Download PDF
REPRESENTATION I. A. Adebiyi for the Claimant Uche Udoji with Sofia Aikhomu for the Defendant JUDGMENT By a General Form of Complaint dated 15th April 2013, 'the Claimant claimed against the Defendant the sum of =N=3, 536,779.70 being her pay for performance allowance for 2011 having satisfied the condition precedent'. The Complaint was accompanied by a Statement of Facts, List of Witness, List of Documents, Claimant's Statement on Oath and copies of the Documents to be relied upon at the trial. On the 13th of May 2013, the Claimant brought a Motion for amendment of the Complaint and other frontloaded processes. The application was to specifically amend the name of the Defendant to read First Bank of Nigeria Limited. That application was granted on the 27th May 2013. Defendant entered an appearance on the 13th of June 2013 and on the 17th of June 2013 filed its Statement of Defence, List of Witness and Defendant's Witness Statement on Oath. Defendant did not file any list of documents to be relied upon at the hearing. Claimant subsequently filed a 4-paragraph Reply to the Statement of Defence on the 11th of July 2013. From the Statement of Facts the Claimant was employed by the Defendant on the 1st June, 1986 as a supervisor and retired meritoriously after 25years in service on the 31st January, 2012. The Claimant averred that the Defendant is a leading financial institution in the country with its head office at 35 Marina, Lagos. The Claimant averred that while in the employment of the Defendant she served in three branches in Ibadan as well as the Training Center and Human Capital Department in Lagos and that she retired as a Business Manager, Retail Group, Apapa Branch, Ibadan, Oyo State under the Defendant’s Special Incentive Scheme on 31st January, 2012. That the Defendant used to give its employee individual statements of salaries and allowances. It however stopped doing so in October 2010 when it adopted automation and electronics processes in respect of staff matters. The Claimant averred that her remuneration package was available on the Defendant’s network from October 2010, but could not be downloaded. And that it was from the said network she carefully copied her salaries and allowances for 2011. And from her computation she was entitled to a total sum of N15,540,616.20 per annum. The Claimant further averred that she was paid the above salary and allowances in 2011 except the Pay for Performance (PFP) which is the subject matter of this action. The Claimant also averred that the Defendant used to reward good performance by its employee under paragraph 9.2 of its Employees Handbook published in March 2007 under the sub¬-heading “Variable Pay” and that by this said Variable Pay, employees were paid for good performance subject to three conditions namely: the bank must achieve its target, the department or branch of each employee must perform well and thirdly, the employee must be on the payroll on the date of payment. The Claimant stated further that as a result of these conditions, Variable Pay was not achieving the purpose it was supposed to serve, as there was general dissatisfaction with the condition attached to it as a result of which the Defendant changed it to Pay for Performance in October 2010; that under the Pay for Performance (PFP), good performance by its employee was the sole criterion in determining who gets it and that in determining good performance by its staff, the Defendant introduced a scorecard by which individual performance of each employee is assessed by Human Capital Department at its Head office in Lagos. The Claimant pleaded that in 2011, she performed excellently and was scored 99% which was one of the best for that year; that the Pay for Performance Allowance for 2011 was paid to those that performed well in the month of April, 2012 after her retirement on 31st January, 2012 and that her colleagues who did not score up to 99% were paid the sum of N3,536,779.70 fully and those who score above 50% were rewarded. The case for the Defendant was that by an Offer of employment letter dated 21/4/86 the Claimant was offered employment as a Supervisor subject to stated terms; that the Claimant left its employment through its lucrative voluntary retirement scheme on 31/1/2012 under and by virtue of a lucrative early retirement package and that where a staff desires to take advantage of the early retirement scheme, such staff is entitled to extra one year salary and emoluments; that in the case of the Claimant herein after her indebtedness to the bank was removed, she was paid the total sum of N14,317,753.25. The Defendant also avers that the lucrative payment is subject to the condition that such staff would not be entitled to the Variable Pay Payable to the staff of the Defendant for the year; that the Claimant however retired, took extra bonus pay and came back to ask for the Variable Pay in the sum of N3,536,779.70 only, which the Claimant alleged she was entitled to and preferred to refer to as Pay for Performance; and that all the facts concerning early retirement, Guaranteed and Variable Pay are codified in the Employees’ Handbook which is a contract between the Defendant and its employees including the Claimant and the document which the Claimant relied upon to retire. The Defendant further averred that the Handbook which was made in 1987 which had guided and still guides the relationship between the Defendant and its staff remains operational and in existence till today in its original form; that the Claimant took advantage of the provisions of the Employee Handbook in January 2012, which is a contract between parties herein. However after taking the advantage, to avoid the condition attached to the same provision of the Handbook, she now resorts to extrinsic material by way of the Introductory Section of the 2010 Annual report and Account of the Defendant to vary and or add to the provisions of the Handbook. The Defendant contended that the Handbook was never amended and remains intact till today and that the said 2010 Annual Report never made reference to the Employees Handbook nor said any other thing the claimant alleged. The defendant urged the Court to dismiss the suit with huge cost as same was an abuse of court process. The hearing of this case commenced on 11th September 2013. Claimant called one witness CW1. Claimant adopted her 3 written statements on oath as her evidence in this case and tendered 7 Exhibits- Exh. FAA1, Exh. FAA2, Exh. FAA3, Exh. FAA 4, Exh. FAA 5, Exh. FAA6 and Exh. FAA7. Under cross examination, Claimant testified that she served the Defendant for 25yrs and 7months; that she received all her salaries and allowances throughout the period of her service; that there was a change from Variable Pay to Pay for Performance; that there was no documentary evidence of the change from Variable pay to Pay for Performance; that she left the employment of the Defendant on 31/1/12 and that the Pay for Performance was paid in April 2012. Claimant further testified that she retired voluntarily from the Defendant and because she retired earlier than she ought to she was given one year salary in full as incentive; that the Defendant Handbook is applicable to all staff of the Defendant and that she was not using the suit to intimidate the Defendant. Under Re-Examination by her Counsel, Claimant restated the fact that there was no documentary evidence of change from Variable Pay to Pay for Performance and that her claim in this court was pay for performance for the year 2011. On the 6th of November 2013, Defendant opened its case by calling a lone witness Olufemi Oguntoyinbo DW1. Witness adopted his witness statement on oath dated 17/6/13. Though Defendant did not file any list of documents to rely on in this case, by Notice to Produce dated 1/7/13, this witness tendered 2 Exhibits Exhibit D1 and Exhibit D2. The Employee Handbook of the Defendant of March 2007 was admitted as Exh. D1 while First Bank of Nigeria Plc Annual Report & Accounts of 2010 was admitted and marked Exh. D2. Witness urged the Court to dismiss the case of the Claimant. Under Cross Examination, witness testified that there was pay for performance in the Defendant from October 2010; that he could not confirm that the financial statement deposed to in paragraph 6 of the Claimant's written statement is correct; that Claimant was not paid Pay for Performance for 2011; that pay for Performance was paid on the basis of good performance and that in 2011the Claimant's score card was 99%. He added that there was no document or e-communication on Pay for Performance and that the Defendant no longer gave salary advice to staff by paper but rather by electronic means and that every staff has his/her salary advice. On the 4th of February, 2014, learned Counsel on both sides adopted their final written addresses. In his final written address filed on the 21st January 2014, learned counsel submitted 2 Issues for determination as follows: 1. Can an extrinsic material be admitted to interpret clear provisions of a contract between parties to wit: Can the introductory pages of the 2010 Annual Report and Accounts of the Defendant vary the stipulations of the Employee Handbook of the Defendant dated March 2007 which is an agreement between the defendant and its staff including the claimant (whilst she was a staff)? 2. Is this not in abuse of court process and if court finds it to be so, what is the proper order of court to be made? On Issue 1, learned Counsel states that the Claimant confirmed being paid all her entitlement safe the alleged pay for performance. Counsel referred to paragraph 8.12.1 of Exhibit D1 (Exh. FAA1) Employees Handbook of the Defendant. Counsel submitted that Claimant knew too well that by taking advantage of the said provision she would not be entitled to variable pay which the Claimant referred to as pay for performance. According to learned Counsel, referring to paragraphs 9.1 and 9.2 of the said Exh. D1, the Defendant operates two levels of payment comprising of Guarantee Pay and Variable pay. According to Counsel, Variable pay, by Exh.D1 is based on performance and only to staff who are on the pay roll of the Bank on the day of payment. Counsel argued that Claimant voluntarily retired from the Defendant on 31/1/12 and that as at April 2012 when the variable pay was paid Claimant was not on the pay roll of the Defendant. Learned Counsel submitted that the claim by the Claimant that the Annual Report & Accounts of the Defendant (Exh. D2) changed the criteria for payment of Variable Pay/Pay for Performance because the old dispensation was not achieving its purpose was a mere figment of the Claimant's imagination as that was not contained anywhere in the Report. Counsel submitted that parties are bound by the terms of their contract and that Court will generally not permit extrinsic evidence to add, vary or subtract from or contradict the terms of the written instrument, relying on Larmie v.DPMS Ltd (2005)18 NWLR (Pt. 958) 438, Olaloye v. Balogun (1990)5 NWLR (Pt. 148) 242 at 514 and Sarkar, Law of Evidence, 16th Edition, 2007. vol. 1, page 1418. Counsel pointed out that while Claimant tendered selected photocopied pages of Exh. D1, Defendant tendered the original of the said Exhibit upon Notice to Produce at the instance of the Claimant. Learned Counsel urged the Court to, on this ground alone, dismiss the suit of the Claimant with substantial cost arguing that Exh. D1 had been governing the relationship between the parties since 2007 without the Claimant complaining. On Issue 2, learned Counsel submitted that the whole essence of this suit was to harass and intimidate the Defendant into accepting to pay an additional emolument which the Claimant knew she was not entitled to from the outset. Counsel pointed out that the provision of the Employee Handbook was very clear that if the Claimant collects free one year salary upon early retirement she will not be entitled to the variable pay in the sum stated. According to Counsel, Claimant retired on January 31 2012 while the variable was paid in April 2012. To Counsel, Claimant was not enforcing her constitutional rights but merely abusing the process of Court to harass and intimidate the Defendant. This, he referred to as an abuse of Court process. Counsel cited A.G Federation v. A. G. Abia State & Ors. (2007)7 SC (Pt. 1) 32. Agwasim v. Ojichie (2004)4 SC (Pt. 2) 160 and Dingyadi & Anor. v. INEC & 2 Ors (2010)4-7 SC (Pt. 1) 76, at 169. Counsel urged the Court to dismiss this case accordingly. In his final written address filed on the 27th January 2013,learned Counsel for the Claimant put forward two issues as follows: 1. Whether the Claimant has established her right to 2011 pay for performance; and 2. Whether the Defendant has offered any valid reason for not paying it. Learned Counsel elected to argue both issues together. In doing so counsel submitted that the Defendant dodged issue for determination which hinged on pay for performance and rather concentrated on variable pay. Counsel submitted that where a party filed a pleading that is ineffectual, it amounts to an involuntary admission of the other party's pleading, citing Sebastine Hon; Law of Evidence in Nigeria: Substantive and Procedural at p.82 and Yesufu v. Kupper Inernational (1996)4 SCNJ 40. Counsel urged the Court to hold that the case of the Claimant was credible and having not been challenged or weakened by the Defendant in its deposition and cross examination of the Claimant, then the Claimant's claim is deemed admitted. Counsel cited Omoregbe v. Lawani (1980)3-4 SC 108 at 117 and Aiki v. Idowu (2006)9 NWLR (Pt. 984) 47 at 69. Counsel further submitted that apart from the deemed admission, there were also several actual admission by the defendant of the claim of the Claimant. Counsel referred to paragraph 3 of the Defendant's written deposition on oath. He thus urged the Court to hold that by this actual admission, Claimant was entitled to judgment on the sum claimed. It was the contention of the learned counsel for the Claimant that the defendant had variable pay with the three conditions as a performance related allowance in paragraph 9.2 of Exh. FAA1/Exh. D1. Counsel however submitted that variable pay has been replaced with pay for performance in 2010 referring specifically to page 15 of Exh. D2 - Annual Returns & Accounts of the Defendant. According to him, there was no condition that the Claimant must be on the pay roll of the Defendant at the time of payment. He urged the court to affirm the entitlement of the Claimant to the 2011 pay for performance, ''give judgment to the Claimant for the sum of =N=3,536,779.70 as pay for performance and to award post judgment interest of 10% per annum because many financial institutions now file spurious appeals where interests are not awarded because they gain by it''. I have read and reviewed with sufficient understanding all the processes filed in this case including the final written addresses of counsel. I also listened with attention to the oral submissions of Counsel in this case in open Court. Considering the nature of this case, the evidence led and the diverse issues raised for determination by Counsel on both sides, i have set down a lone issue for the determination of this case. This issue is this : Whether the Claimant has proved her claims before the Court. Before i address the lone issue for determination as stated above, it is imperative for me to make a few remarks on my observation in this case. The Rule of this Court by Order 19 Rule 13 deals with the order of filing written addresses. The Order states as follows: 13 (1). When the party beginning has concluded his or her evidence, the Court shall ask the other party if the party intends to call evidence. If the other party does not intend to call evidence, the party beginning shall within 21 days after close of evidence file a written address. Upon being served with the written address, the other party shall within 21 days file his or her own written address. (2). Where the other party calls evidence he or she shall within 21 days after the close of evidence file a written address. (3). Upon being served with other party's written address the party beginning shall within 21 days file a written address. (4). The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within seven days of the other party's address'. Learned counsel in this case adopted their final written addresses on the 4th of February 2014. In the course of doing that, learned Counsel to the Claimant intimated the court of a particular judicial authority which he claimed would assist the Court in reaching a just decision of this case. Counsel promised to send a copy of that judicial authority to both the Court and the Counsel to the Defendant. Unfortunately, what learned Counsel to the Claimant did was to file an 8-page document titled 'Further Address on Issues Arising from Adoption of Written Address on 4/2/2014' dated 10th February 2014 with a 2-page attachment. It is unclear what purpose learned Counsel intended to achieve by turning in a 10-page document in place of a judicial authority. Could this be a misunderstanding and misconception of the Rules of Court relating to filing of addresses? But could it be a question of misunderstanding simply put? On that note i say no more suffice for me to add that i completely discountenanced that document without a single reference to it for the purpose of this judgment. In arguing the case of the Claimant, learned counsel for the Claimant devoted substantial space and energy into issue of admission. Learned Counsel termed them Deemed and Actual Admissions in Pleadings. Counsel indeed made reference to and quoted a part of paragraph 3 of the defendant's witness written deposition on oath as follows: '...The Claimant has set out in her statement on oath and statement of facts already forming part of records of this honourable Court schedule of salary and entitlements she was entitled to and received in 2011 which summed up to =N=15,540,616.20...' Counsel had urged the court on the basis of the above alleged admission to find for the Claimant in the sum claimed. It is important to stress that the said witness statement on oath contained 18 paragraphs. Yet, Claimant opted to refer solely to just a part of paragraph 3 and asked for a judgment of court on same in total oblivion of other paragraphs of the said oath. Certainly part of paragraph 3 cannot be read in isolation of others especially paragraphs 5, 6, 8, 9 and indeed 13. The law is trite that in order to determine whether an admission of facts in pleadings is such as to entitle a Claimant to judgment, the whole gamut of the pleadings must be considered as a whole rather than consideration of isolated paragraphs. See Titiloye v. Olupo (1991)7 NWLR (Pt. 205, 519 at 532. Thus a consideration of the whole pleadings in this case does not reveal such admission to entitle the Claimant to judgment on the basis of same. There is agreement among parties that Exh. FAA1/D1 formed the basis of the relationship between them. While the Claimant contended that that exhibit had been varied and or altered by Exhibit D2 - Annual Returns and Accounts of the Defendant it was the argument of the Defendant that there was nothing like that. What then are the provisions of Exhibit FAA1 in relation to variable pay or pay for performance? Paragraphs 8.12.1, 9.1 and 9. 2 of Exhibit FAA1/D1 are relevant here. Paragraph 8.12.1 deals with Retirement. It provides that- 'The compulsory retirement age for every employee is sixty (60) years or 35 years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or have served up to 30 years or at his/her own discretion or at the discretion of the management. Early retirement benefits: a. One year total remuneration less variable pay (i.e total guaranteed pay including location and leave allowances/holiday travel allowances. This is in addition to the normal entitlements of the eligible staff under the banks existing pension scheme. However, any applicant who has less than one year to retire will have their incentive payments prorated'. Now paragraph 9.1 deals with Guarantee Pay. It provides as follows: 'The Bank operates a dual payment structure comprising Guarantee pay and Variable pay components. ''Guarantee pay is that element of each staff's annual total emolument (as advised in the offer letter) that is secured, so far she/he discharges his/her responsibility as expected. Payments are made on monthly, quarterly and annual basis. However, staff who exit the system before the end of any financial year will have the unutilised portions of such payments deducted from their exit packages''. Paragraph 9.2 deals with Variable Pay. It states that - 'The Variable pay represents additional emoluments payable to each staff subject to the Bank achieving its target, the performance of the respective staff's department/branch and the performance of the respective staff. The Variable Pay is paid: Based on performance. Only to staff who are on the payroll of the bank on the day of payment. 'Staff who have received warning letters will not benefit from the Variable pay; while staff on suspension will not be paid until the determination of their case'. The need to set out the above provisions cannot be overstressed. The Employee Handbook, Exhibit D1, in this case contains the terms and conditions of service between the Defendant bank and all its employees, including the Claimant. This indeed is aptly captured from page 5 - 6 of the said Exhibit. Now did this Exhibit in any of the referred paragraphs make provision for any payment in the nature or name of Pay for performance? I answer that question in the negative. However, CW1 under cross examination stated that there was a change from variable pay to pay for performance and that 'There was no documentary evidence of this change'. Under cross examination by the learned counsel for the Claimant, DW1 said that there was pay for performance in the Defendant from 2010, that claimant had not been paid pay for performance for 2011 and that pay for performance was paid on the basis of good performance. The evidence reviewed thus far in this case is not in any way in support of the claim of the Claimant. However the learned counsel for the Claimant had submitted that while Exhibit FAA1/D1 dealt with variable pay, Exhibit D2 the 2010 Annual Returns & Accounts of the Defendant introduced pay for performance. Earlier in her Statement on Oath dated 15th April 2013 adopted in this case on 11th September 2013, Claimant had averred in paragraphs 10 and 11 as follows: ''10. I am aware that there was general dissatisfaction with variable pay because the three conditions constituted a big clog in rewarding good performance. '11. The defendant therefore did away with the said variable pay in October 2010 and it replaced it with pay for performance (PFP). Under PFP, good performance is the sole criterion in determining who gets it. i also rely on page 14 of the defendant's Annual Report and Account as exhibit CLM 2 in proof of this assertion'. I should quickly point out that throughout the trial Claimant did not lead any evidence in proof of the fact of general dissatisfaction with variable pay. No former or serving member of staff of the defendant was called to attest to the existence of such dissatisfaction leading to a change from variable pay to pay for performance. No document or memo relating to same either originating from the Claimant or any other staff, former or existing, of the Defendant was presented. The principle of law that he who asserts must prove has acquired such notoriety that citing judicial authority to back same becomes rather unnecessary. Now counsel has referred to Exhibit D2 2010 Annual Report & Accounts of the Defendant as the new document supporting the existence of pay for performance. I have perused page 14 of Exhibit D2 as referred by learned counsel for the claimant. The phrase Pay for performance appeared twice on that page. First, under a subhead titled Pay for Performance and Pay for Role there is a comment as follows: ''Pay for Performance is a payout incentive to reward higher performance. Pay for Role is a payment for back office function''. Now at the bottom of that same page was a statement thus: =N=1.2 billion was expended as Pay for Performance to incentivise contribution and retain superior performers-this incentive commenced in 2010. Nothing else was said on that page in relation to Pay for performance. Learned Counsel for the Defendant submitted on page 6 of his final written address thus: All the years she was under employment, she received the emolument as 'Variable Pay' but immediately she left, it was retrospectively rechristened 'Pay for Performance'. She even received this 'variable pay' in the same 2010 when she said it was rechristened 'Pay for Performance''. In paragraph 14 of her Amended Claimant's Statement on Oath, the Claimant averred as follows: '14. I am aware that the defendant paid the pay for performance for year 2011 (1-1-2011 to 31/12/2011) in April 2012 and my colleagues on the grade of manager who did not score up to 99% were paid the sum of =N=3,536,779.70. In fact, those who scored about 50% were also accommodated.' Unfortunately, no evidence was led to back up the above assertion of the Claimant. None of such colleagues (former colleagues) of the Claimant was called as a witness. There was also no documentary evidence to support same. I have taken the steps of setting out as much as possible the relevant portion of the facts of this case vis-a-vis the position of parties and counsel alike. I have also pointed out that there is nothing on page 14 of Exhibit D2 to suggest a change from or replacement of variable pay with pay for performance as claimed by the Claimant. Although, Exhibit D2 was made in 2010 allegedly effecting a change to pay for performance yet it was not disputed by the Claimant that she was paid variable pay rather than pay for performance in the same 2010. I agree with the learned Counsel for the Defendant that there was an unnecessary confusion by the claimant of the existence of variable pay and pay for performance in the defendant. I find and hold that there is no evidence before me on the alleged change by the defendant from variable pay to pay for performance. I further find and hold that the use of the phrases variable pay and pay for performance is a reference to one and the same variable pay. Before i draw a line on this judgment it is pertinent to ask whether in the absence of any payment in the name of pay for performance is the Claimant entitled to variable pay for the year 2011 claimant having voluntarily retired under defendant's Special Incentive Scheme on January 31st 2012? Unfortunately, this issue was not canvassed before me. Thus not having had the benefit of being addressed on same by counsel it remains a mute point for me to comment on same. Finally, having considered the submissions of learned counsel in this case and having also reviewed all the Exhibits admitted in the same i find and hold that the sole issue for the determination of this case is resolved against the Claimant and in favour of the Defendant. The Claimant's case is here dismissed in its entirety as lacking in merit. Judgment is entered accordingly. ___________________ Hon. Justice J. D. Peters Presiding Judge