ADEGBOYE v. SKYE BANK PLC

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MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Hon. Justice Y. O. Idowu of the High Court of Lagos State delivered in the Lagos Judicial Division on 30th day of October, 2008.
Initially, the Appellant as Plaintiff began this suit by Originating Summons of 08-10-1999 which later metamorphosed into a statement of claim of 14-02-2001. The Respondent filed a Statement of Defence on 08-05-2001.
However, by paragraph 23 of the Appellant’s Amended Statement of Claim of 31-01-2007, the Appellant claimed from the Respondent as follows:-
a) An Order of Declaration stating that the Claimant was forcibly and prematurely retired by the Defendant and is entitled to inclusion in the Pensions Scheme upon attaining the requisite age.
ALTERNATIVELY
An Order for the payment of the sum of N6,357,751:00 being an En Bloc payment of the retirement benefit due to the Claimant till she attains the age of 80.
(b) An order for the sum of N5,500,000:00 being GENERAL DAMAGES in respect of the loss of HEALTH, SHOCK AND TRAUMA occasioned by the DEFENDANT LETTER OF 20-12-1996.
(c) An Order for interest at the rate of 23 per centum upon ALL SUMS until Judgment is entered and 21 per centum till payment is made to the claimant.
The facts of the case are as follows:-
The Appellant was in the employment of the Respondent Bank from 16th August, 1968 continuously until 20-12-1996 when her employment was determined by a letter of same date.
The Respondent had set up as far back as 1/1/1970 a Staff Provident Fund (SPF) Life Assurance Scheme managed by the Royal Exchange Assurance Limited for benefit of Employees towards the terminal exit from employment via retirement. Under this Provident fund, Employer (Respondent) contributed up to 20% of a staff emolument while Employee contributed 5% his earnings into the Provident Fund. The Provident Fund paid one time enbloc payment to retired Employee.
Under a new in-house Afribank Nigeria Plc Staff Pension Scheme, the Employer (Respondent herein) contributes 22¹_/2 of staff emolument into the Staff Pension Scheme Fund. Staff were given the option of collecting the surrender value of their contribution under the old provident Fund managed by Royal Exchange Assurance Ltd or allowing the accruing sum to be transferred into the new in-house staff pension Scheme for purposes of working out their final entitlement at severance of employment if that staff meets the qualifying criteria under the Rules governing the Staff Pension Scheme.
The Appellant was given the option to receive her benefit from the previous provident Fund Scheme by the Respondent letter of 28th August, 1996 shortly after the new in-house Afribank Nigeria Plc Staff Pension Scheme became operation document following its approval by the Joint Tax board and execution by the Afribank Nigeria Plc Signatories. The Appellant elected to be paid her surrender value and was duly Paid.
The Respondent Bank determined the employment of the Appellant by a letter dated 20/12/1996. However, conveying the break down of Appellant Gratuity Benefit vide its letter of 14/1/1997, the Respondent erroneously and mistakenly informed the Appellant that she qualified for Pension when actually she did not under the Rules governing the new in house staff Pension Scheme. This error and mistake was subsequently rectified and corrected vide Respondent letter of March 11th 1999 to the Appellant informing her of the fact that she did not qualify.
The Appellant averred that she was born in 1941 and had not attained 50 years at the commencement of the new Staff Pension Scheme. That she refused the acceptance of the draft sum of N292,895.34 sent to her by the Respondent as the calculated retirement/terminal benefit. That she requested a breakdown, analysis of how the computed figure was arrived at, but the Respondent has failed to furnish same.
The Appellant averred that as a direct consequence of the letter of 14(03) 99, she suffered trauma, shock and a general deterioration of her health and had to be hospitalized, and that upon recovery, she instructed her solicitors to write the Respondent for a demand.
The Respondent states it is only bound to give an employee a three (3) Months Notice of Severance or salary in Lieu of Notice, which it did.
The Respondent admitted that there is a Deed of Amendment of Trust Deed but states that the Appellant does not qualify to participate or benefit under the trust deed having already attained the age of 50 years at the inception of the new scheme in

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1991 and not having served for at least 10 years period from the date of inception of the new scheme (1991) to date of severance of employment (1996) nor paid contributions for 10 years as stipulated by the trust deed.
The Appellant testified and the Respondent also gave evidence through its witness. Several documents were tendered as Exhibits.
At the end of the trial, the learned trial Judge considered that the main issue for determination is:-
“Whether the claimant is entitled to the pension having regard to the Rules governing the scheme”
In answering the question, the learned trial Judge found for the Respondent at Pages 352-353 of the Records as follows:-
“From the above its clear that the claimant having admitted collecting the surrender value of the previous staff provident contribution, and more particularly having not served in the scheme up to 31st December, 1997 has not satisfied the requirement for entitlement under the special concession as stated in the staff hand book.
However it is not in issue that the claimant after the collection of the surrender value of the previous staff provided contribution, did contribute in the new scheme though did not complete the required years, is entitled to what she had contributed.
From the foregoing, it is palpably obvious that the claimant is not entitled to pension, having not completed the required numbers of years; moreover, she had collected her surrender value as well as her gratuity and the 3 months in lieu of notice.
On the issue of general damages in respect of the loss of health, shock and trauma occasioned by the Defendant’s letter of 20/12/1996.
Generally, damages are awarded for loss sustained by the party who claim in order to restore the party to a position he would have been had the injury not been done to his interest.
In the instant case, the Claimant claimed general damages of N5,500,000.00. No evidence was given for such damages.
General damages are such as the law will presume to be direct natural or probable consequences of the act. The Claimant’s claim for general damages in respect of the loss of health, shock and trauma suffered was not proved and thus hereby fails”.
Dissatisfied with the above Judgment, the Appellant filed a Notice of Appeal containing Five Grounds of Appeal into this Court on 20/01/2009.
The relevant Briefs of Argument are:-
i. Appellant’s Brief of Argument dated 13/10/2016 and filed on 23/12/2016-settled by K. O. Irabor, Esq.
ii. Respondent’s Brief of Argument dated 19/12/2016 and filed on 12/01/2017 – settled by Chuma Ajaegbu.
Learned Counsel for the Appellant nominated four (4) Issues for determination as follows:-
1. Whether Appellant is not entitled to Judgment having regard to the documentary evidence before the trial Court, particularly the fact that the alleged surrender value of the old pension scheme which for all intent and purpose had merged into new scheme was suo motu paid into the Appellant’s account at the instance of the Respondent, and without the Appellant’s solicitation about 6 years after the commencement of the new scheme and less than 4 Months before her premature retirement – at the time the Respondent was already contemplating to retire the Appellant.
2. Whether the Court below ought not to have looked into the schedule to the Amended Trust Deed of Afribank Nigeria Plc Staff Pension Scheme in order to determine whether the Appellant is entitle to pension, instead of the staff handbook which is a mere explanation of some Provisions in the Pension Rules.
3. Whether the Court below was right in holding that the Appellant having collected the surrender value of the previous staff provident contribution … has not satisfied the requirement for entitlement under the special concession as stated in the staff handbook’ without considering the circumstances under which the said surrender value was ‘collected‘ as well as overlooking other special provisions that entitled the Appellant to pension.
4. Whether the Appellant is not entitled to pension under the redundancy provision of the Rules governing the pension scheme.
The Respondents similarly formulated Four Issues for determination coined as follows:
1. Whether the Appellant is not entitled to Judgment having regard to the totality of evidence before the trial Court.
2. Whether the trial Court was entitled to and right to call in aid documentary evidence placed before it including the staff handbook in arriving at finding whether Appellant is entitled to Pension.

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3. Whether the trial Court holding that Appellant did not satisfy the requirement for entitlement under special concession contained in the Staff Handbook explaining the Staff Pension Scheme because she had
collected the surrender value of the previous staff Provident Fund contribution is perverse, absurd and wrong.
4. Whether the Appellant qualified for Pension under the Afribank Nig. Plc Staff Pension Scheme and Rules governing it especially the redundancy Provision thereof.
The Appellant’s complaint on Issue One which relates to Ground One of the Appellant’s Notice of Appeal is that the learned trial Judge erred in law in dismissing the Appellant’s Claims in spite of the fact that on balance of probability the evidence before the Court ought to tilt in favour of the Appellant.
Learned Counsel for the Appellant reiterated the facts of the case that the Appellant was in the employment of the Respondent for 28 years beginning from August 16, 1968 and contributed regularly to the Pension Scheme of the Respondent (which contribution was deducted at source). That even after the amendment/reform in the scheme in 1991, the Appellant was qualified to continue in the Respondent’s Pension Scheme and continued to contribute until she retire on December 20,1996.
The Appellant did not attain her normal retirement date before she was involuntarily retired on December 20, 1996. Appellant’s Counsel conceded that the Appellant does not contest the right of the Respondent to retire her but asserts her entitlement under the Pension scheme which she contributed to until her retirement.
Counsel submitted that under the interpretation clause, i.e Rule 1 commencement date of the scheme means the first day of January 1970″. That this provision is neither superficial nor accidental, but provided to take care of the interest of the those like the Appellant, who have acquired interest in the scheme before the 1991 amendment. Significantly, there is no repeal of the previous scheme under any provisions of the new amended scheme.
Learned Counsel for the Appellant urged us to view the unsolicited payment of the surrender value of the previous scheme to the Appellant about six years after the commencement of the new one and a few months before the Appellant’s forced retirement as not only prejudicial to the Appellant, but unjust enrichment to the Respondent. This, he said is more so when viewed against the back drop of time value of money.
He argued that while the commencement of the scheme under Rule 1 (i.e first of January 1970) is applicable to employees like the Appellant who was in the employment of the Respondent before the new scheme, the date of commencement under Rule 2 (i.e first day of January 1991) is applicable to employees who joined the service of the Respondent from first January 1991.
He submitted that the internal disharmony in the Rules of the pension Scheme if any, should not work against the Appellant but the Respondent who made the Rules.
He referred to the case of: ANIMASHAHUN VS. OSUWA & ORS (1972) 1 ALL N. L. R. 372 at 373 and submitted that in interpreting documents, “no gloss should be put on any words used – that Rule 1, which is the interpretation clause states that the commencement date of the scheme means “the first day of January 1970”.
Finally on Issue One, Appellant’s Counsel submitted that there is also the Provision of Rule 6 (d) which in fact was the provision under which Exhibit F was anchored. It states “As for pension benefits, your entitlement will start to be paid to you when you become 60 years old before which time you will be informed”.
He concluded on Issue One, that the Appellant is therefore qualified for Pension under Rule 1 and Rule 6 (d) of the Pension Scheme Rules.
In responding to Appellant’s Issue One, learned Counsel for the Respondent reviewed the gamut of the oral and documentary evidence tendered in the case.
He submitted that the Appellant was wrong when he suggested that commencement date of the scheme means “the first day of January, 1970 therefore providing and covering for the interest of the Appellant and others who have acquired interest in the scheme before the 1991 amendment and qualifies Appellant to receive pension under the new scheme.
He submitted that the crucial element to consider is not the commencement date of the scheme but what amounts to “pensionable Service” under the Staff Pension Scheme. What is at stake, said counsel is pension payable and receivable. That the same interpretation clause Rule 1 of the Rules governing the

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Deed of Amendment of the Trust Deed states that “Pensionable Service” means for the purpose of this scheme all period of continuous service as a member subsequent to first January 1991
He submitted that the period qualifying the employee members to benefit under the new Staff Pension Scheme is the period spent as a member from 1/1/91 and not previous. Therefore the Appellant is wrong in her contention that commencement date interpretation governs. Rather “Pensionable Service” years controls qualification to benefit from the Staff Pension Scheme.
Commencement date of the Scheme being stated to be 1/1/1970 in the interpretation clause Rule 1 of Rules governing the Deed of Amendment of the Trust Deed is because the original Staff Provident Life Assurance Fund commenced on that date and by the recital of the Deed of Amendment of the Trust Deed, that was recited. The Scheme being stated to commence on 1/1/1970 is for purposes of allowing employees not to lose their benefit completely and to elect whether or not to receive the surrender value of their contribution under the old Staff Provident Fund.
According to Counsel, if a member elects, he can collect the surrender value otherwise that accruing sum (not previous year of service) will merge to his favour into the new Pension Scheme. However, the member must qualify by serving up till the new number of years as stipulated in the Rules to benefit under the Staff Scheme. If such member leaves service before meeting the qualifying years then he will receive only the surrender value of his contribution alone although same was merged into the new Staff Pension Scheme.
He submitted for example if an employee who was a member of the old Provident Fund elected not to take the surrender value at the inception of new Staff Pension Scheme, then the sum (not years of service) accruing to him will merge into the new Staff Pension Scheme for his benefit. Nevertheless if this employee do not put in up till 10 years further service from 1/1/1991 then such employee will get paid only the surrender value of his contribution made both under the previous Provident Fund and new Staff Pension Scheme BUT will not be eligible for pension payment from month to month under the new Staff Pension Scheme (see Rule 6 (a) governing the Deed of Amendment of the Trust Deed at Pages 59 and 60 of the Record of Appeal showing nil Pensionable Service years of less than 10 years).
The Appellant’s employment said Counsel was determined on 20/12/1996 and so she did not serve up till the qualifying requisite years calculated from 1/1/1991 as to qualify for pension benefit. This evidence do not support Appellant’s claim that she is entitled to Judgment and trial Court was right in dismissing her claim.
He submitted that in paragraph 3.1.4 at page 4 of the Appellant’s Brief, Appellant tried to create impression that the surrender value of the previous Staff Provident Fund was unsolicitedly paid to her by the Respondent. However this is not true, as it was the Appellant herself who elected to be paid the Surrender Value and same was paid to her. This fact was admitted by the Appellant at paragraph 18 of witness statement on oath at page 37 of the Record of Appeal and under cross examination at page 314 of the Record of Appeal. The Respondent only offered the Appellant the choice to be paid the surrender value or not and the Appellant elected to be paid. (See letter of 28/8/1996 at Page 44 of the Record of Appeal).
Learned Counsel for the Respondent referred to the cases of:-
UDE VS. A.G RIVERS STATE (2002) 2002 4 NWLR (PT. 756) 66, SUFIANU VS. AMINASHAUN (2000) 14 NWLR (PT. 688) 650 and DAGGASH VS. BULAMA (2004) 14 NWLR (PT.892) 144.
and submitted that the Appellant had admitted that she elected to be paid the surrender value of the provident fund and never alleged any coercion or intimidation both in her witness Statement on Oath or her ipse dixit testimony in Court and, that so it becomes an exercise in futility for the Appellant at this Appeal stage to raise it.
Respondent’s counsel debunked the suggestion by the Appellant’s Counsel that the Appellant would be qualified for pension under Rule 6 (d) of the Staff Pension Scheme.
He submitted that the Appellant was not rendered redundant because of any re-Organization at the Respondent Bank. Rather, that the Appellant was relieved of her employment because her service was no longer required.
Finally on Issue one, Respondent’s counsel submitted that the letter of 14/01/1997 by the Respondent (Exhibit F) was an error of Judgment on the part of the officer

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of the Respondent and same has been rectified by another letter of 11/03/1999 (Exhibit H) and cannot be a basis of Appellant’s claim of entitlement to Judgment.
In deciding Appellant’s Issue one, I must quickly point out that neither the separate nor combined reading of Rules 1 and 2 of the Pension Scheme Amended Trust Deed nor the application of Rule 6 (d) could help the Appellant’s case and/or entitlement to pension under the scheme.
The truth is that for one reason or the other, unfortunately so, the Appellant has not fulfilled the vital conditions in the scheme to be able to qualify for pension. One of such is that even if an employee joins the new Pension scheme and makes contribution, his benefit for the purpose of the pension scheme is only dependant on his/her continuous service for ten years after the 1991 Amendment date of the scheme. For example, under Rules 6(a) and (b) whether an employee retires normally at 60 years or retires prior to attainment of such age as in the case of the Appellant the minimum number of years for pensionable service under the new scheme is 10 years. In fact, in the tabulation provided under Rule 6, nine (9) years service post the said 1991 date is not regarded or counted as pensionable service.
Indeed, for this purpose and as Cardozo, J. said in the American case of:- UNITED STATES VS. GREAT NORTHERN Ry. 287 U.S. 144, 154 (1932).
We have not traveled, in our search for the meaning of the lawmakers, beyond the borders of the statute.
This is because as Justinian Digest put it: A Verbis legis non est recedendum Digest 32. 69 “The text of a statute or rule is the primary, essential source of its meaning.”
In deciding an issue governed by the text of a legal instrument, the judex does not depart from the law. This is because the ordinary meaning rule is the most fundamental semantic rule of Interpretation. The terms of writing are presumed to have been used in their primary and general acceptation.
I do agree that there is obvious misconception on the part of the Appellant that commencement date of scheme is synonymous with “pensionable service” years under the scheme. This is not so.
I also agree with the learned Counsel for the Respondent that the commencement date stated to be 01/01/1970 was to allow members having entitlement under the old Staff Provident Fund who do not want to collect the surrender value accruing thereof to be able to transfer same and merge into the new Staff Pension Scheme for purposes of working out their final monthly pension. However, such member must have spent up till 10 Pensionable Service year from 01/01/1991 to be qualified for pension. Otherwise he will be paid only the surrender value of his contribution.
In relation to Rule 6 (d) of the Pension Scheme, it is clear that the provision is only applicable to employees rendered redundant consequent on re-organization by the employer and also does not by any stretch of imagination apply to the Appellant’s case. Issue One is resolved against the Appellant.
On Issue Two, learned Counsel for the Appellant submitted that the Court below did not consider the Rules of Pension Scheme which is the schedule to the Amended Trust Deed Exhibit A. That if the Court had examined Exhibit A, it would have come to the conclusion that the Appellant is entitled to pension as of right, having served the Respondent for a continuous period of 28 years throughout which period, she made contribution to the Respondent’s pension Scheme.
Learned Counsel for the Appellant added that this Honourable Court, being a Court of law and equity should consider the events from when Exhibit B originated to Exhibit D.
Respondent’s letter retiring the Appellant, as well as Exhibit F, the Respondent’s undertaking to commence payment of Appellant’s Pension when she attains 60 years of age, even to Exhibit H which retracted the undertaking on the ground of purported mistake. That this Court will find the whole events were one unbroken chain of premeditated events- craftily concocted and executed to deny the Appellant her legitimate entitlement.
Learned counsel for the Respondent on the other hand made references to the Judgment of the learned trail Judge especially at Page 352 of the Record not only to assure the Appellant???s counsel that the learned trial Judge was indeed aware that the in-house Pension scheme of the Defendant – Respondent is regulated by the provision of the Deed of Amendment of Afribank Plc which commenced on 1st January, 1991. But also to show that the learned trial Judge further

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referred to the staff handbook which provision unfortunately did not also help the Appellant’s case.
He repeated that pensionable years is defined as the number of years subsequently to 01/01/1991 that a member served the employer and contributed into the scheme. And that previous number of years of service as that of the Appellant prior to 01/01/1991 does not count for the purpose of qualifying for pension under the new scheme.
Clearly, I have provided the answer to Appellant’s Issue Two in my treatment of Issue One.
Perhaps, it suffices to add that the pension scheme is an agreement between the parties. That an agreement or contract is a bilateral affair, which needs the ad idem of the parties. And more importantly that a Court of law must always respect the sanctity of the agreements reached by the parties. It must not make a contract for them or re-write the one they have already made for themselves.
See:
SONA BREW PLC VS. PETERS (2005) 1 NWLR (PT. 908) 478, OWONIBOYS TECHNICAL SERVICES LTD VS. U.B.N. LTD (2003) 15 NWLR (PT. 844) 545 and S.E. CO. LTD VS. N.B.C. 1 (2006) 7 NWLR (PT. 978) 201.

Issue Two is resolved against the Appellant.
On Issue Three, learned Counsel for the Appellant repeated the facts of the case and noted that on July 15, 1996, the Respondent wrote the Appellant that she had retired on April 18, 1996.
The Respondent discovered the fallacy of their claim and apologized to the Appellant (Exhibit B). That it was here they made overture to the Appellant that she could receive the surrender value of the previous scheme, which had merged into the new one.
Appellant’s Counsel believes that the Respondent’s contrive this clever plot to subvert the Appellant’s already accrued rights to pension that as soon as her account was credited with the alleged surrender value of the previous scheme, she was retired on December 20, 1996.
Appellant’s Counsel asked rhetorically- should the Court close its eyes to the circumstances under which the alleged surrender value of the previous scheme was paid to the Appellant?
He concluded that Equity looks at the intent and at form. And, that since the Respondent had undertaken to pay the Appellant her pension upon attainment of 60 years, they should be estopped from asserting contrary position.
Learned Counsel for the Respondent submitted that in paragraph 18 of Appellant’s written Statement of Oath, the Appellant unequivocally stated she was asked to confirm if she wanted to be paid the surrender value of her contribution under the staff provident fund and she elected to be paid and was paid.
He referred to the cases of:
A.T.M. PLC VS. B.V.T. LTD. (2007) 1 NWLR (PT.1015) 259 at 263 and ANASON VS. NAL MERCHANT BANK LTD (1994) 3 NWLR (PT. 331) 241.
To demonstrate that facts, expressly admitted need no further proof and that the trial Judge was right to have accepted amongst other things, the Appellant’s admission that she voluntarily exercised the option to receive the surrender value under the old Provident Fund Pension Scheme.
There are only two things to say in deciding Appellant’s Issue Three. The first is to remind the Appellant who has expressed a lot of sentiments in her Brief of Argument, that a trial is not an investigation and investigation is not the function of a Court. The duty of a Court is to receive and test evidence openly demonstrated between the parties and rely on only same to arrive at just conclusions.
See e.g. DURUMINIYA VS. C.O.P. 1961 NNLR PAGE 70.
The second thing to say in the determination of this issue is that the learned trial Judge has provided a complete answer to said Issue Three when he held at Page 352 of Record that:
“The Claimant having admitted collecting the surrender value of the previous staff provident fund contribution and more particularly having not served in the scheme up to 31st December, 1997 has not satisfied the requirement for entitlement under the special concession in the staff hand book.”
Issue Three is resolved against the Appellant.
On Issue Four, learned Counsel for the Appellant submitted that the Appellant is at least qualified to be paid pension under the redundancy clause in Rule 6(d) of the Staff Pension Scheme.
Counsel submitted that it is significant that the Respondent stated that the Appellant’s services were no longer required as a result of which she was retired before her normal retirement time.
This act, said Counsel, obviously rendered the Appellant redundant and by the express provision of the Pension Rules, the

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Respondent ought to commence payment to the Appellant upon her attainment of the age of 60.
He referred to the case of: LLOYD VS. BRASSEY (1969) 1 ALL E.R. 382, that it has been held that “a worker of long standing is recognized as having an accrued right in his job; and rights gained in value with the years so much that if the job is shut down, he is entitled to compensation for loss of the job the worker gets a redundancy payment
Learned counsel for the Respondent on the other hand submitted that the Appellant does not qualify for pension under the redundancy clause because the Appellant was not relieved of her employment because of any re-organization by the Respondent Bank but because her services were no longer required.
He referred to the case of YAKUBU vs M.W.T. ADAMAWA STATE (2006) 10 NWLR (PT. 989) 513 at 565 to say that A Court of Justice can only adjudicate and determine issues raised before it and come to a Just decision based only upon evidence adduced before it.”
He concluded that the evidence in the present case does not support the contention of the Appellant that she is entitled to Judgment.
In the instant case, the retirement of the Appellant was not based on re-organization by the Respondent. The Appellant could not therefore invoke the provision of the redundancy clause in Rule 6 (d) of the Staff Pension Scheme to justify her entitlement to pension.
Consequently, the learned trial Judge was correct not to hold that Appellant was qualified for Pension under the redundancy clause.
Issue Four is also resolved against the Appellant.
Having resolved the four Issues in this Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.
The sum of Thirty Thousand Naira (N30,000:00) costs is awarded to the Respondent.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA, just delivered. I agree that the appeal is lacking in merit and also dismiss it. I abide by the order made as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read before now the lead judgment of my learned brother Mojeed Adekunle Owoade J. C. A. and I agree with his reasoning an conclusion; consequently, I also dismiss the appeal for lacking in merit.
I abide by my brother’s order as to costs.