IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABAKALIKI JUDICIAL DIVISION
HOLDEN AT ABAKALIKI
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 2nd May 2018
SUIT NO. NICN/ABK/03/2017
BETWEEN
MR. AGHA ANYINA … CLAIMANT
AND
FIRST CITY MONUMENT BANK LTD … DEFENDANT
REPRESENTATION:
Ota Ewa Esq. for the Claimant
Olusegun Ademola Esq. for the Defendant.
JUDGMENT
The Claimant initiated this action by originating summons filed on 13th September 2017. By a further amended statement of facts dated 14th February 2018 and filed on 16th February 2018, the Claimant claimed against the Defendant as follows:
An order of the Honourable Court directing the Defendant to pay the Claimant the sum of [N8, 925,814.59] eight million, nine hundred and twenty five thousand, eight hundred and fourteen naira, fifty nine kobo only, being the balance of his severance/ex-gratia or resignation benefit from the month of January 2010 to April 2016 when the Claimant resigned from the Defendant.
An order of the Court directing the Defendant to pay the Claimant 27 per cent compound interest rate or in the alternative at the current banking interest rate in respect of the N8, 925,814.59 which is the outstanding balance of the Defendant’s indebtedness to the Claimant.
Award of the sum of [N500, 000.00] five hundred thousand naira only, being general damages for the Defendant’s breach of contractual obligation with the Claimant.
The Claimant filed alongside the originating summons a statement of claim, list of witnesses and documents and copies of the documents and sworn statement of the witnesses. Upon receipt of the processes, the Defendant entered appearance and filed its defence processes and counterclaim in opposition to the Claimant’s claim. The case came up on 13th October 2017 and was adjourned to 3rd November 2017 for trial. Trial could not commence at the instance of the Claimant. The case suffered several adjournments and was eventually set down for trial on 21st February 2018.
Trial commenced and was concluded on 21st February 2018. The Claimant called two witnesses, Mr. Abduwahab Abiri, CW1 and himself as CW2. Mr. Abduwahab Abiri adopted his statement on oath dated 24th January 2018 and was cross-examined. The Defendant tendered one exhibit through CW1 during cross examination, exhibit 1, CW1’s performance score for year 2014. The Claimant also adopted his statement on oath dated 16th February 2018 as his evidence and tendered 5 exhibits in support of his claim: exhibit 2, his promotion letter dated 1st October 2015; exhibit 3, the endorsed letter from the Claimant’s Solicitors to the Defendant dated 29th November 2017; exhibit 4, Claimant’s Solicitors’ demand letter to the Defendant dated 25th July 2017. Exhibit 5 is electronic mail notification to the Claimant and others of their promotion and attached list of promoted staff. Exhibit 6 is Claimant’s Solicitors’ letter to the Defendant for certification of exhibit 5. During cross examination, the Defendant tendered 3 documents through the CW2 marked exhibits 7, 7a and 8. Exhibits 7 and 7a are electronic mails to the Claimant dated 21st August 2015 and 1st March 2016 respectively informing him of his placement on Performance Improvement Plan [PIP]. Exhibit 8 is the Claimant’s performance score for 2015. The Defendant called one witness in proof of its defence and counterclaim. The Defence witness, Mr. Omotola Adeyemi, adopted his two statements on oath dated 20th February 2018 as his evidence in support of the defence and counterclaim and tendered 5 exhibits marked exhibits DW1, DW2, DW3, DW4 and DW5 respectively. Exhibit DW1 is computation of Claimant’s terminal benefits showing his alleged indebtedness. Exhibit DW2 is acceptance of Claimant’s resignation. Exhibit DW3 is internal memorandum dated 30th November 2015, titled policy on payment of ex-gratia. Exhibit DW4 is Defendant’s employee handbook and exhibit DW5 is Claimant’s statement of account. The Claimant, during cross examination of the defence witness, tendered a document through him, exhibit DW6, the Claimant’s letter of appointment.
The case was thereafter adjourned for adoption of final written addresses. By leave of Court granted on 11th April 2018 the parties regularized their final written addresses. The defence Counsel, Mr. Ademola, adopted his final written address dated 23rd March 2018 and reply on point of law dated 23rd March 2018 but filed on 11th April 2018 as his argument in support of the defence and counterclaim. Learned Counsel for the Claimant, Mr. Ewa, also adopted his final written address dated 9th April 2018 but filed on 11th April 2018 as his argument in support of the claim and defence to the counterclaim. The case was consequently set down for judgment.
CLAIMANT’S CASE
The Claimant’s case is that he was an Assistant Manager with the Defendant on a monthly salary of N342, 859.50 before his resignation on 28th April 2016. Prior to his employment by the Defendant, he was a staff of Inland Bank Nigeria Limited, which subsequently merged with other Banks to form FinBank Plc. FinBank Plc was acquired by the Defendant in 2010 and the Claimant was re-absorbed the Defendant. By letter dated 30th October 2012, [exhibit DW6] the Defendant offered the Claimant employment as Management Executive with effect from 30th October 2012, which offer was accepted on 2nd November 2012. The Claimant was promoted to the rank of Assistant Manager on 1st October 2015. On 28th April 2016, the Claimant was advised by the Defendant to resign and he did. The Defendant accepted his resignation by letter dated 31st May 2016, exhibit DW2. It is the Claimant’s case that after resignation, he was paid the sum of N265, 486.31 leaving a balance of N8, 925,814.59 made up of 3 months’ salary in lieu of notice, profit sharing for 2015 and 1st quarter of 2016, severance allowance/ex-gratia from January 2010 to April 2016, outstanding prorated leave allowance for January to April 2016 and tax refund for 2016. He disclaimed liability to the Defendant for the sum of N863, 765.56. CW1 in paragraph 9 of his written deposition testified that he was on performance improvement plan at the time of his forced resignation and was paid his severance/ex-gratia benefit; but under cross examination he said his performance score was 73.99% and 80.37% for H1 and H2 respectively.
DEFENDANT’S CASE
The Defendant denied any indebtedness to the Claimant. It is the Defendant’s case that the Claimant’s performance was below acceptable threshold of 70% in 2015. As a result, he was placed on performance improvement plan [PIP] and subsequently advised to resign. The Defendant contends that staff on PIP are not entitled to severance/ex-gratia payment. The Defendant disputed the claims for 3 months’ salary in lieu of notice, profit sharing for 2015 and 2016 as there was no communication to that effect and tax refund. In proof of its counterclaim, the Defendant testified that the Claimant having resigned his employment in April 2016 did not earn the yearly upfront paid in January 2016 and quarterly upfront paid in April 2016 in the sum of N863, 765.56. It stated that demands were made on the Claimant but he refused to pay and relied on exhibits DW1, DW3, DW5 and DW6.
SUBMISSION ON BEHALF OF THE DEFENDANT
The Defendant formulated four issues for determination in its final written address, namely:
Whether paragraphs 2, 5, 8[b], 8[e], 9, 16, 20, 21, and 22 in the further amended statement of defence as stated below were denied by the Claimant and if not, whether they are deemed to be admitted as true and correct?
Whether the Claimant has established his case by cogent, credible and compelling evidence thus entitling him to the reliefs claimed?
Whether the Defendant has established and proved its counter-claim by cogent, credible and compelling evidence thus entitling her to the reliefs claimed?
Whether the 27% compound interest rate or the current banking interest rate in respect of the N8, 925,814.59 is proved by the Claimant?
Arguing issue one, learned Counsel for the Defendant explained that the Claimant did not file a reply to paragraphs 2, 5, 8[b], 8[e], 9, 16, 20, 21, and 22 of the further amended statement of defence; and has, accordingly, admitted the facts contained therein as true. Continuing, he said that there was no denial of the facts anywhere by the Claimant and no evidence led at the trial to debunk them. Learned Counsel stated that the facts are the basis of the Defendant’s defence to the suit and having not been denied are deemed to have been admitted as true and thus to be acted upon by the Court. He cited and relied on the cases of NBC Plc v. Ubani [2014] 4 NWLR [pt.1398] 421 at 475, Michael Ebeinwe v. The State 7 NWLR [pt.1246] 402 at 416, Okike v. LPDC [2005] 15 NWLR [pt. 949] 471, Chief Ufikairo Monday Efet v. Independent National Electoral Commission & Ors. [2011] Vol. 202 LRCN 94 at 116, Nzeribe v. Dave Engr. Co. Ltd. [1994] 8 NWLR [pt. 361] 124 and Omorege v. Lawani [1980] 3-4 SC 108. He contended that DW1 was not cross examined on those facts and urged the Court to accept the facts as established and act on it.
Canvassing issue two learned Counsel explained that there is no iota of evidence adduced by the Claimant to prove any of his claims. He contended that the burden of proof is on the Claimant to justify the claim for 3 months’ salary in lieu of notice. It was further argued that no agreement was placed before the Court to show entitlement to this relief. He submitted that to be entitled to profit sharing, the Claimant must show communication from the Defendant to staff on profit sharing and the amount due to each staff. Learned Counsel explained that the acceptable threshold of the Defendant in collating performance of its staff is 70%, and it was the failure of the Claimant to meet up with this threshold that led to the advice to resign. Continuing, learned Counsel submitted that the Claimant was on performance improvement plan due to his low performance and as a result is not entitled to ex-gratia payment and referred to exhibits 7A, 7B [sic], DW3 and DW4. It was also argued that the Claimant is not entitled to tax refund as the tax deducted has been remitted to the government and this averment was not denied by the Claimant. He submitted that the Claimant has not discharged his evidential burden to entitle him to his claim and relied on Ngere v. Okuruket ‘XIV & Ors. [2015] All FWLR [pt.800] 1360 at 1375, Ohadugba v. Garba [2000] 14 NWLR [pt.687] 226 at 240, Unijos v. Ikegwuoha [2013] 9 NWLR [pt.1360] 478 at 497-498.
On issue three, it was argued that the Claimant did not file a defence to the counter-claim, but even if he filed; there was no evidence in rebuttal. He therefore submitted that the counterclaim is unchallenged. He explained that by the combined effect of exhibit DW5 and paragraphs 4 to 6 of the counter-claim, the Defendant paid N924, 000 upfront allowance to the Claimant on 22nd January 2016 and N474, 600 on 22nd April 2016, which sums had not been fully earned by the Claimant when he resigned in April 2016 and so refundable to the Defendant. It was further argued that contrary to paragraph 19 of the Claimant’s sworn statement, exhibit DW5 does not show any debit of N265, 486.34 in the Claimant’s account. He therefore submitted that the Defendant has discharged the burden placed on it to prove the counterclaim. He submitted further that the Claimant’s failure to adopt his statement on oath meant failure to lead evidence against the counter-claim; and that facts pleaded for which no evidence is led go to no issue. He relied on Anyaka v. Anyaka [2015] All FWLR [pt.799] 1150 at 1167, Omisore v. Aregbesola [2015] All FWLR [pt.813] 1673 at 1734 and Ibrahim v. Okutepa [2015] All FWLR [pt.785] 331 at 335. Learned Counsel referred to paragraph 3 of exhibit 1 [sic exhibit DW6], the letter of employment and contended that the Claimant by signing it accepted the terms and conditions contained in the staff handbook, exhibit DW4 which provides that any score from 0-79 is below expectation. He also referred to exhibits 7a and 7b [sic] and the cases of Ahmed v. C.B.N. [2015] All FWLR [pt.803] 1807 at 1826 and Ezechukwu v. Onwuka [2015] All FWLR [pt.824]148 at 163 and urged the Court to hold that the Defendant has proved its counterclaim.
On issue four, learned Counsel argued that there is no evidence before the Court to justify the 27% interest claimed and relied on CBN v. Beckitt Const. Ltd. [2011] 5 NWLR [pt.1240] 203 at 247-248. He therefore urged the Court to dismiss the claim and uphold the counterclaim.
SUBMISSION ON BEHALF OF THE CLAIMANT
The Claimant raised two issues for determination in his final written address, to wit:
Whether the Defendant has not failed to prove its counterclaim against the Claimant?
Whether the Defendant’s counterclaim will succeed in the face of the material contradictions in the evidence of the Defendant?
Arguing issue one, learned Counsel explained that the Defendant breached the procedure specified in the performance improvement plan and staff handbook relating to disengagement of staff. He submitted that “the naive assertion by the Defendant that the Claimant performed poorly by way of issuing him a [PIP] Performance Improvement Plan and not allowing the Claimant to answer or fill the form as stipulated on the form and the staff hand book before a decision to lay him off does not satisfy the requirements of fair hearing or natural justice.” He referred to the case of FCSC v. Laoye [1989] 2 NWLR [pt.106] 625. It was also argued that the Defendant breached exhibit DW3 by charging interest on the sum of N863, 765.56 from 31st May 2016. He submitted that the conduct of the Defendant constitutes gross violation of exhibit DW3 and having failed to explain why the conditions in exhibits 7 and DW3 were not met before the hurried disengagement of the Claimant urged the Court to resolve issue one in the Claimant’s favour.
On issue two, learned Counsel argued that there are material contradictions in the evidence presented by the Defendant as to the amount owed and as a result urged the Court to dismiss the claim. He cited and relied on Kayili v. Yilbuk [2015] 61 NSCQR 359.
REPLY ON POINT OF LAW
By way of reply on point of law, the Defendant contended that a party cannot raise a new ground of claim different from what is contained in his pleading. He argued that the issue of fair hearing was raised for the first time in the Claimant’s written address and was not pleaded and no evidence was led in proof. He submitted that a Court of law has no jurisdiction to grant what a party has not asked for and relied on Unijos v. Ikegwuoha [2013] 9 NWLR [pt.1360] 478 at 497-498. On issue two, he referred to Ekweozor v. Reg. Trustees S.A.C.N. [2014] 16 NWLR [pt. 1434] 433 at 475 and submitted that the Defendant’s witness did not make any contradictory statement as to its counter-claim. He argued that what the Defendant claimed, pleaded and led evidence on is the sum of N863, 765.56 which is the total indebtedness of the Claimant to the Defendant.
COURT’S DECISION
I have considered all the processes filed in this suit and the submissions of learned Counsel for the parties. Before addressing the merit of this case, let me make some clarifications. First, the Claimant filed a defence to the counterclaim and an accompanying witness’ deposition. Curiously, at the trial, the Claimant failed to adopt his statement on oath in defence of the counterclaim. As rightly submitted by learned Counsel for the Defendant, averments in pleadings are not evidence and the only way a witness’ sworn deposition can metamorphose into evidence is by being adopted in Court. See the cases of Anyaka v. Anyaka [2015] All FWLR [pt.799] 1150 at 1167 and Ibrahim v. Okutepa [2015] All FWLR [pt.785] 331 at 335 cited by learned Counsel for the Defendant. Accordingly, the Claimant is deemed to have abandoned the defence. See the case of Senator Usman Jibrin Wowo & Anor. v. Senator Adamu Muhammad Sidi-Ali & Ors. [2009] LPELR-5106[CA] at page 63, where Aboki, JCA, held:
“Pleadings in themselves do not constitute evidence. Mere averments without evidence in proof of facts pleaded goes [sic] to no issue and such averment is deemed abandoned and would be struck out by the Court unless it is admitted by the adverse party.”
The Claimant’s defence to the counterclaim dated 14th February 2018 and the accompanying witness deposition dated 16th February 2018 having been abandoned are hereby struck out.
The second issue deals with the propriety of adopting the witness’ deposition of CW1 attached to the Claimant’s amended statement of facts dated 24th January 2018 which was further amended by leave of Court on 21st February 2018. This, to my mind, is irregular and inappropriate. It is the law that an amendment of a pleading relates back to the time such pleading was filed. The amended statement of facts dated 24th January 2018 is superseded by the further amended statement of facts. Consequently, CW1’s statement on oath dated 24th January 2018 has been overridden by the further amended statement of facts. See the cases of Joseph Ebeilubhubi Oseyomon & Anor. v. S. D. Ojo [1993] 6 NWLR [pt.299] 344 at 361 and Nigerian Telecommunication Ltd. v. Dr. R. G. M. Ikpi [2007] LPELR-4617[CA] at page 10. In the latter case, Rhodes-Vivour, JCA [as he then was] held that evidence led on a statement of claim subsequently amended is no longer relevant as it does not define the issues to be tried in the suit. CW1’s statement on oath and evidence adduced through him having been overridden by the further amended statement of facts are incompetent and hereby expunged from the records.
The third issue was raised by learned Counsel for the Defendant in paragraph 7.09 of his final written address to the effect that contrary to paragraph 19 [sic paragraph 18] of the Claimant’s sworn statement, exhibit DW5 does not show any debit of N265, 486.34 in the Claimant’s account. While it is true that exhibit DW5 does not show a debit of N265, 486.34, this amount which was stated in exhibit DW1 as the Claimant’s terminal benefit was not credited to his account. In exhibit DW1, the amount was deducted from his alleged indebtedness to the Defendant leaving a balance of N863, 765.56. In the circumstance, paragraph 18 of the Claimant’s additional re-sworn statement is correct and cannot be impugned in any way.
Having said this, I will adopt the issues formulated by learned Counsel for the Defendant, with a slight variation, in the determination of this suit, to wit:
Whether the Claimant is deemed to have admitted paragraphs 2, 5, 8[b], 8[e], 9, 16, 20, 21, and 22 of the further amended statement of defence?
Whether the Claimant has proved his case on a balance of probability to entitle him to the reliefs claimed?
Whether the Defendant has proved its counterclaim to entitle it to the reliefs claimed?
The law is settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24, Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1 and Rev. Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. Having regard to the facts of this case, it is plain to me that this is an ordinary master and servant relationship regulated by the letter of employment, exhibit DW6, and Defendant’s Staff Handbook, exhibit DW4 as modified by exhibit DW3.
Arguing issue one learned Counsel for the Defendant contended that the Claimant did not file a reply to paragraphs 2, 5, 8[b], 8[e], 9, 16, 20, 21, and 22 of the further amended statement of defence or lead evidence to disprove it and has, accordingly, admitted the facts contained therein as true. Learned Counsel also argued that the facts form the basis of the Defendant’s defence to the suit and having not been denied are deemed to have been admitted as true and thus to be acted upon by the Court. Learned Counsel for the Claimant did not respond to this submission in his final written address. The law is settled that every material allegation of fact in a pleading, if not denied specifically or by necessary implication, must be taken as admitted and established. See the cases of Ben C. Emodi & Ors. v. Mrs. Patricia C. Emodi & Ors. [2013] LPELR-21221[CA] at page 24 and Alhaji Liadi Musari & Ors. v. Madam Afusat Bisiriyu & Ors. [2014] LPELR-22523[CA] at page 21. However, I have looked at the paragraphs and I am of the view that paragraphs 2, 16, 20, 21 and 22 of the further amended statement of defence merely joined issues with the Claimant on his statement of facts and are not material to warrant a reply. On the other hand, paragraphs 5, 8[b], 8[e] and 9 of the further amended statement of defence made weighty allegations requiring a response from the Claimant. These paragraphs are reproduced in paragraphs 6, 9[b], 9[e] and 10 of the Defendant’s witness’ statement on oath. The thrust of the evidence is that the Claimant was placed on performance improvement plan due to his low performance and as a result not entitled to ex-gratia payment. Also, that there was no sharing of profits for 2015 and first quarter of 2016 and the Claimant is not entitled to a tax refund as it has been remitted to the government. These facts also form the fulcrum of the Claimant’s claims and the Claimant ought to have challenged them, but he did not. In the circumstance, the Claimant is deemed to have accepted the correctness of these averments and I so find and hold.
On issue two which is, whether the Claimant has proved his case on a balance of probability to entitle him to the reliefs claimed?, learned Counsel for the Defendant submitted that there is no iota of evidence in proof of the claim. Again, learned Counsel for the Claimant did not respond to this issue and did not urge anything on the Court in support of the claim. I have reviewed the Claimant’s additional re-sworn statement dated 16th February 2018 and the exhibits tendered. The only material evidence relevant to his claim are in paragraphs 6, 10, 12, 12[sic], 13 and 22. The summary of the evidence is that his salary upon appointment was N185, 985.79 and he was subsequently promoted and his salary increased to N342, 859.50. The Claimant also testified that the Defendant owed him a total sum of N8, 925, 814.59 made up of 3 months’ salary in lieu of notice, 2015 and first quarter of 2016 financial year profit sharing, ex-gratia benefit from January 2010 to April 2016 and tax refund for 2016. As held above, these facts were successfully controverted by the Defendant and the Claimant did not lead any further evidence to establish it. In addition, there was no documentary evidence tendered to show his entitlement to the reliefs claimed. On the other hand, the Defendant tendered exhibits 7, 7a, 8, DW1, DW2, DW3, DW4 and DW5. Exhibits DW2 and DW1 show the Claimant’s terminal benefit is N265, 486.34. Exhibits 7, 7a and 8 show that the Claimant was on performance improvement plan while exhibit DW3 show that staff on performance improvement plan are not entitled to ex-gratia payments. This evidence was not challenged in any way by the Claimant. Furthermore, the Defendant’s witness testified that no profit was shared for year 2015 and first quarter of 2016 and that the tax deducted from the Claimant had been remitted to the government. Again, this evidence was not challenged. In fact, learned Counsel for the Claimant did not address these issues in his final written address which gives the impression that the Claimant has either capitulated or he no longer believes in his claim. There is no proof of the 27% interest claim or breach of contract by the Defendant rendering it liable in damages to the Claimant. Section 134 of the Evidence Act 2011 provides that the burden of proof shall be discharged on the balance of probabilities in all civil proceedings. Placing the evidence of the parties on the imaginary scale, the evidence of the Defendant weighs more and is more probable. In the circumstance, I find and hold that the Claimant has not discharged the evidential burden thrust on him. I agree with learned Counsel for the Defendant that the Claimant has not proved his claim. Issue two is resolved in favour of the Defendant. The Claimant’s claims fail in its entirety and are hereby dismissed.
This leads me to issue three: Whether the Defendant has proved its counterclaim to entitle it to the reliefs claimed? The Defendant counterclaimed against the Claimant for the sum of N863, 765.56 being unearned upfront and quarterly allowance paid to the Claimant, interest at the rate of 19% from April 2016 till date and N750, 000 being the cost of this suit. Learned Counsel for the Defendant argued that the Claimant did not file a defence to the counter-claim, but even if he filed; there was no evidence in rebuttal. He submitted that the counterclaim is unchallenged and by the combined effect of exhibit DW5 and paragraphs 4 to 6 of the counter-claim, the Defendant paid N924, 000 upfront allowance to the Claimant on 22nd January 2016 and N474, 600 on 22nd April 2016, which sums had not been fully earned by the Claimant when he resigned in April 2016 and so refundable to the Defendant. In response, learned Counsel for the Claimant submitted that the Defendant breached the procedure specified in the performance improvement plan and staff handbook relating to disengagement of staff. He contended that “the naive assertion by the Defendant that the Claimant performed poorly by way of issuing him a [PIP] Performance Improvement Plan and not allowing the Claimant to answer or fill the form as stipulated on the form and the staff hand book before a decision to lay him off does not satisfy the requirements of fair hearing or natural justice.” It was also argued that the Defendant breached exhibit DW3 by charging interest on the sum of N863, 765.56 from 31st May 2016. He contended that the conduct of the Defendant constitutes gross violation of exhibit DW3. It was further argued that there are material contradictions in the evidence presented by the Defendant as to the amount owed and as a result urged the Court to dismiss the claim. First, let me say that there is no contradiction in the evidence of DW1. The sum claimed is N863, 765.56, the evidence led was in proof of the amount claimed. The entry on 18th May 2016 page 3 of exhibit DW5 shows net indebtedness is N863, 765.56. Learned Counsel’s submission therefore is misconceived. On the issue of breach of fair hearing, the law is trite that a party must be consistent with the case he presents in Court. See the cases of Sunday Ologun v. Johnson Fatayo [2012] LPELR-9298 [CA] at page 20 and Aisha Jummai Alahassan & Anor. v. Mr. Darius Dickson Ishaku & Ors. [2016] LPELR-40083[SC] at page 98. The Claimant did not raise the issue of fair hearing in his pleading or evidence before this Court. It is my firm view that he cannot do so now. At any rate, he did not lead any evidence in his defence and, as I have held earlier, the defence is deemed abandoned and was consequently struck out.
This notwithstanding, the burden of proof is on the Defendant to establish the counterclaim on a balance of probability. In paragraphs 18 and 25 of CW2’s additional re-sworn statement, he testified that he is not indebted to the Defendant for the sum of N863, 765.56. There is no evidence of any loan obtained by the Claimant. The Defendant’s contention is that the sum of N863, 765.56 is the balance of upfront payments made to the Claimant which had not been earned before his resignation on 28th April 2016. The upfront payment is a form of enhancement allowance paid to the Claimant. There is no evidence in proof of the claim for interest and N750, 000 cost. Both parties are agreed that the Defendant counseled the Claimant to resign. In other words, the Claimant’s employment was constructively terminated, which is the reason for payment of salary in lieu of notice, see exhibit DW1. The question then is should a Court of equity allow the Defendant to recover this amount having frustrated the performance of the contract of employment? I do not think so. A similar situation arose in the case of Mr. Olusola Oginni v. Proserve Instrumentation [Nig.] Limited, Suit no. NICN/LA/447/2016 delivered on 17th August 2017 by the Lagos Judicial Division of this Court. Hon. Justice Amadi held, on page 11 of the judgment, thus:
“I shall now answer the question of whether the Defendant can recover the unearned or unutilized housing allowance paid to the Claimant. The payment here falls into the category of enhancement allowance or payment. There is now the introduction in labour and industrial relation jurisprudence the concept or doctrine of non-recoverability of enhancement allowances or facilities…. The doctrine simply put is where an employer advances a facility in any manner or form aimed at the enhancement of the status and or productivity of the employee which facility is tied to the employee’s employment in that repayment is by direct utilization of his services or deductions from his salary and other emoluments, but before the full utilization or full repayment of the facility advanced, the employee’s employment was unilaterally terminated by the employer, on the ground that the employee’s services were no longer required, the employer is estopped from recovering the balance remaining unpaid on the facility, in which case, the employee will be discharged from further obligation under the advanced facility. The reason here being the fact that the repayment has been frustrated and the contract rescinded.”
I entirely agree with the reasoning of his Lordship and adopt it in this case. I therefore hold that the Defendant is estopped from recovering the sum of N863, 765.56 from the Claimant being the balance of upfront payment made to him in 2016 before his resignation on 28th April 2016; for the reason that the Defendant counseled the Claimant to resign at the time he did. By so doing, the Defendant frustrated the full utilization of the upfront payment and denied the Claimant of resources to repay it. A Court of equity will not allow a party to benefit from his wrongful action. See the case of Oceanic Bank International Plc v. Broken Agro Allied Industries Limited [2008] LPELR-4671[CA] at page 36. In addition, reliefs 2 and 3 have not been proved. Accordingly, the counterclaim fails and it is hereby dismissed.
For the avoidance of doubt, the Claimant’s case fails in its entirety and it is hereby dismissed. Also, the counterclaim fails and it is hereby dismissed. There shall be no order as to costs. Judgment is entered accordingly.
………………………………………….
IKECHI GERALD NWENEKA
JUDGE
2/5/18
