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The claimant took up a complaint against the defendant dated and filed on 27th February 2012. This complaint and its accompanying statement of facts dated 22nd February 2012 were later amended in terms of the sum of money claimed as per relief (f). In their amended form, therefore, the claimant is praying for – (a) A declaration that the claimant is entitled to his full salary from the 5th of October 2009 till the 21st of December 2010 when his employment was purportedly terminated. (b) A declaration that the claimant is entitled to his monthly pension with effect from the 21st day of December 2010. (c) A declaration that the claimant is entitled to his share certificate as stated in paragraph 6 of the statement of facts. (d) A declaration that the continuous running of interest in the loan account of the claimant after his terminal benefit was paid into the account and when the defendant has not started paying the claimant pension is null void (sic). (e) An order of this Honourable (sic) compelling the defendant to pay the claimant the sum of N4,433,196.82 (Four Million, Four Hundred and Thirty Three thousand, One Hundred Ninety Six Naira, Eighty Two kobo) being his salaries from the 5th of October 2009 to the 21st of December 2010 and interest on the said sum at the rate of 27% per annum from the 21st of December 2010 till judgment is delivered and at the rate of 10% monthly from the date of judgment till the said sum is liquidated. (f) An order of this Honourable Court compelling the defendant to pay to the claimant the sum of N231,512.50 (Two Hundred and Thirty One Thousand, Five Hundred and Twelve Naira, Fifty kobo) being his outstanding gratuity and interest on the said sum at the rate of 27% per annum from the 21st of December, 2010 till judgment is delivered and at the rate of 10% monthly from the date of judgment till the sum is liquidated. (g) An order of this Honourable Court compelling the defendant to pay to the claimant his monthly pension of N84,887.91 (Eighty Four Thousand, Eight Hundred and Eighty Seven Naira, Ninety One kobo) with effect from the 21st day of December 2010 and interest on the sum at 27% per annum from the 21st day of December 2010 till judgment is delivered in this suit and at 10% from the date judgment till the sum is liquidated. (h) An order of this Honourable Court compelling the defendant to pay to the claimant the sum of N412,525.00 (Four Hundred and Twelve Thousand, Five Hundred Twenty Five Naira) (sic) being his long service award and interest on the said sum at the rate of 27% per annum from the 21st of December 2010 till judgment is delivered in this and at 10% monthly from the date of judgment till the sum is liquidated. (i) An order of this Honourable Court compelling the defendant to pay to the claimant the sum of N44,041.66 (Forty Four Thousand, Forty One Naira, Sixty Six kobo) being his location allowance from the 5th of October 2009 to 21st December 2010 and interest on the said sum at the rate of 27% per annum from the 21st of December 2010 till judgment is delivered and at 10% monthly from the date of judgment till the sum is liquidated. (j) An order of this Honourable Court compelling the defendant to release to the claimant his share certificate. (k) An order of this Honourable Court reverting the interest that accrued to the claimant’s loan account and reverting all other deductions in the said account from the 27th of May 2011 when the claimant’s purported gratuity of N4,977,518.75 (Four Million, Nine Hundred and Seventy Seven Thousand, Five Hundred and Eighteen Naira, Seventy Five kobo) was paid into the said account till the defendant starts paying the claimant his monthly pension. (l) An order of this Honourable Court compelling the defendant to issue to the claimant a letter showing that the defendant has remitted the claimant’s pension contribution to the claimant’s pension manager – Premium Nig. Ltd – and his contribution to the National Social Insurance Trust Fund. Accompanying the complaint and the statement of facts are the list of witnesses, list of documents and copies of the documents marked as Exhibits A – K. The claimant’s testimony on oath was later filed on 27th April 2012. The defendant entered appearance and then filed its statement of defence, list of witnesses, the witness statement on oath and a list of documents indicating that no document was frontloaded. The defendant later sought and obtained leave of court to file a list of additional document and a copy of the additional document marked Exhibit D1. The claimant reacted to the statement of defence by filing a reply to the statement of defence, a further statement on oath, list of additional documents and copies of the additional documents marked as Exhibits L1, L2, L3 and M. At the trial, the claimant testified on his own behalf as CW, while Joseph Ejembi, a Banker in the rank of Sub-Manager at the defendant’s Human Resources Department, testified for the defendant as DW. At the conclusion of trial, parties were asked to file their respective written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant’s written address is dated 23rd September 2013 but filed on 24th September 2013, while that of the claimant is dated and filed on 15th January 2014. The defendant did not file any reply on points of law. The case of the claimant is that he was an employee of the defendant who was wrongfully dismissed for gross misconduct. He appealed to the defendant who conducted an investigation in the matter and his dismissal was converted to termination through a letter dated 21st December 2010. That the defendant miscalculated the gratuity owed to him. That his outstanding gratuity is N231,512.50 (Two Hundred and Thirty One Thousand, Five Hundred and Twelve Naira, Fifty kobo). The claimant went on that the defendant failed to pay his salaries for the period of fourteen (14) months totalling the sum of N4,433,196.82 (Four Million, Four Hundred and Thirty-Three Thousand, One Hundred and Ninety-Six Naira, Eighty-Two kobo). In addition, that the defendant failed to pay him his outstanding location allowance for fourteen (14) months, which is N44,041.66 (Forty Four Thousand, Forty-One Naira, Sixty-Six kobo). Furthermore, that the defendant failed to pay him his long service award of N412,525.00 (Four Hundred and Twelve Thousand, Five Hundred and Twenty-Five Naira) and the monthly pension from 21st December 2010 which is N84,887.91 (Eighty Four Thousand, Eight Hundred and Eighty-Seven Naira, Ninety-One kobo). Lastly, that the defendant failed to release to him the certificate of the shares gratuitously given to him by the defendant. On the other hand, the case of the defendant is that the claimant is a former employee of the defendant, who was employed as a clerk on 22nd October 1990. That the claimant was summarily dismissed by the defendant on 5th October 2009 for gross misconduct. The claimant was, however, given a letter dated 21st December 2010 purportedly converting his dismissal to termination. That the claimant did not come to work during the time he was dismissed in October 2009 till the time his dismissal was purportedly converted to termination in December 2010. The defendant continued that the claimant’s gratuity was calculated and paid into his account with the defendant and used to set off part of his indebtedness with the defendant. That the claimant’s pension has not been paid in accordance with the applicable law. That the claimant was indebted to the defendant to the tune of N6,796,278.38 from the credit facility granted to the claimant by the defendant. Lastly, that the claimant did not pay for the UBESOT shares. The defendant then formulated three issues for the determination of the Court, namely – 1. Whether the appointment of the claimant can be terminated after he has been dismissed. 2. If answer to issue 1 is in the negative, whether the claimant is entitled to the reliefs sought in his action before this Court. 3. Whether the claimant is entitled to claim interest on his alleged outstanding salaries, gratuity and pension. On issue 1, the defendant submitted that the law recognizes that a contract of employment can be determined in 4 (four) different ways, to wit: by dismissal, termination, resignation and retirement. Therefore, parties to a contract of employment may as appropriate exercise their right to determine the contract through any of the above-stated methods. That dismissal, termination and retirement from employment are methods available to an employer to severe the master/servant relationship between the employer and an employee. On the other hand, an employee can bring a contract of employment to an end by way of resignation or retirement. That in Dudusola v. Nigeria Gas Company Ltd [2013] 10 NWLR (Pt. 1363) 423 at 436 B – C, Akaahs, JSC held that “...in such a case, the respondent who is the master has an unfettered right to terminate or even dismiss the appellant who is the servant”. The defendant went on that there is no doubt that the defendant in this case has taken an option of dismissal to determine the employment of the claimant when it dismissed the claimant on 5th October 2009 for gross misconduct. That an employer has a right to dismiss the employee found guilty of an act of gross misconduct, referring to the case of Ajayi v. Texaco (Nig.) Ltd [1987] 3 NWLR (Pt. 62) 577, which is what the defendant did in the instant case vide a letter dated 5th October 2009. That the dismissal signals the end of the contractual relationship between the parties. Hence, the action of the defendant purportedly converting the dismissal to termination is futile as there was nothing to convert. That the defendant cannot lawfully convert the claimant’s dismissal to termination. The defendant referred the Court to Mr. A. S. Jombo v. Petroleum Equalisation Fund (Management Board) [2005] 14 NWLR (Pt. 945) 443 at 461 C – D, where it was an employer who terminated the employment of an employee cannot turn round to dismiss the same employee as the employment had ceased to exist. Also referred to the Court is Mr. Emiko Eyesan v. NNPC [2012] LPELR – 19667 (CA) and Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 287) 512. The defendant continued that having dismissed the claimant from the employment of the defendant, the contract between the claimant and the defendant has become dead and none of the parties can on its own revive the contract of service which was already dead. That the defendant’s act of making further pronouncement on the employment of the claimant which was already dead, to wit, terminating his appointment when indeed there was no employment at that relevant time is not known to law and the defendant cannot legally do so as the defendant cannot place something on nothing, referring to Macfoy v. UAC [1962] AC 152. That the claimant was not re-engaged by the defendant and he did not attend work from the day he was dismissed till the day his dismissal was purportedly converted to termination and there is no doubt that the position of the claimant in the defendant bank had been taken up by another person since his dismissal. The defendant went on that the purported conversion of the claimant’s dismissal to termination by the defendant was just an act of compassion to enable the claimant get his terminal entitlement. The conversion in law has no binding effect as it is futile to purport to convert a contract that was no longer in existence. That the conversion was not intended to create a legal relationship and does not create a legal relationship. This is why the defendant stated in paragraph 4 of its statement of defence that the claimant’s dismissal was graciously reviewed by the defendant to termination of appointment after appeals by the claimant to the defendant. The defendant reiterated that the purported conversion of the claimant’s dismissal to termination of his appointment was just for the claimant to be entitled to some benefits considering his length of years, having worked for almost 19 years with the defendant. That the said conversion of the claimant’s dismissal to termination after he had ceased to be a staff of the defendant was just an act of magnanimity, a privilege and not a right. That the claimant cannot premise any claim on the said conversion to termination. The proper thing is for the claimant to change his dismissal. To the defendant then, the contract of service between the claimant and the defendant was determined on the 5th of October 2009 when the claimant was dismissed. Since the dismissal has not been declared a nullity, the contract of service of the claimant cannot be revived by a letter converting his dismissal to termination. The defendant urged the Court to hold issue 1 in the negative. Regarding issue 2 i.e. if the answer to issue 1 is in the negative, whether the claimant is entitled to the reliefs sought, the defendant chose to address the reliefs sought by the claimant seriatim. The defendant took up reliefs (a) and (e) first; under which the claimant seeks the payment of his salary plus interest for the period 5th October 2009 to 21st December 2010, the period covered by the conversion of the claimant’s dismissal to termination. To the defendant, based on the letter dated 3rd November 2008 put in evidence at trial by the claimant, the claimant’s salary per annum is the sum of N943,750.00. Therefore, that how the claimant arrived at the sum of N4,433,196.82 as his salary for the period being claimed remained unknown. That a claim for salary is a claim for special damages, particulars of which the law requires must be specifically pleaded and strictly proved, citing Nitel v. Oshodin [1999] 8 NWLR (Pt. 616) 528 and Ngilari v. Mothercat Ltd [1993] 3 NWLR (Pt. 636) 626 SC. The defendant continued that failure of the claimant to particularize his claim for salary is fatal to his claim because both the Court and the defendant are unable to know how the claimant arrived at the said sum of N4,433,196.82 as his salary for the period being claimed. Whether the salary claimed by the claimant is based on “total gross pay” stated in the aforesaid letter of 3rd November 2008 is also unknown. For instance, that whether the defendant’s contribution to the claimant’s pension fund in the sum of N155,719.00, which the defendant is to contribute is included in the amount claimed as salary by the claimant is unknown. To the defendant, the Court is not even allowed to make calculation or estimation of such loss, citing Nzeribe v. Dave Eng. Co. Ltd [1994] 8 NWLR (Pt. 367)124. In consequence, the defendant submitted that the claimant’s claim for salary must necessarily fail because the claim fails to meet the requirement of the law. Considering the argument canvassed in issue 1 above, it is the defendant’s submission that the claimant is not entitled to reliefs (a) and (e). That it is clear that what the claimant is seeking under these reliefs is the payment of his salary in arrears from 5th October 2009 when he was dismissed till 21st December 2010 when the dismissal was purportedly converted to termination. That the defendant graciously approved that the claimant be paid terminal benefits, which include gratuity and pension. However, that the defendant did not state that the claimant would be entitled to pension if he attains the age of 45 years. To the defendant, although, the Union Bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust Deed provided that pension of staff shall be deferred till they are 45 years, the applicable law governing the issue of pension in Nigeria now is the Pension Reform Act 2004. Since the invention of this law, all other rules or statutes regulating pension were abolished; only licensed Pension Funds Administrators can manage pension funds and the defendant is not a licensed Administrator or Custodian, referring to section 44 of the Pension Reform Act 2004. That by section 3 of the Pension Reform Act 2004, an employee/beneficiary can only have access to the pension funds in the retirement savings account when he/she attains the age of 50 years. The testimony of the claimant was that he was born on 25th July 1965 and as such he will only be 50 years on 25th July 2015. Hence, the claimant can only be entitled to pension from July 2015, if at all he is entitled to pension. The defendant went on that there is no gainsaying that the Pension Reform Act 2004 has abrogated all other statute concerning pension thus the Union Bank of Nigeria Plc Staff Pension Variation of Trust Deed, which indicates that disengaged employees will start receiving pension at the age of 45 years, is no longer applicable. That it is clear from the evidence before this Court that the fact that the Pension Reforms Act 2004 has abrogated the Trust Deed and that a beneficiary can only be entitled to monthly pension at the age of 50 years was not controverted by the claimant. The defendant then urged the Court to hold that if at all the claimant is entitled pension having been considered by the defendant, he can only be entitled to same by July 2015 when he will attain the age of 50 years. Also, that the claimant stated in paragraph 14 of his statement of claim that his pension is to be calculated at the rate of 44% to give a total amount of N1,018,655.00 as his pension per annum and has on that basis arrived at the sum of N84,887.91 as his monthly pension. It is the defendant’s submission that since the claimant has not pleaded any document issued by the defendant on which the purported calculation can be founded, he cannot be entitled to the sum of N84, 887.91 as monthly pension, when he becomes due, urging the Court to so hold. Next, the defendant argued reliefs (c) and (j) under which the claimant claimed for his share certificate. To the defendant, the claimant was one of the several beneficiaries of Union Bank Employee Share Ownership Trust Scheme (UBESOT) as the scheme was set up for all members of staff of the defendant. The Trust Scheme was established in conformity with the then applicable law and for the members of staff who were in the employment of the bank. That by Article 3.05 of the UBESOT Trust Deed, the trust shares of the Union Bank Employee Share Ownership Trust Scheme (UBESOT) are vested in the name of the Registered Trustees/Manager of the Trustees of the Scheme. It is the defendant’s submission that the shares so allotted to the claimant or any employee are held in trust for them; therefore, share certificate cannot be issued to them as they are not entitled to same. Also, that by Article 4.03 of the Union Bank Employee Share Ownership Trust Scheme (UBESOT) Trust deed any employee who ceases to be an employee of the defendant either by death or any form of severance ceases to be a beneficiary of the UBESOT Trust Scheme. However, that the claimant ceased to be a beneficiary of the UBESOT Trust Scheme on 5th October 2009 when he was dismissed by the defendant. The defendant continued that it is clear from the evidence of the claimant that he did not pay any money at all for the trust shares, referring to the statement of the claimant during cross-examination that “1 did not pay for any shares but they were allocated to us”. The defendant then submitted that the claimant is not entitled to be issued any share certificate in respect thereof, urging the Court to so hold. The defendant continued that from the documents tendered by parties in their case, it is clear that the said 43,189 units of shares are Trust Shares under a trust scheme known as Union Bank of Nigeria Plc Employees Share Ownership Trust Scheme (UBESOT). That the apportioning of the Trust Shares to qualified staff of the defendant is based on status of the staff and for administrative purpose only i.e. for purpose of determining the dividend payable to staff under the scheme. That the Trust Scheme is administered by Trustees and Managers who hold the shares in trust for the benefit of the employees of the defendant. That the trust shares were not bought by the claimant. The claimant did not pay a kobo for the shares and ownership of the shares was never vested in the claimant. Furthermore, that the Trust Scheme is governed by Trust Deed which has been put in evidence before the Court by the defendant. The Trust Deed is the only document frontloaded by the defendant. It is attached to the defendant’s statement of defence dated 16/3/2012. The defendant then referred the Court to clauses 3.02, 3.03, 4.01, 4.02 and 4.03 of the said Trust Deed. To the defendant, the provisions of clauses 3.02 and 3.03 are explicit as to the fact that the shares are to be registered in the name of the Managers of the Trust, who are to hold the shares in trust for the benefit of the employees of the defendant. That the claimant never furnished any consideration for the Trust Shares and the shares were never registered in his name. That clause 4.02 is about apportionment of Trust Shares to staff of the defendant who are the beneficiaries. As aforesaid, that the apportioning did not and was not intended to transfer ownership of the Trust Shares to the staff, which includes the claimant. The apportioning is for administrative purpose, done based on status and it determines the dividend to be paid to each staff. The defendant went on that it is also pertinent to state that the defendant as bank is not permitted under Nigerian law to work as or carry on business as Registrar of Company. That the claimant did not allege that his share certificate is in the custody of the defendant. That share certificates are issued by companies known as Registrars of Company. To the defendant, the claimant’s relief for an order compelling the defendant to release his share certificate is misconceived, as it will be improper for the Court to grant such a relief because it will be impossible of performance. That the defendant will not be able to carry out the order for the reason that share certificates are issued and released by a Registrar of Company and Nigerian law does not allow the defendant (a bank) to act as a Registrar of Company. Furthermore, the scheme is a trust. The defendant as disclosed by the trust deed is not charged with the management and administration of the scheme. Any claim that border on the scheme can only properly be brought against the trustees of the scheme and not the defendant, urging the Court to refused this claim. Reliefs (d) and (k) relates to interest charged on a loan the claimant took. The claimant wants this stopped until the defendant starts paying him his monthly pension. To the defendant, the defendant is a financial institution duly licensed by Central Bank of Nigeria (CBN) to carry on business of banking in Nigeria. The defendant is into money business and does business with fund deposited with it by depositors. By the policy guideline of the regulatory bodies i.e. CBN and NDIC, the defendant is not permitted to grant interest free loan and is required to charge interest on all loans granted by it to meet the cost associated with the fund as the defendant is equally required to pay interest on funds deposited with it by depositors. All credit facilities granted by the defendant are disclosed to and monitored by the regulatory bodies. Therefore, all credit facilities granted by the defendant whether to a customer or a staff carry interest factor albeit that of staff is marginal to cover administrative cost. That, as disclosed by the claimant’s pleadings, there was an agreement between parties for the interest to be charged on the loan. The loan remains outstanding and unpaid till date and there are costs attached to the outstanding fund/loan in the hand of the claimant. That the issue of staff loan has absolutely nothing to do with payment of pension. They are two unrelated issues. Interest is charged on loan until it is liquidated. Furthermore, since the grant of the loan interest has always been charged on it and this was never controverted by the claimant. That the claimant has not liquidated his indebtedness to the bank and as such interest will continue to accrue on the loan. That interest on a loan cannot be challenged where it has been expressly stated and agreed by the parties unless there is excess charge on the interest and the claimant has not alleged excess charge of interest by the defendant. It is, therefore, the defendant’s submission that interest so charged on the loan facility is legal and in accordance with policy of the bank, urging the Court to so hold. Relief (f) seeks for the payment of gratuity and interest on the gratuity from 21st December 2010 till judgment is delivered and the sum fully liquidated. To the defendant, it gratuitously paid the correct gratuity to the claimant which he would ordinarily be entitled to had his appointment been terminated. That the claimant stated in paragraph 24 of his statement of claim that his outstanding gratuity is N231,512.50 which is contrary to the sum of N123,512.50 he claimed in his relief. The defendant continued that in paragraphs 10 and 11 of the statement of claim, the claimant stated that the gratuity of employees that have spent 20 years in service is calculated by 225 % of their basic salary and some other allowances and on that basis his gratuity is in the sum of N5,209,031.25. That the claimant did not show to the Court any document he relied upon to indicate how he came to the conclusion that such gratuity is calculated by 225%. It is the case of the defendant that the claimant did not spend up to 19 years in service as he joined the defendant on the 29th of October 1990 and was dismissed on 5th October, 2009. Also the date the claimant joined the service of the defendant and the date he was dismissed remains uncontroverted by him. The defendant then submitted that the claimant is not in a position to state the percentage that should be used in computing his gratuity, urging the Court to so hold. Relief (h) is a claim for long service award as well as interest on the sum till judgment is delivered and the sum fully liquidated. The defendant referred the Court to a letter dated 4th July 2007 exhibited by the claimant and submitted that the long service award is a privilege and not a vested right. That it was not stated in the claimant’s contract of employment that he will be entitled to long service award. The award is, therefore, at the discretion of the management. The defendant then affirmed its position that the claimant did not even spend up to 19 years in the employment of the defendant before he was dismissed. The defendant went on that there is no doubt that long service award is a compensatory measure put in place to reward years of meritorious service of employees who have served for a certain period of time. Such employees would have been qualified for it and would have merited it before such award is given to them. It is the defendant’s submission that the claimant was not qualified for the long service award in the category of an employee that has put in 20 years of service with the defendant because he did not spend 20 years in the service of the defendant; neither did he merit it as his service was tainted with misconduct having been dismissed. The last paragraph of the defendant’s letter dated July 4, 2007 relied upon by the claimant for his claim for long service award is to the effect that a dismissed or terminated staff is not entitled to the award. Relief (i) is a claim for location allowance and interest on it till judgment is delivered and the sum fully liquidated. The defendant referred to the letter dated 3rd November 2008 relied upon by the claimant in this suit with subject matter NEW COMPENSATION PACKAGE – OFFICER 1. Paragraph (e) of this letter under the subtopic “other benefits are as follows”, provides this – (e) Location Allowance 5% of Housing Allowance payable at the end of the year for staff working in the following cities: Lagos. Abuja. Port Harcourt. Warri. To the defendant, it is crystal clear that not just any staff of the defendant is entitled to location allowance; only those who work within certain environment will be entitled to the allowance. That the onus is on the claimant to state where exactly he worked between the 5th October 2009 and 21st December 2010 which will qualify him for location allowance. The defendant then submitted that the claimant did not work at all during this period and as such is not entitled to any location allowance, urging the Court to so hold. Relief (l) is for a letter from the defendant showing that it has remitted the claimant’s pension contribution to the claimant’s pension manager. To the defendant, it is apparent that the claimant acknowledged the fact that statute regulating the issue of pension now is the Pension Reform Act 2004 and has indicated his compliance to the extent of electing a pension management i.e. Premium Nig. Ltd as provided by the Act. That the defendant has remitted the claimant’s fund to his manager as it did for all its other employees. The question is whether the claimant is entitled to the pension funds now having not attained the age of 50 years. That the guiding principle of receiving pension funds is that after the contributory funds have been remitted to the respective pension managers of the employees, each employee is given personal identification number (PIN) which will give him/her access to the account from which he/ she will start drawing at the attainment of the age of 50 years. It is the defendant’s position that the claimant has a duty to approach his pension manager and obtain his PIN which will give him access to the account from which he will start drawing when attains the age of 50 years. That the defendant cannot be compelled to issue letter of confirmation of remittance of pension funds to the claimant as it is not under any obligation to such to any of its staff. The defendant then submitted that the claimant cannot access his pension funds because he has not attained the age of 50 years and cannot use the Court to compel the impossible by writing letter to the claimant, urging the Court to so hold. On issue 3 i.e. whether the claimant is entitled to claim interest on his alleged outstanding salaries, gratuity and pension as per reliefs (e), (f) and (g). To the defendant, it is pertinent to state that there is a difference between a claim for pre-judgment interest and award of interest on a judgment sum or debt, referring to Berliet (Nig.) Ltd v. Kachalla [1995] 9 NWLR (Pt. 420) – the page is not supplied. That in law, interest may be claimed and awarded in a case in two circumstances, which are: where it is claimed as of right; and where there is a power conferred by statute to do so in exercise of the Court’s discretion. The defendant cited Ekwunife v. Wayne West Africa Ltd [1989] 5 NWLR (Pt. 122) 422 at 455 where it was stated that “where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it in the writ and plead facts which show such an entitlement in the statement of claim”. That the claimant failed to meet with the requirements of the law by their failure to plead facts which entitle himto claim interest on the alleged outstanding gratuity. The defendant continued that interest may be claimed as of right where it is contemplated by agreement between the parties or under mercantile custom or under a principle of equity, such as breach of fiduciary relationship. However, where the claim for interest is under a statute, it is not necessary and required of the beneficiary of the statutory provision to state in the endorsement of his claim on the writ or to plead in his statement of claim the fact or the grounds of his entitlement thereto. That for a party to be awarded interest not provided for by the statute there must be evidence of the right to that sum on record, referring to Himma Merchants Ltd v. Aliyu [1994] 5 NWLR (Pt. 347) – again the page is not supplied; and A.G. Ferrero & Co. Ltd v. Henkel Chemicals (Nig.) Ltd [2011] l3 NWLR (Pt. 1265) 592. That the claimant did not plead the basis of his claim for interest (whether it is by agreement between the parties or by mercantile custom relevant to the transaction between the parties) or lead any evidence at trial on facts thereon as there was no trial, referring to A.G. Ferrero & Co. Ltd v. Henkel Chemicals (Nig.) Ltd, Himma Merchants Ltd v. Alhaji Inuwa Aliyu [l994] 6 SCNJ (Pt. I) 87, Union Bank of Nigeria Ltd v. Prof. A. O. Ozigi [1994] 3 SCNJ 42 and Irene Thomas v. Timothy D. Olufosoye [1986] 1 NWLR (Pt. 18) 669. The defendant, therefore, submitted and urged the Court to hold that the claimant, having failed to plead and lead evidence on facts which entitle him to claim interest on their alleged outstanding gratuity and long service award, is not entitled to the award of interest. In conclusion, the defendant urged the Court to hold that – a) The claimant was dismissed by the defendant on 5th October 2009. b) The defendant cannot revive a dead contract. c) The defendant only decided to pay the claimant his benefits on compassionate ground. d) The claimant is not entitled to any outstanding salaries between 5th October 2009 and 21st December 2010. e) The claimant can only be entitled to pension when he attains the age of 50 years in 2015 in accordance with the Pension Reform Act 2004. f) The claimant is not entitled to any interest whatsoever. g) The claimant’s claim is dismissed with substantial cost. The claimant framed only one question for the determination of the Court, namely, whether the he is entitled to the reliefs sought. The claimant indicated that the reliefs he seeks are – 1. Outstanding gratuity in the sum of N231,512.50 (Two Hundred and Thirty-One Thousand, Five Hundred and Twelve Naira, Fifty kobo). 2. Outstanding salaries/allowance for fourteen (14) months at N4,433,196.82 (Four Million Four Hundred and Thirty-Three Thousand, One Hundred and Ninety-Six Naira, Eighty-Two kobo). 3. Outstanding location allowance for fourteen (14) months at N44,041.66 (Forty-Four Thousand, Forty-One Naira, Sixty-Six kobo). 4. Long service award at N412, 525.00 (Four Hundred and Twelve Thousand, Five Hundred and Twenty-Five Naira). 5. Monthly pension from 21st December 2010 at N84,887.91 (Eighty-Four Thousand, Eight Hundred and Eighty-Seven Naira, Ninety One kobo. 6. Shares certificate being withheld by the bank. 7. Reversion of interest that accrued to the claimant’s loan account and revert all other deductions in the said account from 27th May 2011 when the claimant’s purported gratuity was paid till the defendant starts paying the claimant his monthly pension. The claimant then argued his claims under their respective heads. Regarding salaries, this is covered under reliefs (a) and (e). To the claimant, according to his document headed “New Compensation package” dated 20th April 2009, the claimant’s Basic Salary excluding allowances is N962,625.00 (Nine Hundred and Sixty-Two Thousand, Six Hundred and Twenty-Five Naira) per annum. The claimant’s payslip, which is also an exhibit before this Court titled “pay slips at 23rd April 2009” shows that the claimant’s monthly salary was a total sum of N316,156.24 (Three Hundred and Sixteen Thousand, One Hundred and Fifty-Six Naira, Twenty-Four kobo) when all allowances are included. That he stated that the defendant did not pay his salaries and allowances for a period spanning from 5th of October 2009 to the 21st of December 2010 (14 months), which averment was not denied nor controverted by the defendant. Rather the defendant in paragraph 15 of the statement of defence stated that the defendant only pays active members of staff and the claimant was not one, properly so called at that period. The claimant the submitted that he was still a staff for the period between 5th October 2009 to 21st December 2010 and the defendant is obligated to pay him his monthly emolument for the period, which duty the defendant has failed to fulfil. To the claimant, a cursory look at the letter titled “Review of Disciplinary sanction/outcome of Appeal” dated 21st December 2010 will reveal that the intention of the author of the letter was clear when he stated that the termination will take effect from the 21st December 2010 and not the date of the purported dismissal letter. That it is trite that when the context of a document is clear and unequivocal, it should be given its ordinary meaning. If the author of the letter’s intention was for the claimant not to be entitled to his salary for the period between the dismissal and the termination, he could have made it clear in the said letter by giving the letter a retrospective effective date but it unequivocally stated that the effective date of the termination shall be 21st December 2010. It is the claimant’s submission that the state of the claimant between 5th October 2009 and 21st December 2010 could at best be an employee on suspension. And it is trite that except otherwise stated, an employee on suspension is entitled to his full salary, urging the Court to so hold. The claimant continued that section 15 of the Labour Act 2004 provides that – Wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon. Furthermore, that it has been suggested that suspension is actively dismissal with a possibility of reemployment or reinstatement, if the parties so desire, citing Marshall v. Electric Co. Ltd [1945] 1 All ER 653 where Lord Goddaro held as follows – In my opinion what is called suspension is in truth dismissal with an intimation that at the end of so many days, or it may be hours, the man will be reemployed if he chooses to apply for re-instatement…. Also that Udemeh v. Nigeria Coral Corporate [1991] 3 NWLR (Pt. 180) – the page is not supplied – held that the suspension which lasted for three months was invalid and the appellant was entitled to three months salary as damages. In that case the respondent suspended the appellant without pay and three months later, while still on suspension, the respondent terminated the appellant with retrospective effect. The claim for outstanding gratuity is covered by relief (f), which is for an order for the sum of N231,512.50 as outstanding gratuity and interest on the said sum judgment. That article 8 of the Procedural and Main Collective Agreement between NEABIAI and ASSBIFI states that – Pension and Gratuity Scheme shall be negotiated at company level between the domestic unit of the union and individual member company of the Association based on the concept of Total emolument. Clause 20 of the Union Bank of Nigeria Plc Staff Pension Fund (deed of variation of trust deed) provides that – As from the day of January, 1994, the pension and gratuity scheme shall be based on the total emolument of those classes of employees of bank as are qualified under the existing rules regulating the payment of pensions and gratuity and shall include basic salary, lunch subsidy and housing and transport allowances. Clause 18 of the Union Bank of Nigeria Plc Staff Pension Fund (deed of variation of trust deed) under the scale of benefits states that – The scale of amount receivable by a member of the scheme shall be based on appropriate percentage of his/her annual terminal total emolument as set out in the attached schedule. To the claimant, page 17 of the deed of variation of trust deed which contains the referred schedule provides that for 20 years of service which applies to the claimant, the appropriate percentage is 225, which must be computed with the claimant’s total emolument. That the defendant had failed in computing the claimant’s gratuity with respect to his new compensation package – officer 1 dated 20 April 2009; rather it used the claimant’s previous compensation package dated 3rd November 2008 to compute his gratuity. The claimant went on that his gratuity was computed as follows – Basic Salary - N962,625.00 Transport allowance - N377,500.00 Housing allowance - N755,000.00 Lunch allowance - N220,000.00 N2,315,125.00 When the total amount (N2,315,125.00) is multiplied by 225%, which is in accordance with the deed of variation scheme, the total amount will come to N5,209,031.25. However, that the bank paid in only N4,977,518.72. If 4,977,518.72 is subtracted from 5,209,031.25, what we have will be N231,512.50. That the amount omitted by the bank is the sum of N231,512.50 (Two Hundred and Thirty-One Thousand, Five Hundred and Twelve Naira, Fifty kobo). That the document attached to the claimant’s reply to statement of defence, the claimant’s statement of account shows that the new compensation package had been effected and the claimant had received salary under that new compensation packaged dated 20th April 2009. This, however, was also never denied by the defendant nor is it in dispute. That it is trite that fact not denied is deemed admitted, citing AG, Anambra State v. AG, Federation [2005] 9 NWLR (Pt. 931) 572 SC 011 D – E. Relief (b) is for a declaration that the clamant is entitled to his monthly pension with effect from 21st December 2010. The claimant cited the Union Bank of Nigeria Plc Staff Pension Deed (pages 12 – 13) para 9, which states that – a) After attaining the age of 45 years, a member may retire voluntarily after giving the Bank twelve calendar months’ notice of intention to retire in which case the member is entitled to receive immediate pension on retirement according to the scale shown in the attached schedule. b) Deferred Pension If a member withdraws his/her services before attaining the normal retirement age, he/she will be entitled to receive pension as shown in the attached schedule when the member attained the age of 45 years. To the claimant, this policy is the contract between the employer and the employee. That if the statute provides for term of contractual relationship, parties can alter such term of relationship created by statute by their agreement. That a company policy is a document that embodies the rules, relationships and regulations between the employer and the employee, hence the defendant cannot deviate from the provision of the contract entered into between the parties. That it is trite that parties are bound by the terms and four walls of their contract, citing JFS Inv. Ltd v. Brawal Line Ltd [2010] 18 NWLR (Pt. 1225) 495 at 531 B – C. The claimant then referred to section 3(1) and (2)(a), (b) and (c) of the Pension Reform Act 2004. That the law under the Pension Reform Act is that no person or employee shall be entitled to make any withdrawal from his retirement saving account before attaining the age of 50 years. However, an employee is entitled to make withdrawals before attaining the age of 50 years if (a) an employee is retired on the advice of a suitably qualified physical or a properly constituted medical board certifying the employee is no longer mentally or physically capable of carrying out the functions of his office, (b) an employee is retired due to permanent disability either of mind or body, or (c) an employee retires before the age of 50 years in accordance with the years and conditions of his contract of employment. Furthermore, that the defendant in paragraph 23 of the statement of defence did not deny the fact that the claimant had attained the age of 45 years when his employment was terminated; rather they intend to repudiate from the initial agreement and state that pension will be payable when the claimant attains the age of 50 years. That they all seem to rely on the provision of Pension Reform Act 2004. That by section 36(8) of the Constitution, it is a general principle of law in Nigeria that law does not take retroactive effect, hence the defendant is barred from relying on the provision of the Pension Reform Act 2004 that was not in existence when the contract was entered into between the claimant and the defendant. To the claimant, the opt-stated principle is that in respect of contracts of employment not having a statutory flavour, the parties are strictly governed by the terms of the contract of employment embodied in whatever document e.g. the company’s condition of service as the case may be, referring to Olaniyan & ors v. University of Lagos [1985] 2 NWLR (Pt. 9) 599. That it is not in dispute that the claimant’s employment pension is governed by the Union Bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust Deed, and the age of being qualified for pension is provided as 45 years. That the defendant in his final written address particularly paragraph 5.10 has also admitted that the Union bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust provides that pension be deferred till they are 45 years of age and never denied the fact that the claimant was aged 45 at the time of his termination of employment. Relied (c) and (j) seek the order of the Court compelling the defendant to release to the claimant his gratuitous share certificate. To the claimant, in a letter dated 25th January 2007 and headed “Distribution of shares of Union Bank of Nigeria Plc Employees Share Ownership Trust (UBESOT) SCHEME”, the defendant stated the criteria for the distribution of the gratuitous shares as seniority, length of service and equality; and that its reason for bestowing such shares on the claimant was because he had served the defendant as a staff for up to 10 years as at 31st March 2005. That the Black’s Law Dictionary, 8th edition, at page 721 defines gratuitous as anything “done or performed without obligation to do so; given without consideration in circumstances that do not otherwise impose a duty”. That the shares allotted to the claimant are his entitlement and deemed to be a bonus earned which is held in trust or possession of the bank. The claimant then referred to Central London Property Trust Ltd v. High Trees House Ltd (1877) 2 App. Cas. 439, where Lord Denning, MR stated that – ...if one party by his conduct tends another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should act on that belief, and does act on it, the first party will not be allowed to insist on the strict legal right where it would be inequitable for him to do so. The claimant went on that the shares allotted to him were believed to be a reward from the defendant for services rendered. That the claimant was by no means informed that he was to pay certain consideration for the activation of the shares. That the defendant’s witness, Mr. Joseph Ejembi, never denied the fact that the claimant was allotted shares. That the defendant further admitted in paragraph 7 of the statement of defence that the claimant was one of the beneficiaries of Union Bank Employee Share Ownership Trust (UBESOT) Scheme. The claimant referred to article (vi) of the Union Bank of Nigeria Plc Employees Share Ownership Trust (UBESOT) SCHEME trust deed, which provides that “the Bank is desirous of instituting a profit sharing scheme for the benefit of its employees, hereinafter called the Union Bank of Nigeria Plc Employee Share Ownership Trust Scheme to be applied by the Managers in the manner hereinafter appearing”. That article 3.03 of the Union Bank of Nigeria Plc Employees Share Ownership Trust (UBESOT) SCHEME trust deed further states that the Manager shall hold the trust share upon trust for the benefit of all bona fide full-true confirmed employee of the bank. It is the claimant’s submission that neither the dividends since the allotment of shares on 25th January 2007 till date have accrued to the claimant nor has the share certificate been given to him. That it is clear from the evidence before this Court that the defendant’s intention is to deprive the claimant not only of his shares but also his dividends as articles 3.05 and 4.03 relied upon by the defendant and being the only exhibit tendered by them are not contained in the list of exhibit dated 16th March 2012 and attached to the defendant statement of defence. On the issue of loan, interest and deduction, the claimant contended that he gave evidence to the effect that the practice of the defendant is that when loan is given to an employee and the employee’s employment is later terminated before the final liquidation of the loan, the defendant deducts half of the terminal benefit to liquidate the loan and subsequently deducts a percentage from the monthly pension of the ex-employee and before the commencement of the pension, the interest stops accruing which will later continue when the ex-employee starts receiving his pension. That this piece of evidence was not contradicted in any way; as such the claimant urged the Court to take it as the true position of things and reverse the interest that has accrued from when the part-gratuity was paid till judgment is given in the case and also hold that interest will only continue running when the claimant starts receiving his pension. Te claimant referred to AG, Anambra State v. AG, Federation (supra). The claimant concluded by urging the Court to grant the prayers he seeks in this suit. I heard learned counsel and considered the processes filed in this matter. The key issue for the determination of the Court (the sole issue framed by the claimant) is whether the claimant is entitled to the reliefs he seeks. To be able to resolve this issue, issue 1 framed by the defendant i.e. “whether the appointment of the claimant can be terminated after he has been dismissed” would need to be resolved. Reliefs (a), (b), (e), (f), (g), (h) and (i) all seek reliefs the determination of which depends on when it can be said that the claimant was either dismissed or terminated. To be able to, therefore, determine whether the claimant is entitled to the reliefs he seeks, it is useful to determine how and when the claimant ceased to be an employee of the defendant. By Exhibit A, the claimant was offered employment by the defendant as a Messenger. He resumed work on 29th October 1990. By Exhibit B dated 5th October 2009, the claimant was dismissed with effect from 5th October 2009. This dismissal was later reviewed and by Exhibit C dated 21st December 2010, the dismissal was converted to termination with effect from 21st December 2010. The argument of the defendant here is that when the claimant was dismissed from his employment with the defendant, there was no employment relationship to be converted to termination. In essence, that Exhibit C beyond gratuitously and merely entitling the claimant to terminal benefits is of no consequence regarding the character and manner in which the claimant ceased to be an employee of the defendant. The question here is whether the defendant is right in its argument. Like I indicated, the defendant had argued that the employment of the claimant could not have been terminated after he had been dismissed. That the purported conversion of the claimant’s dismissal to termination by the defendant was just an act of compassion to enable the claimant get his terminal entitlement. The facts giving rise to this issue are traceable to Exhibits B and C. By Exhibit B dated 5th October 2009 and titled, “Dismissal”, the claimant was “advised of [his] Dismissal from the Bank’s service with effect from 5th October 2009 for gross misconduct”. Exhibit C dated 21st December 2010 and titled, “Review of Disciplinary Sanction/Outcome of Appeal”, however, stated as follows – We advise that Management has considered your appeal against the sanction conveyed in our letter of 5th October 2009 and approved the conversion of your DISMISSAL for gross misconduct to TERMINATION of your appointment with effect from 21st December 2010 for services no longer needed. Your account has been credited with a month’s salary being payment in lieu of notice. Benefits due to you and from which outstanding liabilities are to be deducted will be credited to your account shortly. In support of its argument, the defendant had relied on Mr. Emiko Eyesan v. NNPC, among others, as authority for the proposition that having terminated an employment, an employer cannot turn round to dismiss the same employee on the rationale that thereby, the contract of employment had come to an end and so there is no basis for the dismissal. This may be true. Yet Mr. Emiko Eyesan v. NNPC acknowledged that an employer can gratuitously convert a termination to retirement. Where this happens, the question that arises is whether the employer should be allowed to resile from such a gratuitous act. I do not think so. The rule has always been that an employer has the discretion to give a lesser punishment to an employee, but it has no discretion to give a higher punishment than that prescribed. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487. In this context, Mr. Emiko Eyesan v. NNPC becomes understandable in holding that, having terminated an employment, an employer cannot turn round to dismiss the same employee. To permit this would mean that the employer had substituted a higher punishment for something lesser. Dismissal relative to termination is a higher punishment; and relative to retirement, termination harsher. Furthermore, an employer has the discretion to waive or condone misconduct. See Ekunda v. University of Ibadan [2000] 12 NWLR (Pt. 681) 220 CA where it was held that if after the knowledge of fraud committed by an employee the employer elects to retain him in his services, the employer cannot at any subsequent time dismiss him on account of that which he has waived or condoned. So in truth, Mr. Emiko Eyesan v. NNPC, in acknowledging that an employer may convert termination to retirement is simply applying the principle that an employer has the discretion to waive or condone misconduct, or give a lesser punishment to an employee. In the instant case, having, therefore, dismissed the claimant and then changing its mind by converting the dismissal to termination, as gratuitous as the act may be, the defendant cannot just resile from it. It was not shown to the Court that the defendant was under some kind of compulsion to convert the dismissal to termination. It did it of its own free volition. The argument of counsel to the defendant that the defendant cannot lawfully convert the claimant’s dismissal to termination, therefore, goes to no issue; and I so hold. Having held that the defendant can legally convert the claimant’s dismissal to termination, what remains is to determine whether the claimant has made a case for each of the reliefs he seeks. Reliefs (a) – (d) seek for declaratory reliefs, while reliefs (e) – (l) seek for specific orders. In relief (a), the claimant is praying for a declaration that he is entitled to his full salary for the period 5th October 2009 – 21st December 2010 given that Exhibit C converted his dismissal to termination with effect from 21st December 2010. If this declaration is given in favour of the claimant, then the claimant prayed for relief (e). In, therefore, making a case for reliefs (a) and (e), the claimant posited that the period 5th October 2009 – 21st December 2010 should be read as suspension thus entitling him to salary for the said period. No authority (whether in terms of case law or the conditions of service) was cited for this proposition. In further support of his position, the claimant cited section 15 of the Labour Act Cap. L1 LFN 2004, which provides that wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon, provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month. The problem with this argument of the claimant is that section 15 of the Labour Act deals with “periodicity of payment of wages”. It does not seek to grant a right to wages for any period that work was not done, whether or not the employment contract is expressed to exist. Secondly, by its design, the Labour Act lays down labour standards applicable to workers, a term defined under section 91 of the Labour Act as to exclude the claimant, who in terms of the evidence before the Court was employed as a Messenger (in which position he could claim the benefit of the Labour Act) but who (by his testimony under cross-examination) was promoted in 2008 to a senior staff of the defendant (in which position he could no longer draw the benefit of the Labour Act). The defendant on the other hand argued that the claimant remained out of work for the period in question and so it would be inequitable for him to claim salary for work not done. Under cross-examination, the claimant testified that from 5th October 2009 to 21st December 2010, he did not report to work. In any event, that a claim for salary is a claim for special damages which must be specifically pleaded and proved, all of which the claimant failed to do. In relief (e), the claimant is praying for an order compelling the defendant to pay the claimant the sum of N4,433,196.82. The argument of the defendant is that the claimant did not plead this sum or state how he came about this sum. On the issue of pleading, the claimant actually pleaded this sum in paragraph 16 of his amended statement of facts. In paragraph 16 of his sworn deposition, the claimant then deposed on oath that his outstanding salary and allowances from 5th October 2009 to 21st December 2010 is N4,433,196.82. Is the Court told how this sum was arrived at by the claimant? This remains the question. In paragraph 17 of his sworn deposition, the claimant also deposed that from 5th October 2009 to 21st December 2010 when his employment was terminated, he was not paid salary which was N316,656.19 and in words stated it to be “Three Hundred and Sixteen Thousand Six Hundred and Fifty Six Naira Fifty Kobo”. As can be seen there is a variation in the sum in figure and the sum in words. Then of course it is not disclosed to the Court whether the sums (in figure and words) are monthly or annual salary. And between the depositions in paragraphs 16 and 17 of his sworn deposition, which, as to the salary of the claimant, is the Court to prefer over the other? The claimant frontloaded and tendered Exhibits H and I as evidencing his remuneration package. Exhibit I is dated 3rd November 2008, while Exhibit H is dated April 20, 2009. Exhibit I has a Gross Total Pay of N3,775,000 as the Gross Annual compensation package of the claimant. The compensation package has sums allotted under these heads: basic pay, transportation, housing/rent, lunch, utility, tea, furniture, education, wardrobe, domestic staff, entertainment, passage, 13th month salary, leave pay and pension contribution. Exhibit I at the second page then has other benefits said to be: out of station allowance, transfer benefits, inconvenience allowance, business travel and location allowance. Exhibit H merely indicated an upward adjustment in the sums relating to basic salary, 13th month pay, leave pay and pension contribution. Now, conceptually and by law, pension contribution is not payable directly to an employee but to the pension fund or the employee’s chosen pension fund administrator. I did a calculation of all the sums relating to the claimant’s basic pay, transportation, housing/rent, lunch, utility, tea, furniture, education, wardrobe, domestic staff, entertainment, passage, 13th month salary, leave pay and pension contribution in terms of both Exhibits I and H; and what I got was N3,799,883 (i.e. including the pension contribution that by law should not be paid directly to an employee). If N3,799,883 is divided by 12 months, what we have is N316,656.916, which if then multiplied by the 14 months that the claimant said he is claiming for, what we have is N4,433,196.83 but what the claimant is actually claiming for is N4,433,196.82. Is the claimant entitled to this sum then? This remains the question. The claimant under cross-examination testified that from 5th October 2009 to 21st December 2010 (the period he seeks to be paid for) he did not report to work. He, however, urged the Court to deem this period of absence from work as one in which he was on suspension. He did not offer any authority for this proposition. Even if the Court were to deem this period as one in which the claimant was on suspension, the rule regarding suspension is that it could be with or without pay or at half pay, all depending on the terms and conditions of the contract of employment. The claimant has not shown which of these alternative consequences was provided for in his conditions of service. I, therefore, find it difficult to return a verdict in favour of the claimant regarding his claim for salary for 14 months i.e. from 5th October 2009 to 21st December 2010. The claimant has accordingly not succeeded in making a case for the grant of Reliefs (a) and (e). They cannot, therefore, be granted; and I so find and hold. Reliefs (b) and (g) relate to the claimant’s claim for monthly pension. Here, the claimant is claiming for N84,887.91 with effect from 21st December 2010. The argument of the claimant is that in virtue of paragraph 9 of the Union Bank of Nigeria Plc Staff Pension Deed (Exhibit E), he is entitled to draw on his pension having attained the pension age of 45 years. In answer, the defendant contended that the applicable law under which the claimant must claim his pension is the Pension Reform Act Cap. P4 LFN 2004, not the Union Bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust Deed (Exhibit E) because Exhibit E must be read to have been overtaken by the Pension Reform Act. In any case, that the defendant is not a licensed pension fund administrator and section 44 of the Pension Reform Act requires that “as from the commencement of this Act, pension funds shall only be managed by pension fund administrators licensed by the Commission under this Act”. In reaction, the claimant had argued in paragraph 4.19 of his written address that by section 36(8) of the Constitution, it is a general principle of law in Nigeria that law does not take retroactive effect, hence the defendant is barred from relying on the provision of the Pension Reform Act 2004 that was not in existence when the contract was entered into between the claimant and the defendant. Section 36(8) of the 1999 Constitution, as amended, provides that – No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. It can be seen from this provision that the rule against retrospectivity of law applies to penalties and the criminal law only. It does not extend to other forms of law as the claimant seems to think. The generalisation of the claimant in his submission in that regard is accordingly out of place; and I so hold. The question that, therefore, and presently arises is whether the claimant can claim pension under Exhibit E. First sections 3 and 4 of the Pension Reform Act provide that pension claims under the Act can only be by retirees who have attained the age of 50 years. Section 8, however, provides the exemption. The relevant portion of section 8 provides that – (1) Notwithstanding the provisions of subsection (2) of section 1 of this Act, any employee who at the commencement of this Act is entitled to retirement benefits under any pension scheme existing before the commencement of this Act but has three or less years to retire, shall be exempted from the scheme. (2).............................................................................. (3) Any person who falls within the provisions of subsections (1) and (2) of this section shall continue to derive retirement benefit under such existing pension scheme as provided for in the First Schedule to this Act. Section 12(1) of the Pensions Reform Act goes on to provide for the transfer of entitlement from defined benefits scheme into the new Scheme. Even here, it stipulates only for employees who have over three years to retire. Section 12(1)(b) is the relevant provision for present purposes. It provides that – (1) As from the commencement of this Act, the right to retirement benefits of any employee who is already under any pension scheme existing before the commencement of this Act and has over three years to retire shall – (a) ………………………………………………………………………. (b) in the case of the employees…in the private sector, credit the retirement savings accounts of the employees with any funds to which each employee is entitled and in the event of an insufficiency of funds to meet this liability the shortfall shall immediately become a debt of the relevant employer and be treated with the same priority as salaries owed; where there is such a debt the employer shall immediately issue a written acknowledgment of the debt to the relevant employee and take steps to meet the shortfall. The thing to note about section 8 of the Pension Reform Act is that it covers only employees still in service but who have three or less years to retire as at the commencement of the Pension Reform Act, which is 25th June 2004. See Mr. Joel Adewumi v. Bureau of Public Enterprises (BPE) & 2 ors unreported Suit No. NICN/IB/18/201 the judgment of which was delivered on December 16, 2013. While under section 12, for an employee (like the claimant in the instant case) who is already under any pension scheme existing before the commencement of the Pension Reform Act and has over three years to retire his retirement savings shall be credited to his account under the new scheme under the Pension Reform Act. Now, the Pension Reform Act 2004 came into effect on 25th June 2004. The provisions of sections 8 and 12 of the Pension Reform Act as to those who have three years to retire means that such coverage period would have expired at the end of June 2007. The copy of the Union Bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust Deed (Exhibit E) frontloaded by the claimant indicated it was made in 1996. This Court interpreted the same Deed of Variation of Trust Deed in Mr. Austin Odiakose Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NIC/LA/201/2011 the judgment of which was delivered on December 5, 2012. By Exhibit B, the claimant was dismissed with effect from 5th October 2009 although Exhibit C converted this to termination with effect from 21st December 2010. This means that the claimant did not qualify as an employee with less than three years to retire at the commencement of the Pension Reform Act in order to enjoy the exemption of section 8 of the Act. And in respect of section 12, at the commencement of the Pension Reform Act i.e. 25th June 2004, the claimant had more than three years to retirement and so his retirement savings under Exhibit E ought to have been credited to his account as provided under the new scheme by the Pension Reform Act. All of this means that the claimant as far as the instant case is concerned cannot claim under Exhibit E as he is presently doing. His claim must be under the Pension Reform Act, which requires that the claimant must have attained the age of 50 years. The claimant filed this action on 27th February 2012. By Exhibit C, the claimant’s dismissal was converted to termination with effect from 21st December 2010. In other words, the cause of action arose on 21st December 2010. The law for determining the substantive claim of a claimant is the law as at the time the cause of action arose. See Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465. Was the claimant 50 years old or less as at 21st December 2010? Exhibit K is the claimant’s declaration of age, but it does not indicate the date it sworn to; and so I cannot use it as evidence of the age of the claimant – see Oghahon v. Reg. Trustee CCGG [2001] FWLR (Pt. 80) 1496; [2002] NWLR (Pt. 749) 675, which held that an undated letter is invalid except proved by oral/parol evidence the date left out. In paragraph 22 of the amended statement of facts, the claimant pleaded that he was born on 25th July 1965. And in paragraph 22 of his sworn deposition, the claimant deposed to his date of birth being 25th July 1965. However, on 30th January 2013, under cross-examination, the claimant stated that he was 50 years old, and that he was born in 1965, 25th July 1965 to be specific. If the claimant was born on 25th July 1965 (and here, it needs to be noted that the defendant did not challenge the date of birth of the claimant), he could not have been 50 years old as at 30th January 2013. In not telling the truth under oath by stating that he was 50 years old when he knew he was not, the claimant was trying to mislead the Court into believing that he was 50 years old so as to come under the ambit of the Pension Reform Act for purposes of his claim for pension. In summary, what all of this adds up to is that Exhibit E cannot be relied upon by the claimant as the claimant’s savings under it ought to have been credited to the claimant’s account under the new scheme as provided by the Pension Reform Act; and the claimant was not 50 years old as at 21st December 2010 when this cause of action arose, and so he cannot draw from the Pension Reform Act as enjoined by sections 3 and 4 of the Act – and I so find and hold. In consequence, the claimant’s claim for monthly pension as per reliefs (b) and (g) is premature and so cannot be granted. In any event, it should be noted that the claimant is much aware that his claim for pension can only be under the Pension Reforms Act given that in relief (l), he is praying for an order compelling the defendant to issue to him a letter showing that the defendant has remitted his pension contribution to his pension manager, Premium Nig. Ltd. By relief (l), the claimant simply acknowledges that he is no longer regulated by the Union Bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust Deed (Exhibit E). Reliefs (c) and (j) relate to the claimant’s claim for share certificate. The argument of the claimant here is that for services rendered, the defendant gratuitously allotted to him shares, which he was not told he had to pay for. The defendant’s contention here is that the claimant did not pay for any shares to warrant him being give share certificate. In any event, that the claimant is a beneficiary of the Union Bank Employee Share Ownership Trust Scheme (UBESOT) set up for all staff of the defendant and vested in the name of the Registered Trustees/Manager of the Trustees of the Scheme. That under article 4.03 of the UBESOT Trust Deed, any employee who ceases to be an employee of the defendant either by death or any form of severance ceases to be a beneficiary of UBESOT. Exhibit F dated 25th January 2007 and titled “Distribution of Shares of Union Bank of Nigeria Plc Employees Share Ownership Trust (UBESOT) Scheme” is the letter through which the defendant approved the distribution of the total equity to all eligible staff using criteria such as staff who have served for up to 10 years in the Bank, seniority, length of service and equality. This distribution was contingent on filling and signing the acceptance form. The last paragraph of Exhibit F then stated as follows – The shares will be held in trust for the members of the scheme until severance from the service of the bank while the holders continue to enjoy the accruing benefits dividends/bonuses. The acceptance form signed by the claimant is attached to Exhibit F. In it, a beneficiary who accepts to take his/her full rights in addition to the nominal shares allotted are to complete Section B only, while those who opt for partial acceptance or renunciation of the additional shares are to complete Section C only. The claimant completed Section B of the form. Section C first has 3 columns. The first column indicates 43,189 for nominal shares; the second column indicates 4,339 for additional by rights at N20.00; and the third column indicates 86,780.00 as the total amount to be paid. Section C then goes on to provide where the claimant is to sign. Here, it is preceded by the term – I enclose my bank draft for N..............in favour of Union Trustees Nig. Ltd being the amount payable for the rights offer as shown above. The claimant signed but did not indicate any amount for the rights offer. In other words, the claimant did not pay for the rights offer. Under cross-examination, the claimant acknowledged that he did not pay for any share. So, the point is that if the claimant did not pay for any shares, he cannot lay claims to being entitled to be issued with any share certificate. In any case, Exhibit F itself stated that the shares will be held in trust for the members of the scheme until severance from the service of the bank while the holders continue to enjoy the accruing benefits dividends/bonuses. In other words, any staff who ceases to be an employee cannot benefit from the scheme. The claimant ceased to be an employee of the defendant and so can no longer benefit from the scheme; and if he can no longer benefit from the scheme, there can be no share certificate to ask for. Reliefs (c) and (j) fail and are accordingly dismissed. Reliefs (d) and (k) relate to the prayer of the claimant that interest charged on his loan account when his pension has not been paid should be declared null and void and reversed. The basis of the claimant’s argument here is that banking practice frowns upon such. To the defendant, it is a financial institution licensed to carry on the business of banking where charging of interest on loans advanced is an integral part of the business. The evidence of banking practice given solely through the evidence of the claimant and no one else is insufficient to found such a banking practice. The claimant made no attempt to call some other witness to authenticate his evidence of banking practice. Section 74 of the Evidence Act 2011 stipulates that when the Court has to form an opinion as to the usages and tenets of any body of men or family the opinions of persons having special means of knowledge on the matters are admissible. This section envisages opinions of persons other than the claimant. In the circumstance, I find and hold that the claimant has not proved his claim for reliefs (d) and (k). They are accordingly dismissed. Relief (f) is a claim for outstanding gratuity in the sum of N231,512.50. The sum originally claimed under relief (f) was N123,512.50. The claimant applied to amend this figure to N231,512.50, which application was granted by the Court on 27th February 2014 as reflected in paragraphs 25 and 31(f) of the amended statement of facts. Note that pleadings may be amended before final judgment (see Akoh v. Abuh [1992] 1 NWLR (Pt. 219) 551) and after the close of evidence so long as no new issues are raised and such amendment would only allow the parties to make use of the evidence already given (see Oguntimehi v. Kpeke Gubere [1964] 1 All NLR 176, Akinkumo v. Fatimoju [1965] NMLR 349 and NDIC v. Oranu [2001] FWLR (Pt. 82) 1974. So I do not understand the fuss made of the sum of N123,512.50 by the defendant in paragraph 5.47 of its written address. The claimant based his claim on the Union Bank of Nigeria Plc Staff Pension Fund Deed of Variation of Trust Deed (Exhibit E) and argued that the defendant did not calculate his gratuity on the basis of his new compensation package i.e. Exhibit H. The defendant had acknowledged paying the claimant N4,977,518.72 as his gratuity but that it was used to off-set his indebtedness to the Bank. The claimant’s argument is that if his gratuity was appropriately calculated based on the new compensation package it should come to N5,209,031.25, which if the N4,977,518.72 is subtracted from what we get is N231,512.53, not N231,512.50 as claimed by the claimant. See paragraph 11 of his sworn deposition and paragraph 4.14 of his written address. The defendant acknowledged and argued that when Exhibit C converted the dismissal of the claimant to one of termination, it was to enable the claimant claim his terminal benefits including his gratuity. Since Exhibit C is effective from 21st December 2010, it means that the claimant’s gratuity must be calculated up to 21st December 2010. In this sense, I agree with the claimant that he was short-paid in terms of his gratuity. Since the claimant is claiming the sum of N231,512.50 and not N231,512.53 (courts can only grant that which is claimed), he is accordingly entitled to paid by the defendant the said sum of N231,512.50 representing the shortfall in the payment of his gratuity; and I so find and hold. Relief (f) accordingly succeeds. Relief (h) is for an order compelling the defendant to pay to the claimant the sum of N412,525.00 being his long service award. The claimant did not address this relief in his written address although he listed it as one of the reliefs he seeks from the Court in paragraph 4.1 of his written address. Exhibit J dated July 4, 2007 and titled “Review of Long Service Award Scheme” was even frontloaded by the claimant as proof for his claim for long service award. In Magnusson v. Koko [1992] 9 NWLR (Pt. 317) 289, it was held that in moving an application or motion, the fact that the applicant is silent on one or more of the prayers or orders sought does not indicate that he is deemed to have abandoned the prayers he did not address the Court on. That an abandonment of such prayers can only take place if the applicant expressly withdraws such prayers. I cannot, therefore, deem relief (h) as abandoned simply because the claimant did not address it. To the defendant, the long service award is a privilege, a discretion of the management, not a vested right. By PAN v. Oje [1997] 11 NWLR (Pt. 530) 625 CA, ex-gratia is a term applied to anything accorded as a favour, as distinguished from that which may be demanded ex-debito, as a matter of right. It connotes something given out of grace, favour, indulgence or gratuitous. In any case, that the claimant’s service was tainted with misconduct and so he cannot claim as per Exhibit J. Exhibit J stipulates that approval has been given for a revised Long Service Award Scheme by management with effect from 1st April 2007; and that the highlight of the new scheme is the monetisation of all mementos. The monetary value of each award is then provided. But in the last paragraph, Exhibit J provides as follows – It is important to note that any staff with pending irregularity as at the anniversary date is not entitled to the award until the case is decided, while terminated and dismissed staff are not entitled to the awards/certificate/plaques. The claimant by Exhibits B and C was dismissed, which dismissal was then converted to termination. Going by the last paragraph of Exhibit J, the claimant is not entitled to any long service award, his appointment having been terminated; and I so find and hold. Relief (h) accordingly fails and is hereby dismissed. Relief (i) is for location allowance in the sum of N44,041.66 from the 5th of October 2009 to 21st December 2010. The defendant referred to Exhibit I, a letter dated 3rd November 2008 and titled “New Compensation Package – Officer I”, which at the second page indicated that location allowance is “5% of Housing allowance payable at the end of the year for staff working in following cities: Lagos, Abuja, Port Harcourt, Warri”. The defendant then submitted that the onus is on the claimant to show where exactly he worked between 5th October 2009 and 21st December 2010, the period he claims for the location allowance. The claimant has not shown to the Court where he worked between the period 5th October 2009 and 21st December 2010. So he cannot claim relief (i). Relief (i) accordingly fails and is hereby dismissed. Relief (l) is for an order compelling the defendant to issue to the claimant a letter showing that the defendant has remitted the claimant’s pension contribution to the claimant’s pension manager – Premium Nig. Ltd – and his contribution to the National Social Insurance Trust Fund. The reaction of the defendant regarding this claim is rather misplaced. The defendant seems to think that the claimant wants the defendant to pay to the claimant the said contributions. In paragraph 5.69 of its written address, the defendant had contended that it cannot be compelled to issue a letter of confirmation of remittance of pension funds to the claimant as it is not under any obligation to do such to any of its staff. This is not what the claimant is praying this Court for. All the claimant is asking for is that the defendant issues a letter that it has remitted the said contributions to the appropriate bodies. In paragraph 5.65 of its written address, the defendant acknowledged that it had remitted the claimant’s fund to his manager as it did for all its other employees. Since this is the case, all that is left for the defendant is to issue the confirming letter to the claimant both in respect of pension remittances and contributions to the National Social Insurance Trust Fund (NSITF). Section 12(1)(b) of the Pension Reform Act provides that as from the commencement of this Act, the right to retirement benefits of any employee who is already under any pension scheme existing before the commencement of this Act and has over three years to retire shall in the case of the employees in the private sector, credit the retirement savings accounts of the employees with any funds to which each employee is entitled and in the event of an insufficiency of funds to meet this liability the shortfall shall immediately become a debt of the relevant employer and be treated with the same priority as salaries owed; where there is such a debt the employer shall immediately issue a written acknowledgment of the debt to the relevant employee and take steps to meet the shortfall. Since section 12(1)(b) envisages that a written acknowledgment as to the indebtedness of an employer in the transfer of entitlement from defined benefits scheme into the new Scheme, there is nothing wrong in law with the claim of the claimant as per relief (l). I, therefore, hold that relief (l) has merit and accordingly succeeds. The claimant claimed for pre- and post-judgment interest on the sums claimed as can be seen from reliefs (e), (f), (g), (h) and (i). Reliefs (e), (g), (h) and (i) have already failed in their totality. The claim for both pre- and post-judgment interest is, therefore, not sustainable; and so is accordingly dismissed. In any case as a general rule and since Mr. Kurt Severinsen (suing through his lawful attorney Charles Edeki) v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 464, this Court has declined awarding pre-judgment interest. So the claim for pre-judgment interest by the claimant in regards to relief (f), which succeeded must fail. That claim for pre-judgment interest is accordingly dismissed. On the whole, and for the avoidance of doubt I hereby hold that the claimant’s claims succeed only in part as per reliefs (f) and (l). It is, therefore, ordered as follows – 1. The defendant shall within 30 days of this judgment pay to the claimant the sum of N231,512.50 (Two Hundred and Thirty One Thousand, Five Hundred and Twelve Naira, Fifty kobo) being his outstanding gratuity. Failing this, the said sum of N231,512.50 shall attract interest at the rate of 10% until it is fully paid. 2. The defendant shall within 30 days of this judgment issue to the claimant a letter showing that the defendant has remitted the claimant’s pension contribution to the claimant’s pension manager – Premium Nig. Ltd – and his contribution to the National Social Insurance Trust Fund. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip