] must be tendered as exhibit. The Court was urged to discountenance the objection and receive the documents as exhibits.

     

    10.       Defendant also notes that the Claimant has not shown how its witness’ deposition offends the Oaths Act as he did not state under what oath’s classification in schedule 1 of the Oath’s Act the witness deposition should come, and submits that the objection is a mere conjecture and should be ignored. Nevertheless, it submits that the witness’ deposition was validly sworn before a Commissioner for Oaths who endorsed and stamped it with the official stamp. The statement on oath conforms to the standard stipulated by Section 117 of the Evidence Act. Continuing, it contends that failure to use the exact words prescribed by the Act will not render an oath invalid because the intention of the legislature is that affidavits and statement on oath should be deposed before a person authorised to administer oaths for purposes of using it in Court’s proceedings and in other places where it may be needed for truthful affirmation of its content, and relied on Lonestar Drilling Nigeria Limited v. Triveni Engineering & Industries Limited & Ors. [1999] 1 NWLR [Pt. 588] 622 and Ibrahim v. Independent Electoral Commission & Ors.  [1999] 1 NWLR [Pt. 614] 334. It submits further that if there is a defect as argued by Claimant, it can at best be as to form, and the Oath’s Act envisaged this in Section 4[2][b] which states that no irregularity in the form in which an oath or affirmation is administered or taken shall invalidate the proceedings in any Court. In addition, Section 113 of the Evidence Act provides that the Court may permit an affidavit to be used notwithstanding that it is defective in form, if the Court is satisfied that it has been sworn before a person duly authorised. The Court was urged to discountenance Claimant’s submission and hold that the statement on oath is not in any way defective.

     

    With respect to Exhibits D1A and D1B, Defendant notes that the Claimant admits in paragraph 12 of his reply that it has a right to review Exhibit 10, and argued that there is no evidence that the exhibits are wrongful, made mala-fide and contrary to Claimant’s legitimate expectation; and mala-fide being an unjust act must be proved to be directed at Claimant specifically, which proof is lacking. On Claimant’s argument that Exhibits D1A to D1F were not personally delivered to him, Defendant contends that Claimant joined issues with it in paragraphs 12, 14, 15, 16, 17, 19, 20 of his reply to the statement of defence, which implies that he received the documents. It states that Exhibit D1C clearly establishes that parties communicated through email. In addition, it contends that evidence of receiving and sending emails between parties can only be established by written statements and Claimant cannot by oral evidence recant, alter or vary documentary evidence on the authority of Agbareh & Anor. v. Mimra & Ors. [supra] at page 410-411.

     

    It further submits that this Court is authorised by the establishing Act and its Rules to depart from the rules of evidence in the interest of justice and referred to Section 12[2][b] of the National Industrial Court Act, 2006 and Order 5 Rule 6[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017; and urged the Court to so depart in order to do substantial justice in the matter as the objection borders on technicality, and to do otherwise would be unjust, inequitable and defeat the cause of justice.

     

                Resolution of preliminary issues

     

    11.       I have given deep thoughts to the submissions of parties. Claimant’s objections are three-pronged. He attacks Exhibits D1A to D1F for non-compliance with Sections 84 and 89 of the Evidence Act, 2011 and for lack of proof of receipt by him; and the Defendant’s witness’ deposition for non-compliance with the Oaths Act.

     

                Beginning with the last objection, Claimant submits that Defendant’s witness’ statement on oath wherein he said “That I make this deposition in accordance with the Oaths Act” violates the Oaths Act and should be discountenanced on the authority of Guaranty Trust Bank Plc v. Abiodun [supra]. Responding, Defendant contends that its witness’ deposition was validly sworn before a Commissioner for Oaths who endorsed and stamped it and conforms to Section 117 of the Evidence Act; and in any event, failure to use the exact words prescribed in the Oaths Act will not invalidate the statement on oath and relied on Ibrahim v. Independent Electoral Commission & Ors. [supra]. Defendant further submits that if there is a defect, it can at best be as to form which should not invalidate the proceedings, and referred to Section 4[2][b] of the Oaths Act. In addition, it submits that by Section 113 of the Evidence Act, the Court may permit an affidavit to be used notwithstanding that it is defective in form, if the Court is satisfied that it has been sworn before a person duly authorised.

     

    12.       A good starting point in this consideration is Section 13 of the Oaths Act, which provides thus:

     

    “It shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act to administer an oath to take and receive the declaration of any person voluntarily making the same before him in the form set out in the first schedule to this Act."

     

                The form specified in the 1st Schedule states that:

     

    "I .... do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.”

     

    The first principle in interpretation of statutes is that the meaning and intention of the legislature must be derived from the plain and unambiguous expressions used therein. See City Engineering [Nigeria] Ltd. v. Nigerian Airports Authority [1999] LPELR-867[SC] 14 and Olatunbosun v. The President and Members of Oluyole Local Government & Anor. [2010] LPELR-4753[CA] 15.

     

    While the word ‘shall’ often implies mandatoriness, whether it has been used in that sense will depend on the context it is used in the statute in question. See Central Bank of Nigeria v. Okeb Nigeria Limited & Ors. [2014] LPELR-23162[CA] 26. In Amadi v. NNPC [2000] LPELR-445[SC] 20, the Supreme Court, per Uwais, C.J.N. [as he then was], had this to say:

     

    “It is settled that the word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission…. If used in a mandatory sense, then the action to be taken must obey or fulfil the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfil the directive substantially.”

     

    In my respectful view, the word ‘shall’ in Section 13 of the Oaths Act does not connote mandatoriness. The operative words are: “It shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act….” The ‘shall’ is used in a permissive sense. The form prescribed in the 1st Schedule of the Oaths Act is expected to serve as a guide to the form an acceptable oath within the provisions of the Oaths Act should take. See Ogwuegbu v. Agomuo & Ors. [1999] LPELR-6686[CA] 22 where the Court of Appeal, per Akintan, J.C.A. [as he then was] held:

     

    “I believe that the form prescribed in the 1st Schedule is expected to serve as a guide as to the form an acceptable oath within the provisions of the Oaths Act should take. The form prescribed, in my view, is not expected to be rigidly followed word for word or letter by letter. I also believe that what is required therefore is to ensure that there is substantial compliance with the requirement of the Act.”

     

    At any rate, as a general rule, forms in schedules to statutes are inserted merely as examples and guides and are meant to be followed only so far as circumstances permit. See Mrs. Bucknor Macleans & Ors. v. Inlaks Ltd. [1980] LPELR-1803[SC] 42-43 and A.G. Akwa Ibom State v. Akadiaha [2019] LPELR-46845[CA] 11.

     

    13.       Contrary to Claimant’s submission, on the effect of non-compliance with the form prescribed in the 1st Schedule to the Oaths Act, the weight of judicial authorities is that the deposition is not a nullity if there is substantial compliance. See Ogwuegbu v. Agomuo & Ors. [supra] and A.G. Akwa Ibom State v. Akadiaha [supra]. In the latter case, Shuaibu, J.C.A., reviewed the case of Guaranty Trust Bank Plc v. Abiodun [supra] and posited that:

     

    “Where there is a total non-compliance with the Oaths Act, such oaths are defective but whereas in this case, there is substantial compliance with the Oaths Act, the failure to use the form strictly words for words does not in my respectful view render it defective and liable to be struck out.”  

     

    This position finds support in Section 23 of the Interpretation Act, which provides thus:

     

    “Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”

     

    For non-compliance to have a nullifying effect, the Claimant must prove that the difference with the form is in a material particular and calculated to mislead. The alleged offending statement on oath begins with:

     

    “I, Franklin Adaghubu male, Nigerian, Manager Human Resources, Fidelity Bank Plc of No 2, Kofo Abayomi Street, Victoria Island, Lagos do hereby make oath and state as follows:”

     

    and ends with:

     

    “That I make this deposition in accordance with Oath’s Act.”

     

    The missing words are “solemnly and sincerely” and “conscientiously believing the same to be true”. There is no material difference between this deposition and the prescribed form. In any event, the Claimant has not shown that he was misled. In addition, Section 4[2][b] and [c] of the Oaths Act clearly state that:

     

    “[2]      No irregularity in the form in which an oath, or affirmation is administered or taken shall –

     

    [b]       invalidate proceedings in any Court; or

     

    [c]        render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.”

     

                See also Uduma v. Arunsi & Ors. [2010] LPELR-9133[CA] 31.

               

    Contrary to Defendant’s submission, Section 113 of the Evidence Act, 2011 is self-limiting and inapplicable here. It provides “The court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorised.” The operative words are “according to this Act”. The Evidence Act, 2011 does not regulate oaths, it regulates evidence and the manner in which it is taken.

     

    Nonetheless, in view of my reasoning above, I hold that this ground of the objection fails and it is overruled.

     

    14.       On proof of receipt of Exhibits D1A to D1F by the Claimant, Defendant argues that Claimant joined issues with it in paragraphs 12, 14, 15, 16, 17, 19, 20 of his reply to the statement of defence, which implies that he received the documents, and Exhibit D1C shows that parties communicated through email. In any event, it contends that evidence of receiving and sending emails can only be established by written statements and Claimant cannot in his oral testimony vary documentary evidence, and relied on Agbareh & Anor. v. Mimra & Ors. [supra] at pages 410-411.

     

                As a general principle, proof of delivery of a document is by production of a dispatch book indicating receipt, or evidence of dispatch by registered post, or evidence of a witness credible enough to prove that the person was served with the document. See Nlewedim v. Uduma [1995] LPELR-2053[SC] 12-13 and Shoprite Checkers [Pty] Ltd & Anor. v. A. I. C. Ltd [2020] LPELR-49905[CA].

     

                However, this case is different as communication between parties was by email. I agree with Defendant that Exhibit D1C demonstrates that parties communicated through email. In addition, Exhibits D1A and D1B were addressed to “All Staff Notice” and “All of us” respectively, and by his position as a senior manager, the Claimant would have received the emails. In any event, there is nothing in his pleadings denying receipt of the emails. The effect of the decisions on this subject, see Nlewedim v. Uduma [supra] and Shoprite Checkers [Pty] Ltd & Anor. v. A. I. C. Ltd [supra], is that a party who challenges receipt of a document must clearly say so in his pleading, and not otherwise. Delivery and receipt of documents are questions of fact, and evidence on facts not pleaded goes to no issue. See Abah v. & Ors. v. Jabusco [Nigeria] Ltd [2007] LPELR-4325[CA] 36-37.  As argued by the Defendant, Claimant joined issues with the Defendant in paragraphs 12, 14, 15, 16 and 17 of his reply to the statement of defence which implies that he received the documents. In conclusion, I hold that this objection has not been properly made out, and it is hereby overruled.

     

    15.       The last point is that Exhibits D1A to D1F offend Sections 84 and 89 of the Evidence Act, 2011. The summary of Claimant’s submission is that Exhibits D1A to D1F are copies of computer-generated documents which can only be admitted if the conditions for admissibility in Section 84 of the Evidence Act, 2011 are satisfied. Reliance was placed on Dickson v. Sylva [supra]. Also, he contends that secondary evidence is not admitted as a matter of course, and to be admissible proper foundation must be laid and relied on the case of Osaghae v. Amadasun [supra], amongst others and urged the Court to expunge the exhibits from its records on the authority of Bredero [Nig] Ltd v. Shyantor [Nig] Ltd & Ors. [supra].

     

    Defendant’s response is that the words ‘original document’ used by Claimant to describe computer generated documents are an aberration as such documents are derived from information stored in the computer and are originals requiring no foundation to tender it, and referred to Section 86[4] of the Evidence Act 2011. Relying on Okoye v. Obiaso [supra], Defendant also submits that relevance governs admissibility of documents, and once a document is relevant, the Court will admit it unless it is patently inadmissible. It further argues that a party relying on a computer-generated document can either establish the conditions enumerated therein by oral testimony or through a certificate given under the hand of a person in the capacity to give such certificate, on the authority of Dickson v. Sylva [supra], and submits that it has complied with this provision and filed a certificate which forms part of the records of the Court and its witness referred to the certificate and pointed out that the emails were generated from its computers deployed to receive information in the course of its activities; and the Court is enjoined not only to take judicial notice of the course of proceedings in any Court by virtue of Section 122[m] of the Evidence Act, 2011, but to rely on any document in their records in arriving at a decision. The case of Fumudoh & Anor. v. Aboro & Anor. [supra] amongst others was cited to buttress the point. It insists that there is nothing in the decision in Dickson v Sylva [supra] which suggests that the certificate must be tendered as an exhibit. Lastly, Defendant submits that this Court is authorised by the establishing Act and its Rules to depart from the rules of evidence in the interest of justice and referred to Section 12[2][b] of the National Industrial Court Act, 2006 and Order 5 Rule 6[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to buttress its’ submission; and urged the Court to so depart in order to do substantial justice in this matter.

     

    16.       Let me quickly say that, while Section 86[4] of the Evidence Act, 2011 provides that documents made by one uniform process, whether by printing, photography, computer or other electronic or mechanical process, are primary evidence, thus requiring no foundation for admissibility. The subsection also states that, where the documents are all copies of common original, they shall not be primary evidence. In which case, a party seeking to tender such copies will be required to lay proper foundation to render the copies admissible in evidence. I have carefully examined the exhibits and the documents in the case file, and observe that the original emails were frontloaded by the Defendant and are in the case file, while the emails tendered and admitted as Exhibits D1A to D1F are photocopies. These cannot be described as originals as contended by the Defendant.

     

    Generally, admissibility of evidence is based on relevance. Once evidence is relevant for proper determination of a fact in issue, it is admissible. However, relevance alone does not suffice to render documentary evidence admissible. It must be legally admissible. See Omega Bank Nigeria Plc v. O.B.C. Limited [2005] LPELR-2636[SC] 28-29. In fact, for a documentary evidence to be admissible, it must satisfy three conditions, that is: is it pleaded? Is it relevant to the fact in issue? Is it legally admissible? It is the law that the Court can only admit and act on evidence which is legally admissible. See Omega Bank Nigeria Plc v. O.B.C. Limited [supra], Okoye & Anor. v. Obiaso & Ors. [2010] LPELR-2507[SC] 21-22 and The Executive Governor, Ekiti State & Ors. v. Abe & Ors. [2016] LPELR-40152[CA] 34-35.

     

    17.       The law on admissibility of electronic documents is firmly established. Section 84 of the Evidence Act, 2011 regulates admissibility of electronic documents. Subsection 1 provides that:

     

    “In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.”

     

                What are these conditions? They are that:

     

    a.      The document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual.

     

    b.      Over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.

     

    c.       Throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents.

     

    d.      The information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

     

    These conditions are mandatory. See Kubor v. Dickson [2013] 4 NWLR [Pt.1345] 534 at 578 and Dickson v. Sylva & Ors. [2016] LPELR-41257[SC] 23-24. Section 84[4] of the Evidence Act lays down the manner of establishing these conditions, which is by a certificate. It provides:

     

    “4.       In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate –

     

    a.      identifying the document containing the statement and describing the manner in which it was produced;

     

    b.      giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.

     

    c.       dealing with any of the matters to which the conditions mentioned in subsection (2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

     

    18.       As rightly argued by Defendant, there is nothing in Section 84[2] and [4] of the Evidence Act, 2011 or the judgment in Dickson v. Sylva & Ors. [supra] to suggest that the certificate must be tendered as an exhibit. In Dickson v. Sylva & Ors. [2017] 8 NWLR [Pt. 1567] 167 at 203, Nweze, J.S.C., who delivered the leading judgment posited that:

     

    “In actual fact, section 84 (supra) consecrates two methods of proof, either by oral evidence under section 84(1) and (2) or by a certificate under section 84(4). In either case, the conditions stipulated in section 84(2) must be satisfied. However, this is subject to the power of the Judge to require oral evidence in addition to the certificate.”

     

    In his supporting judgment, Aka’ahs, J.S.C., at page 228 of the report observed thus:

     

    “The correct interpretation to be given to section 84 of the Evidence Act where electronically generated document is sought to be demonstrated is that such electronically generated evidence must be certified and must comply with the preconditions laid down in section 84(2). … In the instant case, PW51 made a written deposition at pages 349-351 of the Record which he adopted at page 353. The certification as well as the electronically generated evidence in issue, the DVD in question, were admitted in evidence as exhibits P42A and P42B respectively in support of the pleading.”

     

    The certificate is issue in this case is at page 154 of the case file and substantially complies with Section 84 of the Evidence Act, 2011, even though the particulars of the computer[s] were not stated. Defendant’s witness, in his oral testimony, said the emails were generated from Defendant’s HP Compaq computer. Thus, making up for the omission in the certificate. This Court is obliged to refer to any documents in the case file in deciding a matter if doing so will ensure justice to the parties. See Dan’ Asabe & Anor. v. Babale [2013] LPELR-22360[CA] 59-62.

     

    On the submission that Exhibits D1A to D1F are photocopies and the only condition for admissibility is if proper foundation is laid, I have looked at the exhibits and they are indeed photocopies. By Section 89 of the Evidence Act, 2011, proper foundation has to be laid for the photocopies to be admissible in evidence. This was not done. However, I observed earlier in this judgment that the original emails were frontloaded and form part of the records of the Court, while the photocopies were tendered and admitted in evidence. Thus, while the position of the law is that proper foundation must be laid to render secondary evidence of a document admissible, this Court is empowered by Section 12[2][b] of the National Industrial Court Act, 2006 and Order 5 Rule 6[2][b] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to depart from the strict application of the Evidence Act in the interest of justice. In view of this fact and the circumstances of this case, it is my considered opinion, and I so hold, that justice will be best served in departing from the strict application of Section 89 of the Evidence Act, 2011 and admitting photocopies of the emails. Having admitted the documents, I hold that they were rightly admitted. Claimant’s objection is, therefore, overruled.

     

                Resolution of issue for determination

     

    19.       I have carefully considered the evidence of parties and their written submissions together with the issues formulated therein, and in my candid opinion, the seven issues can be fused into one, that is, whether the Claimant is entitled to judgment as claimed?

     

    It is now elementary law which requires no citation of authority that he who asserts must prove. See Sections 131[1] and 132 of the Evidence Act, 2011.  The burden of proof in civil cases is on the Claimant who initiated the suit and who must satisfy the Court by relevant and credible evidence that he is entitled to judgment on his claims in view of the circumstances of the case. See Zenon Petroleum & Gas Limited v. Emsee Shipping Line Limited [2021] 1 NWLR [Pt. 1758] 553 at 562.

     

    Where a Claimant, as in this case, seeks declaratory reliefs, he has the onerous burden to prove his entitlement to those reliefs. See Ilori & Ors. v. Ishola & Anor. [2018] 15 NWLR [Pt. 1641] 77 at 94. Evidence which will support a legal right must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Ilori & Ors. v. Ishola & Anor. [supra]. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimant is only required to show that the law and facts of his case support his claims and cannot rely on the mere admission of the Defendant or absence of defence. See Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] 25. This is so because a claim for declaration calls for exercise of the Court’s discretion in favour of the Claimant. Therefore, the Claimant must place sufficient materials before the Court to enable it exercise the discretion in his favour. See Adama & Ors. v. Kogi State House of Assembly & Ors. [2019] 16 NWLR [Pt. 1699] 501 at 531. On what a credible evidence is, the Court of Appeal in In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] 16, posited that a credible evidence means evidence worthy of belief and for evidence to be worthy of belief it must be natural, reasonable and probable in the peculiar circumstances of the case.

     

    20.       The Claimant seeks ten reliefs and one alternative relief in this action which have been fully set out earlier in this judgment. In proof of these claims, he filed two depositions. The first one is dated 6th December 2019, and a further witness’ statement on oath dated 2nd March 2020.

     

    A summary of Claimant’s evidence is that having put in 16 years in the service of the Defendant, by letter dated 12th March 2018, Exhibit 11, he gave notice of his retirement from the Defendant’s employment effective 9th April 2018 in line with clause 7.20.2 of the staff handbook, Exhibit 10. The Defendant received the letter and did not respond until 26th April 2018, and its reply is captioned “Resignation of Appointment”, Exhibit 9. He states that upon retirement, he is entitled to retirement benefits as specified in clause 7.20.3[a], [b][ii] and [c] of the staff handbook, and being a senior manager at the time of disengagement, he is entitled to cash benefits of nine months basic salary, transport, and housing for each completed year of service. He explained the basis of computation of his terminal cash benefits as: basic salary as at April 2018 N812, 935.00; housing allowance N2, 890,319.00 and transportation allowance N2, 075,000.00; the third item being the status car allowances of N8, 300,000.00 divided by 4 years at full depreciation value. It is his case that having spent 16 years in the service of the Defendant, his cash benefits for end of service are to be calculated by addition of his basic salary, housing and transportation allowances totalling N5, 778, 254.00 divided by 12 months which is N481, 521.17 multiplied by 9 months 16 years bringing the total sum due to him to N69, 339.048.00; which sum remains unpaid despite several demands. He also states that by clause 7.13 of the staff handbook, a manager or employee who has spent a minimum of 5 years with the Defendant is entitled to benefit from the home ownership policy of the Defendant with interest at the rate of 3.5% per annum payable on a monthly basis, which condition remains if the employee retires before full repayment of the loan. He further states that by clause 7.20.2 of the staff handbook, voluntary retirement is permissible upon spending a minimum of 15 years unbroken service with the Defendant, while compulsory retirement is upon attainment of 55 years; and having spent over 5 years, he applied and was granted a status mortgage facility in 2008 at the rate of 3.5%, which rate continued to be applied to the loan after his retirement till November 2018, even though his terminal benefits had not been paid. Contrary to the terms of the staff handbook, Defendant increased the interest rate from 3.5% to 32% from December 2018 till date. By reason of which he commenced this suit seeking the reliefs contained in his statement on oath.

     

    In his further statement on oath, he maintained that he voluntarily retired from the Defendant’s employment having spent over 15 years and qualified for voluntary retirement effective after deducting his outstanding leave days on 9th April, 2018, and did not resign on 12th April 2018 as stated by the Defendant. He insists that the internal memo of 24th December 2014 and 23rd December 2016 did not abrogate the contents of the staff handbook version 2.8 created in June 2010 and reviewed in December 2015 which was the only collateral agreement that regulated the relationship between the parties. In view of this, Defendant is estopped from relying the email, on Exhibit D1A, to evade its contractual obligation; and as at 23rd December 2016, when Exhibit D1B was made, he had spent 14 years 10 months in Defendant’s employment and no money was paid to him in accordance with the internal memo to represent the terminal benefits for the long period of service. He further states that he instructed the Defendant to liquidate all his unearned income, share loan facility and redundancy payment into his mortgage loan facility, because he believed he is entitled to end of service benefit in line with the staff handbook. He tendered 13 documents which were marked as Exhibits 1 to 13. These are offer of employment, confirmation of appointment, promotion letter dated 2nd August 2004, Defendant’s re-engagement letter dated 24th January 2006, promotion letter dated 26th March 2008, promotion letter dated 31st December 2010, letter of commendation dated 7th January 2011, congratulatory letter dated 1st July 2012, Defendant’s letter dated 26th April 2018, Personnel Policies and Procedure Guide version 2.8, letter of retirement dated 12th March 2018, Claimant’s letter dated 25th July 2019 and his electronic statement of account respectively. Under cross examination, he confirmed that he was employed on 18th December 2002 and disengaged on 9th April 2018. As at January 2016, he had worked with the Defendant for 13 years and 10 months. He admitted that the Defendant can review the staff handbook unilaterally based on clauses 1.0 and 3.1 and communicate the amendments to the staff accordingly. He also admitted that Exhibits D1A and D1B were sent to all staff but denied receipt of the email. He equally admitted that every staff who had put in 15 years as at 31st December 2015 was paid retirement benefits and gratuity.

     

    21.       Defendant disclaimed liability to the Claimant, and states that the Claimant resigned his appointment by letter dated 12th March 2018, notwithstanding the caption of the letter. It is Defendant’s case that in December 2014, the policy on gratuity was changed and this was communicated to all staff by email dated 24th December 2014, Exhibit D1A, to the effect that the gratuity scheme would remain till 31st December 2015, and by 15th December 2016, voluntary retirement was abolished, and any staff who has not attained 55 years can only resign and not retire. This was also communicated to the staff by email dated 23rd December 2016, Exhibit D1B. It states that by the time Claimant disengaged, he was fully aware of the change in policy and with full knowledge that he was not entitled to any gratuity or retirement benefit, Claimant entered into series of email correspondence with it and advised it to apply all monies due to him including share loan facility towards liquidation of his mortgage loan. It was acknowledged that Claimant on 29th August 2018 requested for a revised end of year service computation which was sent to him by email dated 8th February 2019. It equally states that Claimant is aware of the policy that where a staff who was granted loan resigns, after being advised of his financial status, the staff will be given 3 months to liquidate the loan, failing which the prevailing market rate of 32% will apply to the loan. By its letter of 7th February 2019, it advised the Claimant that the balance on his mortgage loan was N4, 862,779.85 and requested that the outstanding be liquidated it within three months; but he failed to do so within the time allowed him and further extended time, consequently commercial interest of 32% was applied to the loan. Defendant also states that Claimant’s letter of 15th July, 2018 [sic 25th July 2019] is an afterthought aimed at blackmailing it into doing a policy somersault. It further states that the property financed with the loan is mortgaged to it and Claimant is not entitled to the title documents having not repaid the loan. The Court was urged to dismiss the suit. Defendant tendered 6 documents marked Exhibits D1A to D1F. These are emails dated 24/12/2014, 23/12/16, 10/8/2018, 29/8/2018 and 5/2/19 and letter dated 7/2/2019 with attached documents. In cross examination, defence witness admitted that when he joined the Defendant in 2008 the policy was in place, and Exhibit 10 regulates the Defendant’s staff and is usually updated anytime there is a review. The current version is 3.0 reviewed in December 2019. He confirmed that as a senior manager, if Claimant was resigning, he was supposed to give three months’ notice or pay three months’ salary in lieu of notice, but he did not give three months’ notice. He explained that Claimant was not paid retirement benefit because there was no retirement policy at the time he retired. It is his evidence that Exhibit D1B did not revoke Exhibit 10.

     

    22.       It is the law that in an employment disputes, the applicable conditions of service or any other stipulation incorporated or deemed to have been incorporated into it are what the Court must refer to and apply in resolution of the dispute. See Gbedu & Ors. v. Itie & Ors. [2020] 3 NWLR [Pt. 1710] 104 at 126, Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108 and Jowan & Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 24. It is equally trite that where there are many documents incorporating the terms and conditions of employment, the Court will not look outside those terms in deciding the rights and obligations of the parties thereto. See Jowan & Ors. v. Delta Steel Company Ltd.[supra] at page 25.

     

    It is clear from the evidence that Exhibits 1, 10, D1A and D1B regulate the employment relationship between parties to this suit. Exhibit 10, the staff handbook, is the principal document which sets out the terms and conditions of employment and overrides every letter of appointment or any form of contract which provisions are inconsistent with its stipulations, see paragraph two of clause 3.1 of the staff handbook. Parties agree that the Defendant can amend the staff handbook without consulting the employees but must communicate the variations to the employees. Defendant contends that, acting within its powers pursuant to clauses 1.0 and 3.1 of the staff handbook, it amended the policy on gratuity and retirement and communicated same to the employees through Exhibits D1A and D1B. By this, the gratuity policy ceased on 31st December 2015, while the voluntary retirement scheme ceased on 31st December 2016. Qualifying employees were paid by the cut off dates. In his pleading and evidence, Claimant did not deny receipt of Exhibits D1A and D1B which, from a cursory look, evinces that it was sent to all staff, and by his position as senior manager, he ought to have received it. His contention, as I see it, is that Exhibits D1A and D1B cannot derogate from his existing rights under the staff handbook. A resolution of this issue can only be found by reading Exhibits 10, D1A and D1B together.

     

    23.       Clause 7.0 of the staff handbook deals with general staff welfare, remuneration and benefits. As rightly argued by the Claimant, clause 7.20 regulates end of service benefits, and clause 7.20.2[a] provides for voluntary retirement after a minimum of 15 years unbroken service. Clause 7.20.3 sets out the benefits. I observe that under “Key Notes to Revised Gratuity” it is stated that “The revised gratuity policy is subject to a viability review effective December 31, 2015 to determine continued relevance in line with the prevailing Bank and economic” [sic]. Exhibit 10 was reviewed in December 2015. Curiously, while Exhibit D1A was made on 24th December 2014, its provisions were not incorporated into the staff handbook which was reviewed one year after it was communicated to the staff. For this reason, I hold that Exhibit D1A did not vary the provisions of clause 7.20.3 of the staff handbook.

     

    Paragraph 5 clause 7.20.3 of Exhibit 10 provides for retirement benefits. Exhibit D1B was made on 23rd December 2016 and states that “the Board approved the cessation of the staff retirement scheme for all staff up to the Executives effective December 15, 2016.” In law, there are circumstances in which a repeal of an enactment is implied, and that is, where two acts of the legislature are plainly repugnant to each other that effect cannot be given to both at the same time, the latter will be read as having impliedly repealed the earlier. See Akintokun v. Legal Practitioners Disciplinary Committee [2014] LPELR-22941[SC] 64-66. Drawing from this principle, it is my humble view that although Exhibit D1B was not incorporated into the staff handbook as at the time Claimant disengaged from the Defendant, being latter in time, it effectively amended clause 7.20.2 of the staff handbook and cancelled employee voluntary retirement with effect from the date stated therein. The Claimant having received Exhibit D1B without protest and continued in Defendant’s employment until his disengagement in April 2018, cannot be heard to say it is contrary to his legitimate expectations.

     

    Claimant argued that Exhibits D1A and D1B were made mala fide and are wrongful and unjust. Defendant’s response is that for the Court to hold that Exhibits D1A and D1B were made mala fide, wrongful and unjust, the Claimant must prove that it was targeted against him personally. I agree with the Defendant’s submission. Being an allegation of fact, the onus is on the Claimant to prove what he asserts, see Section 136[1] of the Evidence Act, 2011. In Okoye v. INEC & Ors. [2009] LPELR-4727[CA] 24, the Court of Appeal noted that the concept of mala-fide which means bad faith implies actual or constructive fraud or a design to mislead or deceive another or neglect or refuse to fulfil some contractual obligation, not prompted by an honest mistake as to one’s right or duties but some sinister motive. From Exhibit D1B, it is clear that the policy cuts across board. No one was exempt except employees who have attained the mandatory retirement age. In this circumstance, the element of malice is absent as the policy is not targeted at the Claimant or any individual employee. The effect, therefore, is that Claimant’s letter of 12th March 2018, amounts to a resignation of appointment and not retirement.

     

    24.       Claimant urged the Court to presume the non-production of version 3.0 of the staff handbook against the Defendant pursuant to Section 167[d] of the Evidence Act, 2011. While the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, evidence on version 3.0 of the staff handbook was elicited during cross-examination. It was not pleaded by both parties. So, in my humble opinion, the evidence does come within Section 167[d] of the Evidence Act, 2011. I so hold.

     

    Perhaps I should mention that the guideline to clause 7.20 on page 55 of the staff handbook provides for three months’ notice of retirement, the same length of notice required by Claimant to resign his appointment. So, the question of Claimant not giving three months’ notice of resignation or paying three months’ salary in lieu of notice does not arise as he opted to use his outstanding leave days as part of the notice period. Arising from what I said above, and notwithstanding my finding that Exhibit D1A did not amend the staff handbook, the lone issue is resolved in favour of the Defendant and against the Claimant.

     

    25.      This leads me to the reliefs sought by the Claimant. Relief one is for a declaration that the Claimant is qualified to have voluntarily retired, from the employment of the Defendant, by the letter of 12th day of March, 2018 having spent over 16 [sixteen] years from 18th day of February, 2002 till the 9th day of April, 2018 in the employment of the Defendant, and therefore entitled to the end of service retirement benefits as provided for in Clause 7.20.3 of the Defendant’s handbook policy manual, The Personnel Policies and Procedure Guide (PPPG) version. 2.8. It is the law that a Claimant who seeks a declaratory relief must prove entitlement to the declaration notwithstanding any admission by the Defendant. See Ilori & Ors. v. Ishola & Anor. [supra]. Evidence which will support a legal right must be credible, cogent and convincing.  See Ibrahim v. Garki & Anor. [2017] 9 NWLR [Pt. 1571] 377 at 390. I found above that Exhibit D1B effectively amended clause 7.20.2 of the staff handbook and cancelled employee voluntary retirement. Accordingly, as at 12th March 2018, when Claimant gave notice of his retirement, the policy of voluntary retirement did not exist, and having not reached the mandatory retirement age of 55 years, he is not entitled to end of service retirement benefits. This relief, therefore, fails.  

     

    Relief two seeks a declaration that having voluntarily retired, having spent over 15 years in the employment of the Defendant by virtue of clause 7.20.2[a] of the Defendant’s handbook policy manual, and not having completed the repayment of the mortgage loan, the conditions of the grant of the loan would remain same as contained in clause 7.13.[a]–other conditions”, and the Defendant can only charge the Claimant 3.5% interest rate till the loan would be eventually liquidated. Having held that the policy of voluntary retirement did not exist as at 12th March 2018, when Claimant gave notice of his retirement, he could not have retired. Clause 7.13[a] page 45 of the staff handbook applies to employees who retired. Accordingly, Claimant is not entitled to interest at 3.5% on his outstanding loan but at a rate specified by the Defendant having disengaged in breach of the policy.

     

    Relief three is for a declaration that the Claimant is entitled to be paid the terminal benefits as contained in clause 7.20.3[b][ii] of the Defendant’s handbook. In his submission, Claimant referred to clause 7.20.3 of Exhibit 10, paragraphs 30 to 33 of his statement on oath and Exhibit 12 and submits that being a Senior Manager 3 at the time of disengagement, he is entitled to cash benefits of nine months’ basic salary, transport, and housing for each completed year of service; and that the sum of N69, 339,048.00 [sixty nine million, three hundred and thirty nine thousand, forty eight naira] end of service cash benefit remains unpaid despite several demands. He argued that the Defendant did not deny these allegations apart from the general traverse, and submits that it is trite law that what is not denied is deemed admitted, and as a result, he is entitled to the terminal cash benefits as contained in Exhibit 10. The law is fixed that a claim for declaration is not granted on admissions or absence of defence. The Claimant must establish his entitlement to the declaration before the Court can grant it. I adopt my reasoning and conclusions in reliefs one and two above and hold that the Claimant has not proved his entitlement to this declaration. Thus, this relief fails.

     

    26.      Relief four is for an order for immediate payment of the sum of N69, 339,048.00 [sixty nine million, three hundred and thirty nine thousand, forty eight naira] being the end of service cash benefit due to the Claimant from the Defendant as at the 9th day of April, 2018. This claim is ancillary to and dependent on relief three. Having found that the Claimant has not proved his entitlement to the declaration, the basis for the grant of this relief does not exist. See Atunka & Anor. v. Aboki & Anor. [2016] LPELR-41199[CA] 11.

     

    Relief 5 is alternative to relief four. It seeks an order for immediate payment of the sum of N69, 339.048.00 [sixty nine million, three hundred and thirty nine thousand, forty eight naira] being the end of service cash benefit due to the Claimant from the Defendant as at the 9th day of April, 2018 less the sum of N2, 086,305.74 [two million, eighty six thousand, three hundred and five naira, seventy four kobo], being the outstanding mortgage loan advanced to the Claimant, as at exit date of  9th April, 2018 with interest at the rate of 3.5% per  annum,  in a manner that is devoid of double charges, to the time of payment or the time of delivery of the judgment of this Court. I adopt my reasonings and conclusions in reliefs one to four above, and hold that this relief is not grantable since the principal reliefs have been refused. See Atunka & Anor. v. Aboki & Anor. [supra].

     

    Relief six is for an order reversing the interest rate of 32% to 3.5% from December, 2018 till November 2019 and till anytime thereafter, till judgment and crediting the account of the Claimant with the difference. I adopt my reasonings and conclusions and note that clause 7.13[a] of the staff handbook applies to retired staff. Having not retired in accordance with Defendant’s policy, I hold that Claimant is not entitled to this relief.

     

    Relief seven seeks an order setting aside every debit interest charge on the Claimant’s current account no. 5050035375 domiciled with the Defendant. This claim is dependent on the success of reliefs one to six. I adopt my reasonings and conclusions above and hold that the reliefs having failed, there is no justification for the grant of this relief. It is, therefore, refused.

     

    The next relief seeks an order directing the Defendant to release to the Claimant, within 14 days of the delivery of the judgment of this Court, all title documents in respect of the mortgage facilities approved and granted the Claimant, which are in the custody of the Defendant and prepare a duly executed Deed of Release to the Claimant. Defendant’s witness stated in paragraph 5[m] of his statement on oath that the title documents are collaterals for the mortgage loan, and having not paid down on the loan, Claimant is not entitled to a release of the title documents. Claimant admits that he is still indebted to the Defendant on the mortgage facility. Consequently, this claim has not been proved.

     

    The next relief is for general damages in the sum of N10, 000,000.00 [ten million naira] only for breach of contract, inconvenience, loss of good will and breach of legitimate expectation, which were all occasioned by the wilful default, failure, or wanton neglect of the Defendants to pay the retirement benefits of the Claimant despite several demands for the payment of same.  General damages are within the discretion of the Court to grant and it is awarded to assuage a loss caused by the act of the adversary. See Dauda v. Lagos Building Investment Co. Ltd. & Ors. [2010] LPELR-4024[CA] 19-20. The basis of the claim for general damages is Defendant’s refusal to pay Claimant’s retirement benefits. Having held that he is not entitled to retirement benefits, the basis for award of general damages does not exist. This claim also fails.

     

    27.       Reliefs 10 and 11 claim interest on the sum above at the rate of 10% till judgment is delivered and thereafter at the rate of 21% till Judgment is liquidated, and cost of the prosecution of this suit at the discretion of the Court. The law on pre-judgment interest is well settled and, for emphasis, interest may be awarded in two distinct circumstances, namely: as of right and where there is a power conferred by statute to do so in the exercise of the Court’s discretion. Interest may be claimed as of right where it is contemplated by the agreement between the parties, under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is claimed as a matter of right, the proper practice is to claim entitlement to it in the originating process, plead and prove facts which show such entitlement. See A.G. Ferrero & Company Ltd. v. Henkel Chemicals Nigeria Ltd. [2011] LPELR-12[SC] 20-21 and Interdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [2017] 13 NWLR [Pt.1581] 52 at 72-73. There is no pleading and no evidence on interest claim. The relief is not supported by the pleading. A relief must flow from the pleading. It cannot stand alone. See Umeanozie v. First Bank of Nigeria Plc [2016] LPELR-41038[CA] 13. Having refused all the monetary claims, the basis for award of interest does not exist.

     

    Also, cost follows events in litigation and a successful party is entitled to his cost. By Order 55 rule 1 of the Rules of this Court, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. Costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate his losses. The main aim of cost is to indemnify the successful party for his out-of-pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. Some of the factors to consider in awarding cost are filing fees paid, duration of the case, number of witnesses called by the party in victory, the vexatious nature of the action, cost of legal representation, monetary value at the time of incurring the expenses et cetera. See Nigerian Bank for Commerce and Industry & Anor. v. Alfijir [Mining] Nigeria Ltd. [1999] 12 SC [pt. II] 109 at 123-124 and Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] 34-35.

     

    Order 55 Rule 5 of the Rules provides that “In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.” Having found that the Claimant has not proved his claims in this suit, it cannot be said that he is entitled “to be indemnified for the expenses to which” he has been unnecessarily put in the proceedings. Both claims for interest and costs are, therefore, refused.

     

    28.      In the final analysis, I hold that the Claimant has not proved his case to entitle him to judgment. This suit fails in its entirety and it is hereby dismissed.

     

    I make no order as to costs.

     

    Judgement is entered accordingly.

     

     

     

    ………………………………………….

    IKECHI GERALD NWENEKA

    JUDGE

    19/3/2021

     

    Attendance: Parties are absent.

     

    Appearances:

     

    Peters O. Agboola Esq. with Busayo Adebola Esq. and Amarachukwu Oti Esq. for the Claimant

     

    S. W. Pepple Esq. with Eric Orji Esq. and Michael Bassey Esq. for the Defendant