In The Court of Appeal of Nigeria
On Friday, the 23rd day of March, 2018
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
CHINYERE B. AHARANWA (MRS.) –Appellant
1. PEOPLES BANK OF NIGERIA LIMITED
2. BANK OF AGRICULTURE LIMITED
(SUBSTITUTED FOR NIGERIAN AGRICULTURAL COOPERATIVE AND RURAL DEVELOPMENT BANK LIMITED PURSUANT TO ORDER OF COURT DATED APRIL 18, 2016) –Respondent
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Owerri, in Suit No. FHC/UMCS/107/2003, delivered on 11/7/2011 by Hon. Justice E.A. Olubanjo, wherein the Court dismissed the Claims of the Plaintiff (now Appellant) in its entirety.At the Lower Court, the Appellant, by originating summons, had filed the Suit on 26th June, 2003, seeking some reliefs, but the Suit was subsequently tried on the basis of pleadings, when Hon. Justice S. Yahaya on 20/11/2007 ordered pleadings, based on the Ruling that the facts were contentious requiring pleadings and oral evidence. Parties filed their written depositions and called witnesses.
In the main, Appellant’s claims against Defendants (now Respondents) were reliefs for payment of her full retirement benefits, which she said were short paid, and for immediate commencement of her pension payments, upon her retirement, deferred by her employers (Defendants) till she attained the age of 45 years pages 82 83 of the Records of Appeal. After hearing the case and considering the addresses of Counsel, the Learned Trial Judge, who heard the case, denovo, held against the Appellant (Plaintiff), as follows:
The Plaintiff is also aware that gratuity is calculated based on pensionable allowance. She testified to this effect, under cross examination. Plaintiff’s calculation of her gratuity is therefore wrong, since it is based on the wrong factors or indices. It is obvious, from the evidence before the Court, that even though paragraph 17 at page 12 of Exhibit A provides that the Pension Scheme may be modified by Circulars and Enactments in force, PW1 did not take into account any such circular (such as Exhibits C and D) but rather based his calculation only on the information he received from the Plaintiff and the provisions of Exhibit A to the exclusion of paragraph 17 thereof. His calculations were, therefore, inaccurate, since they did not take into account modifications to Exhibit A. I therefore cannot conclude that the Plaintiff’s gratuity was under paid and that she is entitled to the sum she is claiming for The Plaintiff not presented evidence to the effect that her pension payments, when they become due for payment are to be progressive and ought to reflect salary increments made to officers of the category at which she retired as she has claimed. It is trite that civil Suits are decided on the balance of probabilities. Having placed the evidence adduced by the Plaintiff and the Defendants on the imaginary scale of justice it tilts in favour of the Defendants Consequently, the Plaintiff’s claim fails and this Suit is dismissed. (See pages 284 285 of the Records).
That is the judgment Appellant appealed against, as per the Further Amended Notice of Appeal filed on 25/10/2016. Appellant filed her Amended Brief of Arguments on 25/10/16 and Amended Reply Brief on the same date. She distilled three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the Lower Court was right in law in its use and application or consideration of Exhibit B8 (i.e. conditions of service of 2nd Defendant of January, 2003) to interpret the terms of agreement binding between the parties in the case, rather than Exhibit A alone, which was in force in 2002, when Plaintiff retired from employment of 2nd Defendant. Ground 1
(2) Whether the Lower Trial Court was right in law in its decision that Plaintiff’s retirement from the 2nd Defendant’s employment was neither compulsory retirement nor was it a retirement that arose from abolition of her office in the 2nd Defendant’s establishment. Grounds 2, 3 and 4.
(3) Whether the Lower Court was right in law to refuse Plaintiff her reliefs (a) (g) as contained in her statement of claim. Grounds 5, 6 and 7.
The Respondents filed their Amended Brief of Arguments on 3/11/16, along with Amended Notice of Respondent’s intention to rely on preliminary objection, pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011.
The objection was mainly against ground seven of the appeal, that the ground was incompetent because it was not a proper omnibus ground of appeal in a civil appeal.
In the Amended Respondents Brief, the Respondents adopted the three (3) Issues, as distilled by the Appellant, for the determination of the Appeal.
Because the Respondents Notice of preliminary objection touched on only the ground 7 of the appeal, that it was not competent, it shall not be taken as Preliminary Objection, in the real sense of the word, but as an objection to the said ground, which can be taken up at the argument of the Respondents brief. See Onuegbu & Ors Vs Gov. of Imo State (2015) LPELR 25968 CA:
Preliminary objection, pursuant to Order 10 Rule 1 of this Court’s Rules 2011, is not the option, where a party is merely objecting to the competence of a ground(s) of appeal or issue distilled therefrom. A preliminary objection can only apply where there is objection to the competence of the appeal, as a whole See Alaribe Vs Okwuonu (2015) LPELR 24297 CA; Adejumo Vs Olawaiye (2014) 12 NWLR (Pt.1421) 252 at 256.
Arguing the on 13/8/2018, Appellant’s Counsel, O.C. Ewurum Esq., on Issue one, submitted that the claim of the Appellant in the Suit centered on the wrong classification of the nature of withdrawal of Appellant from service, short payment of her disengagement entitlements, he said the issue was not one for wrongful disengagement; that a clear appreciation of Appellant’s entitlements, will depend on whether Exhibit A was applicable to her case or Exhibit B8; that though the two documents appeared similar, a closer scrutiny would spot the differences, in respect of their effect on compulsory retirement and abolition of office.
For example, Counsel said on the issue of time of payment of pension, clause 8(f) of Exhibit A provides that all pension payments are to be deferred until the staff attains the age of 45 years, except in the case of compulsory retirement when it commences immediately on such retirement; that on abolition of office, Article 15 of Exhibit A only provides 10% of final total emolument payment to retiring staff, in addition to normal pension entitlement; that Exhibit A does not make for immediate payment of pension on ground of abolition of office. Counsel referred us to pages 165 and 168 of the Records of Appeal.
In contrast, Counsel said, a community and holistic reading of Clauses 11.4.1 and 11.6.13(a) (b) (c) of Exhibit B8, shows that all pension due are payable at once, upon retirement, irrespective of the fact that the staff has not attained the age of 50 years. He referred to pages 212 213 of the Records.
On which of the two documents applied to the Appellant, Counsel said that could only be decided based on:
(a) The one agreed to by the contracting parties, and
(b) The one that applies by operation of law.
He said that Exhibit A was applicable, because the parties agreed and admitted so, as per the pleadings of the parties, wherein the parties adopted the age of 45 years as the pensionable age, as per Exhibit A. He argued that Exhibit B8 was not applicable in the case; that Exhibit B8, being in form of a Collective Agreement between Employer and Employee, cannot be binding on the parties, unless there is shown an agreement between the Employer and the Employee to be so bound, as was held in the case
of UBN Ltd Vs Edet (1993) 4 NWLR (Pt.287) 288; Texaco Vs Kehinde (2002) FWLR (Pt.94) 143. Counsel submitted that the trial Court was wrong to copiously refer to and rely on Exhibit B8 to interpret the issues in contention in the case relating to what amounted to compulsory retirement, abolition of office; whether Appellant was entitled to immediate payment of pension. He referred us to pages 281 283 of the Records, where the trial Court made use of both the Exhibits A and B8 to reach its decisions. He said the trial Court should have limited the use of Exhibit B8 to the purpose for which Appellant pleaded and tendered the said document.
On Issue 2, Counsel said the trial Court had ruled on page 283 of the Records that the retirement was voluntary and not compulsory and that the Plaintiff therefore failed to prove that her post with the bank was abolished (page 282 of the Records). Counsel relied on Exhibit A, to say that the retirement of the Appellant from the employment of the 2nd Respondent was neither a product of election nor a voluntary act, as the option to retire was occasioned by interference and was not free from solicitation.
He called us to consider the meanings of compulsory and voluntary and whether one could be compelled or induced to take a decision, which may, on the face of it, appear voluntary. He concluded that Appellants retirement was compulsory in the circumstances and that the same amounted to retirement by reason of abolition of her office. He urged us to answer the issue 2 in the negative considering the threat and pressure mounted on Appellant to retire, and the consequences of failing to comply.
On Issue 3, whether the trial Court was right to refuse the Appellant her reliefs (a) to (g), Counsel answered in the negative. Counsel said the Court did not properly interpret Exhibits E, F and G; that Exhibit F showed fear, intimidation and surrender to threat, but the Court overlooked those effects. He said that even the language of Exhibit B3 was a thorough threat and undue instigation and solicitation for the Appellant to retire or face something unpleasant; that the Court was wrong to hold otherwise.
Counsel said that the evidence of the Plaintiff coupled with admission by the defence, ought to have sustained her reliefs, yet the Lower Court deprived her all the reliefs.
Counsel urged us to resolve the Issues for the Appellant and allow the appeal.
The Respondent’s Counsel, A.I. Nwachukwu Esq., on Issue 1, submitted that the Lower Court was right to use and apply Exhibit B8 (Conditions of Service of 2nd Defendant of January 2003) to interpret the terms of agreement binding between the parties in the case, rather than Exhibit A, alone, which was in force when the Plaintiff retired from the 2nd Respondent. He said that the Plaintiff had pleaded the Exhibit B8, as having abolished her position in the 2nd Respondent (paragraph 11 of the Statement of Claim), allegation which Respondents denied in paragraph 8 of their defence See pages 80 and 85 of the Records of Appeal.
Counsel submitted that by law, a document pleaded to establish a particular fact cannot be used to prove another fact which is not an issue in the pleadings. He relied on Omegabank Nig. Plc Vs O.B.C Ltd (2005) ALL FWLR (Pt.249) 1964 at 1997; Onwumere Vs Agwunedu (1987) 3 NWLR (Pt.62) 673.
He argued that the alleged abolition of the office of the Appellant, correct calculation and payment of her pension and gratuity and whether her retirement from service was compulsory or voluntary from service were in issue; that the Lower Court had to interpret the contents of Exhibits A and B8 (among
others) tendered by Appellant, to reach its decision. Counsel referred us to the address of Counsel for Appellant, on pages 254 to 266, where he addressed the trial Court, extensively, on the contents of Exhibit B8, in support of Appellant’s case. He said that Appellant cannot condemn the use of Exhibit B8 by the trial Court to reach some conclusion in the case, having cited, tendered and relied on the same at the trial; that a party is not allowed to make case on appeal, diametrically opposed to the case he presented at the Lower Court. He relied on Akuneziri Vs Okenwa (2001) FWLR (Pt.35) 604.
Counsel further submitted that if the Exhibit A was the only basis of consideration of the case by the lower Court, Appellant would still not qualify to be paid pension, immediately, until she attained the age of 45 years; that the trial Court made that findings on page 283 of the Records, which showed that Appellant was 39 years old at the time of filing the Suit; he said that that findings was not appealed, and so remained binding Olukoya Vs Ashiru(2006) ALL FWLR (Pt.322) 1479 at 1498; Osunbor Vs Oshiomhole (2009) ALL FWLR (Pt.463) 1366 at 1425.
On Issue 2, challenging the holding of the trial Court that Appellant’s retirement was neither compulsory nor occasioned by abolition of her office in the 2nd Respondent, Counsel submitted that the trial Court was right. He placed reliance on Exhibits B3, B4 and B5 Exhibit B3 being letter from 2nd Respondent to Appellant, dated 3/5/02, captioned Severance package for Voluntary Withdrawal of Service; that upon that offer for voluntary withdrawal of service by the Respondents, Appellant wrote on 3/6/02, to accept the offer of voluntary withdrawal of her services (Exhibit B4), responding to the 2nd Respondent offered in Exhibit B3; that the 2nd Respondent wrote Exhibit B5, dated 5/8/2002, to approve the severance of her employment with 2nd Respondent, with effect from 16/7/2002.
Counsel said that the operative word in the Exhibit B3 was Voluntary, which Appellant opted to embrace. He relied on the Black’s Law Dictionary, 6th Edition, page 1575, for the meaning of the word Voluntary. He asserted that the withdrawal of service was voluntary, not compulsory retirement. He argued that the law is that, where the words of a contract, agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning, and that parties are bound by the terms of agreement they enter into. He relied on Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) ALL FWLR (Pt.357) 837 at 851; Dalek Nig. Ltd Vs Oil Mineral Producing Areas Development Commission (OMPADEC) (2007) ALL FWLR (Pt.364) 204 at 236.
Counsel added that the reasons for the offer of voluntary withdrawal of service, made in Exhibit B3 to the Appellant, was to achieve optimal staff strength as a result of restructuring of the 2nd Respondent; and that it was not made because the office of the Appellant was abolished.
On Issue 3, whether the Lower Court was right to refuse the reliefs sought by Appellant, Counsel answered in the affirmative; he said that because Appellant’s withdrawal of service was voluntary, she was not entitled to immediate payment of pension, as she had not attained the age of 45 years at the date of the voluntary retirement; he admitted that Appellant had put in 12 years of unbroken service before the voluntary retirement. He relied on articles 8 and 9 of Exhibit A, relating to the payment of pension and gratuity to Appellant. Thus, Counsel said, the claim for payment of pension was pre-mature and incompetent, as that cause of action did not arise,
until Appellant was 45 years old. He relied on SPDC Vs Farah (1995) 3 NWLR (Pt. 382) 148 at 186; Kadzi International Ltd Vs Kano Tannery Co. Ltd (2003) FWLR (Pt.184) 255 at 284.
Counsel said Appellant was not underpaid her gratuity by the sum of N250,199.24 or by any other sum.
Counsel pleaded the presumption of regularity of the calculation of the gratuity, until the Appellant could prove to the contrary. He relied on Section 131(1) and 135(1) of the Evidence Act, 2011, and also founded on the evidence of DW1, who stated how the gratuity was calculated based on pensionable allowances, which Appellant agreed to. (Pages 119 120 and 138 of the Records).
Respondents also argued that ground 7 of the appeal was incompetent and urged us to strike it out, together with the issue therefrom.
Counsel urged us to resolve the Issues against Appellant and to dismiss the appeal.
Appellant’s Reply Brief was on the preliminary objection. Appellant said the Respondents were merely being unduly
technical about the phraseology of that ground of appeal; that it was obvious what the ground 7 was complaining against, the decision was against the weight of evidence, though it was couched the decision of the trial Court is unreasonable and against the weight of evidence and cannot be supported!
Counsel admitted that the above phraseology was more proper with criminal appeals Atuyeye Vs Ashamu(1987) NWLR (Pt.49) 267; Oge Vs Ede (1995) 3 NWLR (Pt.385) 564; Biyo Vs Aku (1996) 1 NWLR (Pt.422) 1. But Counsel relied on Mogaji Vs Odofin (1978) 4 SC 91; Nwankpu Vs Ewulu (1995) 7 NWLR (Pt.407) 269 and Ezeoke Vs Nwagbo (1988) NWLR (Pt.72) 616, to say that what is important in civil appeal is to couch the omnibus ground to show that the decision of the lower Court is against the weight of evidence. Counsel said the Court should always be guided, on this, by the admonition of Supreme Court in the case of Bello Vs A.G. Oyo State (1986) NWLR (Pt.45) 328, where my lord, Karibi Whyte JSC, said:
I am speaking the mind of all engaged in the administration of justice, not only in this Court, but in all Courts of this Country, that the day the Courts will allow the inarticulacy or ignorance of Counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwilling enthronement of injustice, aided by the Court, itself, by default.
Counsel urged us to discountenance the objection, in the light of the above admonition, and hold that the ground 7 was only expressing the threat that the decision of the Lower Court was against weight of evidence.
RESOLUTION OF ISSUES
I shall consider this appeal on the 3 (three) Issues donated by the Appellant, which were adopted by the Respondents but a closer look at the said three Issues shows they are all related, and question:
Whether the trial Court was right to refuse the reliefs sought by the Appellant, relying on the Exhibit B8 (instead of Exhibit A) and saying that the retirement of Appellant was neither compulsory nor as a result of abolition of the office of the Appellant in the 2nd Respondent.
A brief fact of the case at the Lower Court showed that Appellant was a staff of the 2nd Respondent on salary Grade Level GL.5.2, with total annual package of N374, 451.00 before she retired. The 1st Respondent which employed Appellant was later re-organized and merged with the 2nd Respondent, and the
staff absorbed in the 2nd Respondent. Appellant, under the Respondents wrote to withdraw her services, following an advice or offer by the 2nd Respondent in a letter, Exhibit B3. The letter of retirement (or withdrawal of service) by the Appellant was Exhibits B4.
Appellant had filed Amended Originating Summons, seeking to know:
“(1) Whether by the express provisions of the 1st Defendant’s staff Pension Scheme Members Handbook, the Plaintiff who has put in 12 years of continuous and unbroken services with the 1st Defendant is not entitled to immediate payment of pension having been asked to compulsorily withdraw from the services of the 2nd Defendant pursuant to a merger and restructuring exercise of the Defendant giving birth to the 2nd Defendant (Underlining mine).
(2) Whether on a proper interpretation of the conditions of service, the Plaintiff who was on Salary Grade Level G5.2 and a total annual package of N374, 451.00 before her said compulsory withdrawal of service was not short paid in her gratuity by the Defendants when her gratuity was computed based on N334,024.37 as her purported annual package.
It should be noted that Appellant’s earlier Issue (1) for determination (before the Amendment of the Originating Summons) was:
Whether by the express provisions of the 1st Defendant’s Staff Pension Scheme Members Handbook the Plaintiff who has put in 12 years of continuous and unbroken service with the 1st Defendant is entitled to pension having been asked to voluntarily withdraw from the service of the 1st Defendant, pursuant to a merger and restructuring exercise of the Defendant giving birth to the 2nd Defendant. (Underlining mine)
However, despite the allegation that she was asked to compulsorily withdraw from the services of the 2nd Defendant pursuant to the merger and restructuring exercise of the Defendant, giving birth to the 2nd Defendant, Appellant said in paragraphs 15 and 16 of the Affidavit in support of Amended Originating Summons:
(15) That I perceived that the other alternative strategy would be to dismiss me from services and in order to avoid such scenario, I applied and opted to voluntarily retire from service.
(16) That in my reply accepting to withdraw, I reminded the Management of the 2nd Defendant of the need to commence the payment of my Pension in earnest and to release my other entitlements, correctly. A copy of my letter, dated 3rd of June, 2002 to this effect as well as a copy of a computer printout for the month of February 2002 of the 2nd Defendant is herewith attached
To start with, I think the Respondents objection to ground 7 of the appeal, relating to the couching of the ground that the decision of the trial Court is unreasonable and against the weight of evidence and cannot be supported is a mere attempt at splitting hair (which is difficult). The Respondents admitted that such manner of couching omnibus ground of appeal is available in criminal appeals; that in civil appeal the proper way of couching omnibus ground is to say that the judgment is against the weight of evidence.
This being a civil appeal, I do not think the Respondents are misled, in any way, as to the complaint of the Appellant in the ground 7 of the appeal, that it is an expression that the judgment is against the weight of the evidence before it, or that the Court did not, properly, preponderate the evidence adduced to
reach its conclusion, which evidence did not support the judgment.
Order 7 Rule 3 of the Court of Appeal Rules, 2016, states the need to disclose reasonable ground(s) of appeal, that a ground of Appeal shall not be vague or general in terms, save the general ground that the judgment is against the weight of evidence. That, I think, is where the popular omnibus ground of appeal is derived in civil appeal, and every rule of Court relating to appeal has similar provision, with which Appellant can question, generally, the evaluation of evidence by the trial Court, to arrive at its decision.
I do not think an Appellant is bound to repeat the exact technical words the Judgment is against the weight of evidence, before such is taken as omnibus ground or before that ground of appeal is accorded legal recognition, to question the way the trial Court evaluated the evidence before it to reach its decision in civil cases. To do so, in my opinion, would amount to pandering to undue technicality on the issue, at the expense of the interest of justice. See Atuyeye & Ors Vs Ashamu (1987) LPELR 638 (SC), where the Supreme Court said:
It is pertinent to set down the provisions of Order 3 Rule 2(2), 4 of the Court of Appeal Rules, 1981 These rules which relate the appeals in civil cases are directed against (1) appeals on grounds of law, Order 3 Rule 2 (2), and;
(2) grounds which are vague, and expressed in general terms, thereby disclosing no reasonable ground of appeal Order 3 Rule 2 (4).
This last mentioned sub-rule expressly saves from invalidity appeals in civil cases on the ground that the judgment is against the weight of evidence. See also Finnih Vs Imade (1992) LPELR 1277 (SC); Anachuna Anyaoke & Ors Vs Dr. Felix Adi & Ors (No.2) (1986) 3 NWLR (Pt.31) 731 at 742; Mogaji & Ors Vs Odofin & Ors (1978) 4 SC 91.
In Afolabi Vs Tejuoso & Anor (2017) LPELR 42543 CA, this Court said:
When an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, the judgment in the Respondent’s favour is against the weight which should have been given, having regard to the totality of the evidence. An omnibus ground of Appeal is a general ground of fact complaining against the totality of the evidence at the trial. It is not against specific finding of fact or any document. It cannot be used to raise any issue of law or error in law.” See Akinlagun Vs Oshoboja (2006) 12 NWLR (Pt.993) 540.
I think, since Appellant, clearly, indicated that she intended to raise omnibus ground of appeal, that the judgment is against the weight of evidence, it would be unfair to read extraneous interpretation into it, because of the inelegant manner with which it was couched, and to use that to defeat the ground of appeal. See the admonition of Karibi-Whyte JSC in Bello Vs A.G. Oyo State (1986) NWLR (Pt.45) 328.
The objection is dismissed.
However, I find it difficult to appreciate the whole essence of Appellant’s complaint in this appeal, where she quarreled with the use and application of Exhibit B8 (the Conditions of Service of 2nd Respondent between Employer and Employees) which Appellant, herself, relied upon at the trial, and produced as Exhibit in the case, and where she faulted the decision of the trial Court founded on the findings that her withdrawal of services, was voluntary, (albeit on the counseling, advice or prompting of the 2nd Respondent).
There is evidence that Appellant was the one who wrote the Exhibit B4 Acceptance of Offer of Severance Package for Voluntarily Withdrawal of Service. The said Exhibit B4 followed the Offer in Exhibit B3, which was written by the Managing Director of the 2nd Respondent to the Appellant on 3/5/2002. The substance of the letter (Exhibit B3) states:
SEVERANCE PACKAGE FOR VOLUNTARY WITHDRAWAL OF SERVICE
As you are aware, the Bank is currently undergoing a major organizational restructuring following the merger of the Former National Agricultural and Co-operative Bank (NACB), the Peoples Bank of Nigeria (PBN) and the risk assets of the Family Economic Advancement Programme (FEAP). The successful implementation of this restructuring exercise will result in the reduction of the staff strength of the new Bank. In order to facilitate the achievement of the above objective, the Board of the Nigerian Agricultural, Co-operative and Rural Development Bank (NACRDB) has recently approved the extension of an enhanced severance package for staff who opt to withdraw their services with the Bank, voluntarily, in addition to the payment of the normal retirement benefits. In your own case, the approved severance package encompasses the following:
(i) Payment of one (1) year basic Salary of N165, 014.00
(ii) Payment of gratuity = N334,024.37
Please note that your outstanding loan of N61,883.28 will also be waived.
Should you opt to accept this offer, please endeavor to let us know in writing within two (2) weeks of the receipt of this letter in order to arrange for the immediate payment of your entitlement, as itemized.
You are to please note that the failure to achieve the optimal staff strength for the new Bank through the above means may result in the implementation of an alternative strategy for achieving same See page 175 of the Records.
Appellant’s reply to the above letter is the Exhibit B4, on page 176 of the Records, wherein she said:
I humbly wish to refer to your letter on the above subject matter According to your directive, and also based on the conditions stated in your letter referred above, I wish to accept the offer. However, I wish to point out some errors in your letter that need to be rectified:
(1) I am an Officer on grade level G.5.2 not G.5.1
(2) My total annual package is N374,451.00 not N334,024.37 as stated in your letter (payment of gratuity).
(3) I have been in the service of the Bank for 12 (twelve) years.
Please Sir, adjust your records, accordingly so that the computation of my other retirement benefits will not also be affected with the same error (pension which I believe is coming at your earlier convenience), I also express my profound gratitude for my staff loan waived. Finally I wish to thank the Management of NACRDB for the opportunity
From the above, it is clear to me that it was Appellant who elected to withdraw her services voluntarily, taking advantage of the package in the offer letter by the 2nd Respondent. Appellant cannot, therefore, turn round to plead and claim that the retirement was imposed on her compulsorily! She had acknowledged the obvious in paragraphs 15 and 16 of her affidavit (earlier referred), which completely undermined and negated her relief number (e), and other claims consequent upon the same.
Appellant had queried the use and application of the Exhibit B8 (Conditions of Service of the 2nd Respondent, 2003) to interpret the terms of agreement binding between the parties in the case, rather than relying on Exhibit A, alone, which she said was in force as at 2002, when Appellant retired.
Appellant had pleaded the said documents (Exhibits A and B8). In paragraph 3 of her pleading, she averred that 2nd Respondent came to being in 2001, as a result of the merger. In paragraph 8, she averred that she was posted by 2nd Respondent to Aboh Mbaise Branch as Officer in 2001. She pleaded the Exhibit B8 in paragraph 11, as the conditions of service of the 2nd Respondent. She gave evidence in line with the evidence. See pages 134 138 of the Records.
On page 137 of the Records, she said, under cross examination:
I am aware that under Exhibit A, it is only when the 2nd Defendant compulsorily retires staff that they are entitled to pension, and payment of pension for those voluntarily retired doesn’t commence until the employee attains the age of 45 As at 26/6/02 when I filed this Suit I was 39 years old.
She was shown Exhibit B8 and she said the provision in Exhibit B8, Schedule I, was made for officers but not officer secretarial.
Because Appellant’s retirement was voluntary, she could not establish any entitlement to immediate pension, upon retirement as she admitted she had to wait until she was 45 years old, in accordance with Exhibit A, paragraph 8 thereof. She was 39 at the time of filing the Suit.
I think the trial Court was therefore right to hold that Appellant’s retirement from the 2nd Respondent was neither compulsory nor on the basis of abolition of her office in the 2nd Respondent.
I do not think it is necessary to go through the troubles of checking out the meaning of the words voluntary or compulsory as applied to this appeal, since the Appellant had admitted opting to with-draw her services from the 2nd Respondent by means of Exhibit B4, following the offer to her by 2nd Respondent in Exhibit B3, and she knew what she was doing, as she was taking advantage of the offer by 2nd Respondent to pay her salary for one year, forgive her debt of N61,883.28 and pay her gratuity. See page 175 of the Records.
The issue of immediate payment of pension was not part of the offer in Exhibit B3, and Appellant cannot read that into the offer. The claim that the withdrawal of her service was not voluntary, simply because it was offered by 2nd Respondent or that she was motivated by the Respondent to take that decision, appears to be an afterthought, and unreasonable.
The law is trite, that where the words of a contract, agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning. Where parties enter into an agreement, upon their common understanding of the clause(s) therein, they would be bound by the agreement, and none would be allowed to import strange interpretation into the document, just to suit his selfish intention to back out of the agreement. See Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) ALL FWLR (Pt.357) 837. Amizu Vs Nzeribe (1989) 4 NWLR (Pt.118) 755; Oduye Vs Nigerian Airways Ltd (1987) 2 NWLR (Pt.55) 126.
See also the case of Dalek Nig. Ltd Vs OMPADEC (2007) LPELR 916 (SC); (2007) 7 NWLR (Pt.1033) 402, where it was held:
It is now settled that where the words of a contract, agreement or document are clear,the operative words in it should be given their simple and ordinary grammatical meaning. Union Bank of Nigeria Ltd Vs Sax Nig. Ltd & Ors (1994) 9 SCNJ 1; (1994) 8 NWLR (Pt.361) 150.
Were the reliefs (a) to (g) sought by the Appellant grantable, in the circumstances?
I had earlier said that the reliefs (a) and (e) were founded on error and mis-calculation, or on misapprehension. Because the retirement was not compulsory (relief (e)), the pension payable to Appellant could only become due upon Appellant attaining 45 years of age. The reliefs (b) (c) (d) and (g) would therefore appear to be affected, as the basis of their calculation therefore become unrealistic, especially as the relief (c) that Plaintiff’s pension was progressive and should be paid to reflect any salary increment made to officers of the category of which Plaintiff retired at any given point in time appears wanting in valid cause of action, suggesting futuristic action, since Appellant’s pension could only be an issue, upon her attaining the age of 45 years! There was therefore no cause of action on the issue.
I have not also seen where the Appellant led evidence to establish her calculations, and the claim that she was short paid (or under paid) her gratuity by over N250,000.00. She had earlier hinted in Exhibit B4, that her salary was grade level 5.2 not 5.1, and so her annual total package was (not N334,024.37 proposed by the Exhibit B3, as her gratuity). The Respondents did not react to the Appellants claims in Exhibit B4, and as long as no reconciliations were made in that regard, Appellant, certainly, had difficulties establishing the reliefs (b) and (g) as to the alleged N250,119.24 under payment. The findings of the trial Court thereon cannot be faulted, when it said:
His calculations were therefore inaccurate, since they did not take into account modifications to Exhibit A. I therefore cannot conclude that the Plaintiff’s gratuity was under paid and that she is entitled to the sum she is claiming for The Plaintiff not presented evidence to the effect that her pension payments, when they become due for payment are to be progressive and ought to reflect salary increments made to officers of the category at which she retired as she has claimed. It is trite that civil Suits are decided on the balance of probabilities. Having placed the evidence adduced by the Plaintiff and the Defendants on the imaginary scale of justice it tilts in favour of the Defendants Consequently, the Plaintiff’s claim fails and this Suit is dismissed. (See pages 284 285 of the Records).
It is not for an employee to establish what are his entitled salary and other remunerations, as that appears to be within the domain of the employer, except and until the employee is paid by the Employer, as per their agreement. It is then that the employee can have something to produce (the last pay slip) as evidence to establish his claims as to the prevailing pay package. I do not think Appellant did that, correctly, in this case.
I cannot see any merit in this appeal and so resolve the issues against the Appellant, and dismiss the appeal.
Parties shall bear their respective costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: My learned brother, Hon. Justice Ita George Mbaba, JCA, afforded me the opportunity to read in advance and while in draft, the lead judgment which has just been delivered. I am in complete agreement with the reasoning and conclusion reached that the instant appeal matter lacks substance and merit and deserves nothing short of an order of dismissal. I also adjudge the appeal to be unmeritorious and it is accordingly dismissed by me. I abide by all the consequential orders made in the said lead judgment, including the one made with regard to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
O.C. EWURUM ESQ.- For Appellant
A.I. NWACHUKWU ESQ. –For Respondent