Mr. Edward Desmond Hiyk -VS- Jinziang Quarry Co. Ltd & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 20th June 2018 SUIT NO. NICN/EN/65/2015

BETWEEN

EDWARD DESMOND HIYK … CLAIMANT

AND

JINZIANG QUARRY CO. LTD. … DEFENDANTS
MR. XIANG BOJUN
MRS. GAO JINMEI

REPRESENTATION:

Okoi James Esq. for the Claimant

Babatunde Olaluwoye Esq. for the Defendants.

JUDGMENT

The Claimant by a Complaint filed on 14th May 2015 claimed against the Defendants severally and jointly as follows:

A declaration that the Claimant is entitled to the refund of the sum of N306, 000 [three hundred and six thousand naira] only being the cost of the six [6] industrial tyres bought by the Claimant with his personal money.

A declaration that the termination of the Claimant’s employment by the 1st Defendant under the instigation of the 2nd and 3rd Defendants is illegal and wrongful.

The Claimant is entitled to the arrears of the monthly allowance of N250, 000 [two hundred and fifty thousand naira] only from the month of August 2013 to January 2015 in accordance with his letter of appointment.

The Claimant is entitled to two percent [2%] of the total daily sales of the quarry products in accordance with the terms of his appointment from October 2014 to January 2015.

The Claimant is entitled to the two percent [2%] of the daily sales of the quarry products and the monthly allowance of N250, 000 [two hundred and fifty thousand naira] only from the month of February 2015 to August 2019 for the loss of income in the aforesaid period.
A declaration that the Claimant is entitled to 30% of the 2% of the daily sales which is in lieu of the salary for five years being the duration the quarry lease will last as the Claimant’s severance benefits.

A declaration that the Claimant is entitled for [sic] N50, 000,000 [fifty million naira] only as general damages for wrongful termination of appointment.

The Claimant filed with the complaint a statement of facts, list of witness, statement on oath of the Claimant, list of documents and copies of the documents. Upon receipt of the processes, the Defendants entered an appearance and subsequently filed their joint statement of defence and counterclaim dated 26th October 2015. The Claimant filed his reply to the statement of defence and defence to the counterclaim, additional list of witnesses and witness depositions on 16th March 2016. By leave of Court granted on 7th November 2017, the Claimant substituted his additional statement on oath filed on 2nd May 2017 with his previous statement on oath dated 16th March 2016. By leave of Court granted on 24th January 2018, the Defendants substituted their witness and filed fresh lists of witness and documents. Trial commenced on 24th January 2018 and was concluded on 7th March 2018.

The Claimant testified for himself as CW1. He adopted his statements on oath dated 14th May 2015 and 2nd May 2017 and tendered 20 exhibits marked exhibits 1 to 20 and was cross-examined. The Claimant’s second witness, Onwe Daniel Onwe, adopted his statement on oath dated 16th March 2016 and tendered 3 exhibits marked exhibits 21, 22 and 23 and he was cross-examined. The Defendants’ witness, Mr. Jaleel Olayinka Haleem, adopted his statement on oath dated 18th January 2018 and tendered 8 exhibits marked exhibits DW1A to DW1H and he was cross-examined. The case was thereafter adjourned for adoption of final written addresses.

On 7th May 2018 the Defendants’ Counsel, Mr. Olaluwoye, adopted his final written address dated 27th March 2018 and reply on point of law dated 30th April 2018 and urged the Court to grant the counterclaim in part. The Claimant’s Counsel, Mr. James, adopted his final written address dated 17th April 2018 as his submission in support of the claim and urged the Court to grant the reliefs of the Claimant. The case was consequently set down for judgment.

CLAIMANT’S CASE

The Claimant’s case is that he was an employee of the 1st Defendant by virtue of letter dated 5th August 2013, exhibit 1, until 11th February 2015 when he was asked to stop work because his service was no longer needed. As the Manager [Corporate], he was entitled to N250, 000 monthly allowance, accommodation and a vehicle. He was issued a staff identity card and promised 2% of the daily sales which is assessed at N57, 000 per day. He stated that due to non-payment of his monthly allowance he borrowed a total sum of N900, 000 from the 1st Defendant which was to be deducted from his monthly allowance. Upon termination of his appointment, the Defendants withdrew the official vehicle and accommodation and refused to pay his allowances and benefits, hence this action.

DEFENDANTS’ CASE

The Defendants’ case is that the Claimant was not an employee of the 1st Defendant but a facilitator/agent which relationship ended at Ugwulabo Obiulo Lekwesi Village. As a facilitator/agent the Claimant was entitled to a monthly allowance of N250, 000 which sum was fully settled at Ugwulabo Obiulo Lekwesi Village; and the agreement did not extend to Ezillo quarry site. It is the Defendants’ case that the Claimant voluntarily remained with them at the Ezillo quarry site where he carried on his private business until he stopped in February 2015. The Defendants denied any agreement to pay 2% of the daily sales of quarry products to the Claimant. The Defendants also stated that the Claimant owes them the sum of N900, 000 borrowed on several occasions and misappropriated the sum of N14, 250,000 hence their counterclaim.

SUBMISSION ON BEHALF OF THE DEFENDANTS

The Defendants formulated five issues for determination in their final written address to wit:

Whether the Claimant has established his claims as to be entitled to the reliefs sought before this Court in this case?

Whether a pre-incorporation contract alleged to have been created by the 2nd and 3rd Defendants on behalf of the 1st Defendant can be binding on the 1st Defendant?

Whether the Court has jurisdiction over a party whose name on the record is different from his birth certificate without any proper change of name?

Whether the Defendants/counterclaimants needed further proof of Claimant’s admission of liability to the Defendants of a loan of N900, 000 [nine hundred thousand naira]?

Whether the Claimant’s employment was wrongfully terminated as claimed?

Arguing issue one, learned Counsel for the Defendants submitted that the burden of proof lies on the Claimant which must be discharged on a preponderance of evidence and relied on sections 131[1] and 138 of the Evidence Act 2011 and First Bank of Nigeria Plc v. Bam [2011] All FWLR [pt.599] 1175 at 1188-1189. On the claim for N306, 000 learned Counsel argued that there is no connection between exhibit 4 and the Defendants. He explained that the claim for 2% of daily sales is in the nature of special damages which must be specially pleaded and proved. He submitted that the claim is imprecise, vague and incapable of being ascertained and the evidence of daily sale was not given.

On issue two, he explained that considering exhibits 1 and DW1 the 1st Defendant was not in existence when it was made and as a result exhibit 1 is not binding on it having not been ratified after incorporation and relied on section 72[1] of the Companies and Allied Matters Act, 1990 and Garba v. Sheba International [Nigeria] Limited [2002] 1 NWLR [pt.748] 372 at 401 and Byuan Resources Ltd. v. Minister of FCT & Ors. [2016] LPELR-41494[CA] pages 34-35. He argued that exhibit 21 is unreliable and worthless because it was not signed by the Defendants and the Claimant and relied on Brewtech Nigeria Limited v. Folageshin Akinnawo & Ors. [2016] LPELR-40094[CA], Garuba v. Kwara Investment Co. Ltd & 2 Ors. [2005] 5 NWLR [pt.917] 160 and Gbadamosi & Anor. v. Biala & Ors. [2014] LPELR-24389[CA] pages 37-38. It was submitted that section 72[2] of the Companies and Allied Matters Act, 1990 does not avail the Claimant as the 2nd and 3rd Defendants denied exhibit 1.

On issue three, it was contended that the Claimant before this Court being a non-existing person has no legal standing. It was also argued that a birth certificate is a conclusive proof of the name and birth of a person in the absence of evidence of change of name; and that the Claimant is not a legal person. He submitted that the explanation in paragraph 4 of the reply to Defendants’ joint statement of defence and counterclaim is lame and weak as oral evidence cannot alter a written document, exhibits 16 and 17 and relied on section 128 Evidence Act 2011 and Ebem & Anor. v. Nseyem [2016] LPELR-40122 [CA] pages 20-21.

On issue four, learned Counsel submitted that what is admitted needs no further proof and relied on Ihabe v. Zakari [2012] 12 NWLR 517 CA pg 535. He referred to paragraphs 31, 59 and 61 of the Claimant’s additional statement on oath dated 16th March 2015 and submitted that the Court has power to grant a claim where it is admitted by the other party and relied on section 123 of the Evidence Act 2011 and Bendel Pilgrim Welfare Board v. Arawo [1995] 1 NWLR [pt.369] and urged the Court to enter judgment for the sum of N900, 000.

Arguing issue five learned Counsel explained that the Claimant was never an employee of the 1st Defendant and as a result there was no employment to be terminated. He submitted that the Claimant has the primary duty of placing before the Court the terms and conditions of his contract of employment and prove in what manner it was breached and had failed to do so and relied on Eze v. N.A.W.A & Ors. [2016] LPELR-41453[CA] and FMC Ido Ekiti v. Alabi [2012] 2 NWLR [pt.1285] 411.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant also raised five issues for determination, namely:

Whether the Claimant have [sic] the locus standi to bring this action before this Honourable Court?

Whether from the supervening circumstances and evidence adduced, the employment of the Claimant was wrongfully terminated by the 1st Defendant?

Whether the 1st Defendant can resile from its obligations in a contract which it has benefited because it never followed the requirement of the Law?

Whether the Claimant has adduced enough evidence to proof his claim to be entitled to the reliefs sought?

Whether the Defendants are entitled to their counter-claim?

On issue one, learned Counsel submitted that for a Claimant to have locus standi there must be a subject matter in dispute and the Claimant has sufficient interest in the dispute. He argued that the submission of the Defendants that the Claimant is a non-existing person is erroneous as they are probating and reprobating at the same time and referred to paragraphs 4 and 6 of DW1’s statement on oath. He contended that exhibits 16 and 17 were tendered to buttress the fact that the Claimant was an employee of the 1st Defendant and relied on Ojoh v. Kamalu [2006] 6 WRN 110 at 121.

On issue two, he submitted that by exhibit 1, the contract of employment between the Claimant and the Defendant can be terminated only at the end of any quarry lease and quarry lease refers to exhibits 3 and 9 which stipulate a duration of 5 years each. He referred to paragraphs 5, 13 and 14 of DW1’s statement on oath and contended that the evidence is not reliable because he had no personal knowledge of the facts. He submitted that it is only an employee of a company who has personal knowledge by virtue of his office that can give evidence of a transaction on behalf of the company and relied on Interdrill Nig. Ltd. v. UBA [2017] 70 NSCQR [pt.2] 616 at 622. It was also submitted that the evidence of DW1 is hearsay and should be discountenanced and relied on section 37[a] of the Evidence Act 2011 and the cases of F. R. N. v. Usman & Anor. [2012] 3 MJSC [pt.1] 25 at 32 and Ikpeazu v. Alex Otti [2016] 65 NSCQR pt.3 1565 at 1582. It was further submitted that the Court can compare the signature admitted by the contesting party and referred to Amadi v. Orioakwe [2006] 3 WRN 1 at 5-6. Learned Counsel explained the incidents of employment to include issuance of ID card, filing of monthly expatriates returns and being sued along with the 1st Defendant and referred to paragraphs 41, 42, 43, 44, 45, 46 and 47 of Claimant’s additional statement on oath dated 2nd May 2017 and exhibits 6, 14, 18 and 19. He submitted that this evidence was not challenged including exhibits 15 and 19 and therefore deemed admitted and relied on section 123 of the Evidence Act and Bendel Pilgrim Welfare Board v. Arawo [1995] 1 NWLR [pt.369] and urged the Court to hold that the Claimant has established that he is an employee of the 1st Defendant and that the contract was breached.

Arguing issue three learned Counsel explained that prior to 5th August 2013, the 1st Defendant was presented as an existing company and referred to exhibit 9 and section 169 of the Evidence Act 2011 and A.G. Nassarawa State v. A.G. Plateau State [2010] 10 NWLR [pt.1309] 419 at 470 and submitted that the Defendants cannot now deny the truth of what they caused the Claimant to believe. It was also contended that having obtained benefit from the Claimant pursuant to exhibit 1, the 1st Defendant cannot renege on its obligations under exhibit 1 and relied on Kwajaffa v. Bank of the North [2004] 18 NSCQR 543 at 548. It was also submitted that the 1st Defendant cannot benefit from its own illegality and relied on Are v. Saliu [2005] 37 WRN 157 and Welco Ind. V. Nwanyawu Nig. Ltd [2005] 32 WRN 133 at 143. It was further submitted that a party relying on the provisions of a statute as a defence should plead in his statement of defence the facts relied upon bringing the transaction within the ambit of the statute and referred to I. M. N. Ltd v. Pegofor Ind. Ltd [2005] 39 WRN 1 at 8-9 and urged the Court to discountenance learned Counsel’s on section 72 of Companies and Allied Matters Act.

On issue four learned Counsel submitted that the Claimant has proved his case to entitle him to the declaratory reliefs as claimed and referred to Central Bank of Nigeria v. Jacob Oladele Amao & Ors. [2012] 2 NWLR [pt.1219] 271 at 280. On exhibit 4, learned Counsel referred the Court to paragraph 51 of the 2nd Defendant’s statement on oath and submitted that the Court is entitled to look at documents in its file to confirm admission of the 2nd Defendant and relied on Unazuike v. A. G. Federation [2007] 14 112 at 117. It was also submitted that production of receipt is sufficient proof of special damages without oral evidence and relied on U. T. B. Nig. v. Ozoemena [2007] 13 WRN 12 at 138.

Arguing issue five learned Counsel submitted that the Defendants have not proved their counterclaim. He argued that the Claimant’s admission that he borrowed N900, 000 does not create an estoppel and is not conclusive evidence against him and relied on N.B.C.I. v. I. G. N. Ltd. [2005] 9 WRN 1 at 31. It was contended that the Claimant explained the basis of the admission and that the loan was given against his allowance and submitted that it is not all admissions against interest that vindicates the other party and relied on Odutola v. Paper Sack Nig. Ltd. [2007] 7 WRN 1 at 9 and urged the Court to resolve the issue in the Claimant’s favour.

REPLY ON POINT OF LAW

Learned Counsel for the Defendants submitted that only juristic persons can sue and be sued and the Claimant is unknown to law and referred to Hitech Construction Co. Ltd. v. Ude & Ors. [2016] LPELR-40066[CA]. It was contended that the case of Interdrill Nig. Ltd. & Anor. v. UBA Plc [2017] LPELR-41907[SC] supports the Defendants’ case and the evidence of the Defendants’ witness is admissible. It was also argued that A.G. Nassarawa State v. A.G. Plateau State [supra] did not consider section 72 of the Companies and Allied Matters Act and therefore not relevant to the fact in issue. He submitted that for a company to ratify a transaction entered into prior to its incorporation there must be an authority to that effect and referred to Byuan Resources Ltd v. Minister of FCT & Ors. [2016] LPELR-41494[CA]. On issue four, he referred to Federal Capital City Development Authority & Anor. v. MTN Nigeria Communication Ltd. & Anor. [2016] LPELR-41248[CA] and submitted that the Claimant’s entitlements in exhibit 1 are in form of special damages which must be particularized and proved and this was not done. It was further submitted that relief [i] is uncertain and unenforceable and referred to Alforine Ltd v. A.G Federation [1996] 9 NWLR [pt.475] 634

COURT’S DECISION

I have considered the processes filed in this suit and the submissions of learned Counsel for the parties. From the facts, the issues for determination in this case are:

Whether the Claimant has proved his case to entitle him to the reliefs sought or any of them?

Whether the Defendants have proved their counterclaim?

The law is settled that in civil cases it is incumbent on a party who is claiming a relief against his opponent to prove what he asserts; and unless he provides good and credible evidence to discharge the burden of proof placed on him by law, his case is bound to fail. He who asserts must prove. See sections 131[1] and 133[1] of the Evidence Act 2011 and the case of Attorney-General of Bayelsa State v. Attorney-General of Rivers State [2006] LPELR-615 [SC] at page 63. Before going into the merits of the case, I would like to make a few comments. Learned Counsel for the Claimant submitted that it is only an employee of a company who has personal knowledge by virtue of his office that can give evidence of a transaction on behalf of the company and relied on Interdrill Nig. Ltd. v. UBA [supra]. On his part, learned Counsel for the Defendants contended that the case of Interdrill Nig. Ltd. & Anor. v. UBA Plc [supra] supports the Defendants’ case and the evidence of the Defendants’ witness is admissible. I have read the case of Interdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [2017] 25 WRN 1 at 21-22. In a unanimous decision, the Supreme Court held that the Respondent’s sole witness, who was the business officer and whose duties included managing the relationship between the Appellant and the Respondent Bank, was a competent and compellable witness. Rhodes-Vivour, J.S.C., puts the law on this vexed issue beyond peradventure. He held thus:

“A company is an artificial person. Decisions for, and actions by it are taken by natural persons such as the board of directors, individual director, employees and agents. That is to say the company acts through these people. Officers of a company involved in transaction involving the company and some other party are competent and compellable witnesses in a court of law if and when the transaction becomes subject of litigation. This is also the case where an officer is employed by the company after the transaction was concluded, provided such an officer is fully briefed and documents relevant to the transaction are made available to him by his employers.” [Underlining mine].

Clearly, therefore, an employee of a company can give evidence on behalf of the company even though he was not in the company when the transaction was concluded. There is, however, a caveat, he must be fully briefed and the documents relevant to the transaction must be made available to him. In the absence of these, little weight may be attached to his evidence. See also Alhaji Aminu Ishola v. Societe Generale Bank [Nig.] Limited [1997] LPELR-1547[SC] at page 26, where Iguh, J.S.C., held:

“…it cannot be over-emphasised that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence.”

The next is whether the Claimant is a person known to law. Learned Counsel for the Defendants argued this point extensively in his issue three and reply on point of law. He contended that the Claimant on record is Edward Desmond Hiyk, while the names on exhibits 6 [certified true copy of Suit no. HU/11M/2014], 16 [National identity card] and 17 [his birth certificate] bear different names ostensibly of the Claimant. He contended that a birth certificate is a conclusive proof of the name and birth of a person in the absence of any evidence of change of name; and submitted that the Claimant being a non-existing person has no legal standing to sue and relied onHitech Construction Co. Ltd. v. Ude & Ors. [2016] LPELR-40066[CA]. On his part, learned Counsel for the Claimant argued that the identity of the Claimant is not in issue because the Defendants have been dealing with Edward Desmond Hiyk over the years and did not at any time question his identity; and that exhibits 5, 6, 16 and 17 were tendered to buttress the fact that the Claimant was an employee of the 1st Defendant and referred to paragraphs 3 and 6 of DW1’s statement on oath and Ojoh v. Kamalu [2006] 6 WRN 110 at 121. There is no doubt that the Court can only assume jurisdiction over juristic persons. See Hitech Construction Company Limited v. Jude Ude & Ors. [2016] LPELR-40066[CA] at pages 12-13. A suit is about determination of the legal rights and obligations of parties in any given situation; and only natural and artificial persons in whom the rights and obligations inure are capable of being proper parties to a suit. Essentially, therefore, there are two broad categories of persons who can sue and be sued, natural and artificial persons. See Emmanuel Okonkwo & Anor. v. Augustine Ekwebi & 5 Ors. [2016] LPELR-41059[CA] at pages 6-7 and Chief Gani Fawehinmi v. Nigerian Bar Association & 4 Ors. [No.2] [1989] LPELR-1259[SC] at page 23. There is no doubt that the Claimant is a natural person and an adult of sound mind capable of suing and being sued in his name. There is also no doubt that the Defendants know the Claimant as Edward Desmond Hiyk [see paragraphs 3, 5, 6, 8 and 9 of DW1’s statement on oath]; and have related with him as such for about three years and are counterclaiming against him. They could not have dealt with a non-existing person or be counterclaiming against a non-existing person. Learned Counsel’s submission is therefore preposterous and misconceived. In my humble view the fact that exhibits 5, 6, 16 and 17 show the Claimant as bearing other names does not detract or derogate from his legal capacity as a natural person of full age capable of suing and being sued. What is important is that the Defendants know him by the name he is suing them with and that there is a privity of contract between them. It must be noted that while a birth certificate is proof of the name and date of birth of the person stated therein, it is not the only means of proof. A person’s national identity card and international passport are other means of proving his name and date of birth.

The third issue is whether the Claimant was an employee of the 1st Defendant. The Claimant relied on exhibit 1 and the duties he performed in furtherance thereof in proof of an employer and employee relationship. Learned Counsel for the Defendants contended that the Claimant was not a staff of the 1st Defendant and exhibit 1 constitutes a pre-incorporation contract which is not binding on the 1st Defendant unless ratified and relied on section 72[1] of the Companies and Allied Matters Act 1990, CAP. C20 Laws of the Federation of Nigeria 2010 [“Companies and Allied Matters Act”]. It was also argued that section 72[2] of the Companies and Allied Matters Act does not avail the Claimant because the 2nd and 3rd Defendants have denied making exhibit 1. The Claimant argued that having led him to believe that the 1st Defendant was an incorporated company [exhibits 3-3F and 1], and taken benefit from the relationship, the 1st Defendant cannot resile from its obligations on the ground of illegality. Indisputably, exhibit 1 was executed before registration of the 1st Defendant. Section 72[1] of the Companies and Allied Matters Act is a codification of the common law position on pre-incorporation contracts. It will be necessary at this point to set out the section in this judgment.

“72. Pre-incorporation contracts

[1] Any contract or other transaction purporting to be entered into by the company or by any person on behalf of the company prior to its formation may be ratified by the company after its formation and thereupon the company shall become bound by and entitled to the benefit thereof as if it has been in existence at the date of such contract or other transaction and had been a party thereto.

[2] Prior to ratification by the company, the person who purported to act in the name of or on behalf of the company shall, in the absence of express agreement to the contrary, be personally bound by the contract or other transaction and entitled to the benefit thereof.”

This provision is clear and must be given its ordinary meaning. A pre-incorporation contract must be ratified by the company to be binding on it. See Alhaji [Dr.] Bawa Garba & Anor. v. Sheba International [Nig.] Ltd. [2002] 1 NWLR [pt.748] 372 at 401. The phrase “as if” used in subsection 1 is instructive. It means that the company is deemed to be in existence at the time the contract was made by operation of law. This is so because ratification implies an existing principal on whose behalf the contract was made. Consequently, the cases of Kelner v. Baxter [1866] L. R. 2 C.P. 174 and Transbridge Company Limited v. Survey International Limited [1986] LPELR-3263[SC] at pages 43-44 in so far as they decided that pre-incorporation contracts cannot be ratified by the company are no longer good law. See also Reform of the Law on Promoters liability for pre-incorporation contracts: An Anglo-Nigerian Comparison by P. Ehi Oshio published in Modern Practice Journal of Finance and Investment Law, Vol. 8 No. 3-4 page 453. In Savannah Bank of Nig. Ltd. & Anor. v. Ammel O. Ajilo & Anor. [1989] 1 SC [pt.11] 90 at 138, Karibi-Whyte, J.S.C., explained this legal concept “as if” thus:

“In ordinary language which is reflected in legislation, when a thing is deemed to be something, it is not meant to be the thing it is deemed to be. It is an admission that it is not that other thing but should be regarded as that thing. I think it is correct to say that the word “deem” or phrase “as if” are used to extend the meaning of a subject matter which they do not properly designate.”

There is no document before the Court to show that the 1st Defendant ratified exhibit 1 after its incorporation. Learned Counsel for the Claimant argued that the 1st Defendant presented itself and made people to believe that it was an incorporated company and cannot turn around to deny the truth of what it caused the Claimant to believe and relied on section 169 of the Evidence Act, 2011 and the cases ofA.G. Nassarawa State v. A.G. Plateau State [2012]10 NWLR [pt.1309] 419 at 470 and Kwajaffa v. Bank of the North [2004] 18 NSCQR 543 at 548. It was also contended that having taken benefit, the 1st Defendant could not resile from the contract. Learned Counsel for the Defendants argued that ratification of pre-incorporation contracts is a matter of law not dependent on agreement of the parties. It was further argued that A.G. Nassarawa State v. A.G. Plateau State [supra] did not decide on section 72 Companies and Allied Matters Act and the Defendants did not cause the Claimant to believe that a contract of employment existed between the Claimant and the 1st Defendant having denied issuing exhibit 1. It should be noted that section 72[1] of the Companies and Allied Matters Act does not differentiate between cases where the company has benefitted from the contract and where it has not. There is, therefore, no proposition that because a company has taken benefit under the contract entered into before its incorporation it is liable in equity under the contract. See Reform of the Law on Promoters liability for pre-incorporation contracts: An Anglo-Nigerian Comparison by P. Ehi Oshio [supra] at page 453. In my view, therefore, section 169 of the Evidence Act, 2011 will not apply to make the un-ratified pre-incorporation contract binding on the 1st Defendant. The section provides:

“When a person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.” [underlining mine]

The operative phrase is “intentionally caused or permitted another person to believe a thing to be true”. There is no way the 1st Defendant could have intentionally caused or permitted the Claimant to believe that it was a corporate entity when at the time it did not have capacity. The rule of estoppel is based on equity and good conscience. It prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of another party who, relying upon them, has altered his position. It, so to say, shuts the mouth of that party. See United Bank for Africa Plc v. Hon. Sunday Johnson & Anor. [2008] LPELR-5062[CA] at page 34. As I explained earlier, the 1st Defendant was not in existence when the contract was made and could not have validly made any representation to the Claimant on which he relied. Without ratification the 1st Defendant cannot be bound by the contract. Ratification validates the actions of the promoters and makes it that of the 1st Defendant. To this extent, the Claimant was not an employee of the 1st Defendant.

But it does not end there. Other factors will have to be considered. One of which is whether the 2nd and 3rd Defendants are liable to the Claimant under exhibit 1? Learned Counsel for the Defendants submitted that the 2nd and 3rd Defendants are not liable because they denied making exhibit 1. This denial is contained in paragraphs 11, 12, 13, 14 and 24 of the Defendants’ joint statement of defence. The onus was thus on the Claimant to prove that the 2nd and 3rd Defendants actually signed exhibit 1. This the Claimant did in paragraphs 2, 11 to 16 of his reply to Defendants’ joint statement of defence and counterclaim. These paragraphs are contained in paragraphs 3, 12, 13, 14, 15, 16 and 17 of the Claimant’s additional statement on oath dated 2nd May 2017. Of note are paragraphs 12 and 17 and for emphasis I will reproduce it here:

“12. That if I was a mere agent, I would have collected my fees and go [sic] back to my business as block producer, rather I was offered an employment upon the terms as stated in the letter of 5th August, 2013. I was also given an accommodation of 2 bedroom flat paid for by the 1st Defendant in No. 7 Chinese quarters of Alexander Suit Avenue Okigwe.”

“17. That the 2nd and 3rd Defendants duly signed and put upon the letter the seal of the 1st Defendant. That the signature on the letter is not a mere mark but the full names of the 2nd and 3rd Defendants which only the 2nd and 3rd Defendants can write and same can be compared with their other writings.”

This evidence was not impeached during cross-examination by the Defendants. Also, the 2nd and 3rd Defendants did not deny that the signatures on exhibit 1 is their signatures or aver that it was forged. They did not deny or contest the corporate seal of the 1st Defendant on exhibit 1. DW1 in paragraph 5 of his statement on oath merely stated:

“I know the Claimant. The Claimant was never employed as a manager [Corporate] on the 5th of August 2013 or any other date and the purported letter of appointment shown to me in the documents from the Claimant never emanated from the Defendants.”

It is settled law that where evidence on a material fact is unchallenged under cross-examination the Court will accept it as establishing the fact alleged therein. See Uchenna Atuanya & Anor. v. Sir Jonathan Atuchukwu & Anor. [2013] LPELR-22566[CA] at pages 44-45 and Mrs. Foluke Mudasiru & 3 Ors. v. Ibrahim Abdullahi & 5 Ors. [2011] LPELR-4550[CA] at pages 22-23. Although I am not a handwriting expert, pursuant to section 101[1] of the Evidence Act 2011, I have compared the signatures of the 2nd and 3rd Defendants on exhibit 1 with their signatures on exhibit 3-3F and the 2nd Defendant’s signature on exhibit DW1B and his statement on oath dated 28th October 2015; and I am of the firm view that the signatures on exhibit 1 are the same signatures on the 2nd Defendant’s statement on oath, exhibits 3-3F and DW1B and that of the 3rd Defendant on exhibit 3-3F. In addition, DW1 confirmed that the sum of N250, 000 monthly allowance was agreed with the Claimant and that he was housed in the 1st Defendant’s quarters. See paragraphs 19, 30, 31, 37 and 38 of DW1’s statement on oath dated 18th January 2018. DW1 did not state when this agreement was reached and whether it was reduced into writing or not. Also, the lump sum agency fee demanded by the Claimant was not stated. There is uncontradicted evidence that the Claimant was given an official vehicle [paragraph 28 of the Claimant’s additional statement on oath dated 2nd May 2017] and housed in the Defendants’ quarters in Okigwe and Enugu. The monthly allowance of N250, 000, the official accommodation and vehicle are items ii, iii and iv on exhibit 1. The question begging for answer is why did the Defendants provide accommodation, utility vehicle and agree to pay the monthly allowance of N250, 000 to the Claimant which are terms contained in exhibit 1 if he was a mere agent? The only plausible explanation is that these were done in furtherance of exhibit 1 and I so hold. DW1’s evidence in paragraphs 5, 12, 13, 14, 16, 30, 31, 37 and 38 of his statement on oath is an outright falsehood. The evidence of the Claimant on this issue is more plausible and I accept it as correct. In Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28, Niki Tobi, J.S.C. [of blessed memory] held:

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.”

I dare to say that DW1’s statement on oath is one of such affidavit evidence and it is sad when a witness who has sworn to tell the truth the whole truth and nothing but the truth tells a barefaced lie.

The law is settled that, in the absence of fraud, duress or plea of non est factum, the signature of a person of full age on a document is evidence that he either authored it or that the contents were brought to his attention. The signatures of the 2nd and 3rd Defendants on exhibit 1 implies full agreement with everything in it. SeeInterdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [supra] at page 23, Yadis Nigeria Limited v. Great Nigeria Insurance Company Limited [2000] LPELR-10365[CA] at pages 20-21. It is equally trite that the evidence in support of a plea of non est factum must be clear and positive to avail the 2nd and 3rd Defendants. See Sylvester D. E. Egbase v. Augustine O. Oriareghan [1985] LPELR-1030[SC] at page 39. There is no such evidence proffered by the 2nd and 3rd Defendants in this case. Consequently, I find and hold that the 2nd and 3rd Defendants made exhibit 1 and are bound by its stipulations pursuant to section 72[2] of the Companies and Allied Matters Act 1990.

Learned Counsel for the Claimant contended in paragraphs 4.3.10 and 4.3.11 of the Claimant’s final written address that ratification can be implied by the action of the Defendants in allowing the Claimant to work with them and the Claimant rendering the services enumerated in his evidence including being sued along with the 1st Defendant, interviewing job applicants, filing monthly expatriates’ returns and resuming at the site every day. Also, it was argued that a party relying on the provisions of a statute must plead facts which bring the transaction within the ambit of the statute. Learned Counsel for the Defendants did not respond to these submissions in his reply on point of law. I have looked at the joint statement of defence and there is no where the Defendants averred that the 1st Defendant was not incorporated at the time exhibit 1 was made or that exhibit 1 was not ratified by the 1st Defendant. The fact pleaded is that the Claimant was not a staff of the 1st Defendant. The law is trite that a party relying on a special statutory provision for his defence must plead that defence specifically. SeeChief P. D. C. Okenwa v. Military Governor, Imo State [1996] LPELR-2440[SC] at page 21 and G. Cappa Limited v. Daily Times of Nigeria Limited [2013] LPELR-22028[CA] at pages 50-51. In the circumstance, I agree with learned Counsel for the Claimant and hold that the defence of section 72 of Companies and Allied Matters Act 1990 having not been specifically pleaded by the Defendants in their statement of defence is not available to the Defendants.

The foregoing notwithstanding, inCarlen [Nig.] Limited v. University of Jos & Anor. [1994] LPELR-832[SC] at page 51, it was held that in the law of agency, ratification can be implied from any act showing an intention to adopt the transaction. See also Edokpolo & Company Limited v. Sem-Edo Wire Ind. Ltd & Ors. [1984] LPELR-1017[SC] at page 20, where Nnamani, J.S.C. held that there is nothing preventing a company after incorporation from entering into a new contract to put into effect the terms of the pre-incorporation contract. This new contract can be in express terms or can be implied from the acts of the company after incorporation. The fact that after incorporation of the 1st Defendant, the Claimant continued to work with the Defendants, was provided with official accommodation and vehicle and allowed to perform his functions as staff of the 1st Defendant, are indicators of an intention to adopt the contract entered into by the 2nd and 3rd Defendants. I therefore hold that there was an implied ratification of the Claimant’s contract of employment by the 1st Defendant.
The question then is does this make the Claimant an employee of the Defendants? The answer to this question will be determined by the evidence adduced by the Claimant and the incidents of a contract of service. Generally speaking, a contract of service does not follow any specific pattern. It can be oral, written, partly oral and partly written. It may also be inferred from the conduct of the parties. SeeNigerian Employment and Labour Relations Law and Practice by Chioma Kanu Agomo pages 70-71 and Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. & Ors. [2008] LPELR-3052[SC] at page 13. It has been held that where a contract of employment is unwritten the intention of the parties can be discovered by reference to the oral evidence of the parties and their witnesses and by facts of surrounding circumstances of the transaction. See Mobil Producing [Nig.] Unlimited & Anor. v. Udo Tom Udo [2008] 36 WRN 53 at 93. The basic elements of contract, offer and acceptance, consideration and capacity to contract, must be present. There is no doubt that there is offer, acceptance and consideration. Consideration in a contract of employment is the salary [in the instant case, the allowance] and other fringe benefits which an employee earns on the one part and the services which an employer receives on the other part. See Employment & Labour Law in Nigeria by Elizabeth A. Oji and Offornze D. Amucheazi at page 77. It is not in doubt that the 2nd and 3rd Defendants have capacity to contract, although the 1st Defendant did not have legal capacity to contract when exhibit 1 was made. This defence is not available to the Defendants for the reasons stated above. Also, I have found that there was an implied ratification of the contract by the 1st Defendant. But, if I am wrong, I will look at other elements of a contract of employment and see if the 1st Defendant is liable. A guide for determination of whether a contract is one of employment or not was provided in the case of Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. & Ors. [supra] at pages 13 and 14. In that case, the Supreme Court, per Muhammad, J.S.C., outlined six ingredients, namely:

If payments are made by way of wages or salaries this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of fees. In like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service.

Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress that indicates that it is a contract for service.

In a contract of service/employment it is inconsistent for an employee to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties thereunder, it becomes a contract for services.

Where the hours of work are not fixed it is not a contract of employment.

It is not fatal to the existence of a contract of employment that the work is not carried out on the employer’s premises.

Where an office accommodation and a secretary are provided by the employer, it is a contract of employment.

Applying the above criteria to this case, I am of the considered opinion that this is a contract of employment. I have arrived at this conclusion based on uncontroverted evidence before this Court. These, apart from exhibit 1, are:

Provision of official accommodation at Okigwe and Enugu and utility vehicle, paragraph 43 of the statement of facts.
Agreement to pay N250, 000 monthly allowance, paragraphs 16, 17, 18, 19, 20, 30, 31 and 32 of the statement of facts.
Filing of expatriates’ monthly returns with the Nigerian Immigration Service, paragraph 51 of reply to statement of defence and counterclaim and exhibit 19.
Interviewing and short-listing of job applicants, paragraphs 45, 46, 47, 48 and 49 of reply to statement of defence and counterclaim and exhibit 18.
Applying for and securing Police protection for the Chinese workers, paragraphs 25 and 26 of the statement of facts, paragraphs 24 and 25 of reply to statement of defence and counterclaim and exhibits 7 and 8-8B.
Defending actions on behalf of the Defendants, paragraphs 23 and 24 of statement of facts and exhibits 5 and 6.
Securing the Ezillo quarry site licence for the Defendants and carrying out instructions of the Defendants, paragraph 33 of statement of facts and exhibit 2.

Clearly, these assignments are not characteristics of an agent or facilitator or an independent contractor. They are incidents of an employment relationship. I therefore find and hold that the Claimant was an employee of the 1st Defendant.

This leads me to a review of the claims of the Claimant to see if he has established his case on a preponderance of evidence to be entitled to judgment. The first relief is for a declaration that the Claimant is entitled to the refund of the sum ofN306, 000 [three hundred and six thousand naira] only being the cost of the six [6] industrial tyres bought by the Claimant with his personal money. The evidence in proof of this claim is contained in paragraph 22 of Claimant’s statement on oath dated 14th May 2015, paragraph 19 of his additional statement on oath dated 2nd May 2017 and exhibit 4. It is item 4 on exhibit 12. The Defendants’ response is in paragraph 16 of the joint statement of defence and counterclaim, to wit:

“16. The Defendants deny paragraph 21 of the Claimant’s statement of facts and state that they never requested the Claimant to purchase tyres of any number of any size of whatever amount for the Defendants and the Defendants only saw the receipt bearing the Claimant names.”

This was reproduced in paragraph 17 of DW1’s statement on oath thus:

“17. We never requested the Claimant to purchase tyres of any number or any size of whatever amount for us and the Claimant never delivered tyres to us.”

First, the evidence that “the Claimant never delivered tyres to us” was not pleaded and goes to no issue. The Defendants’ defence is that they did not request for the tyres; but the Claimant insists that the said tyres are still being used by the Defendants. In addition, the Claimant tendered exhibit 4. The claim is also contained in exhibit 12 as item 4. The Defendants acknowledged receipt of exhibit 12 in paragraph 43 of the joint statement of defence and thus were aware of this claim but did not impugn it or disclaim liability by way of reply to exhibit 12. It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. See Alh. Garba Abubakar Bagobiri v. Unity Bank Plc [2016] LPELR-41161[CA] at pages 21-22. In addition, the Claimant produced a purchase receipt which was not impugned in any way. In fact, he was not cross-examined on it. In Universal Trust Bank of Nigeria v. Fidelia Ozoemena [2007] LPELR-3414[SC] at page 55, it was held that there is strict proof of special damages where there is a production of receipt as evidence of payment without oral evidence of the maker. Weighed on a balance, the Claimant’s evidence is more probable and I am inclined to accept exhibit 4 coupled with exhibit 12 as sufficient proof of relief 1 and find in favour of the Claimant. Relief 1 therefore succeeds and is hereby granted.

Relief two is for a declaration that the termination of the Claimant’s employment by the 1st Defendant under the instigation of the 2nd and 3rd Defendants is illegal and wrongful. The evidence in proof of this claim is contained in paragraphs 17, 19, 20, 46 to 52 of the Claimant’s statement on oath dated 14th May 2015, but there is no evidence of instigation by the 2nd and 3rd Defendants. The Defendants’ contention is that there was no employment and so no need to issue a query and at any rate that the Claimant voluntarily stopped “coming to the Defendant’s quarry in February 2015 after the issue of refund of the sum ofN14, 250,000” was raised with him. I have held earlier in this judgment that there is an employment relationship between the Claimant and the 1st Defendant. It is also in evidence that the Claimant’s employment was summarily terminated. I have looked at exhibit 1 and it is silent on termination of employment. Learned Counsel for the Claimant submitted in paragraph 4.2.6 of the Claimant’s final written address that the contract of employment can only be terminated at the end of any quarry lease. With due respect to learned Counsel, this submission is misconceived. There is nothing in exhibit 1 limiting the contract of employment to the tenor of the quarry lease. Clause i in exhibit 1 relates to 2% of daily sales only. It is a cardinal rule of construction of documents that parties are presumed to intend what they have in fact written down. Accordingly, the words employed by them will be so construed and given their ordinary meaning unless the circumstance dictate that a particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties. See Union Bank of Nigeria Limited & Anor. v. Benjamin Nwaokolo [1995] LPELR-3385[SC] at page 37. There is nothing from the pleading of the parties supporting the submission that the contract is for the life of the quarry lease. There is no evidence of trade usage or custom. Consequently, I hold that the contract is not for a fixed duration and did not provide the mechanism for termination. It is trite that where there is no express provision for termination in a contract of service, the Court will imply a term that the employment is terminable by reasonable notice given by either party. What is reasonable notice depends on the facts and circumstances of each case, including the nature of the contract and the status of the employee in the establishment. See Shena Security Co. Ltd. v. Afropak [Nig.] Ltd. & 2 Ors. [2008] 4-5 SC [pt.11] 117 at 143, Olayinka Kusamotu v. Wemabod Estate Limited [1976] LPELR-1720[SC] at pages 12-13 and Chief J. A. Ojomo v. Incar Nigeria Ltd. [1993] LPELR-2393[SC] at pages 18-19. Having regard to the circumstances giving rise to the contract between the Claimant and the Defendants, I am of the view that one month’s notice will be a reasonable notice. There was no notice given to the Claimant. Accordingly, I hold that the termination of the Claimant’s employment is wrongful.

Relief three is that the Claimant is entitled to the arrears of the monthly allowance ofN250, 000.00 [two hundred and fifty thousand naira] only from the month of August 2013 to January 2015 in accordance with his letter of appointment. In support of this claim the Claimant testified in paragraphs 31, 32, 33, 45 and 52 of his statement on oath and paragraphs 23, 31 and 40 of his additional statement on oath. The summary of the Claimant’s evidence is that he has not been paid the agreed monthly allowance. Although the Defendants denied an employment relationship with the Claimant, in paragraphs 19 and 30 of DW1’s statement on oath, the Defendants admitted that the sum of N250, 000.00 per month was agreed with the Claimant for their duration at Ugwulabo Obiulo Lekwesi Village and that payment was made but tendered no evidence of the payment made to the Claimant. Section 136[1] of the Evidence Act 2011 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. The burden of proving that the sum of N250, 000.00 was paid monthly, when it was paid and the mode of payment rested on the Defendants. This burden they did not discharge. There is no evidence of when and how the said sum of N250, 000.00 was paid. Accordingly, I hold that the Defendants did not pay the agreed sum of N250, 000.00 to the Claimant throughout the duration of this contract. Having already held that there is an employment relationship between the Claimant and the 1st Defendant; and, from the evidence before this Court, the Claimant worked till 11th February 2015 and there is nothing before me to show that he was paid any of the monthly allowances, I find and hold that the Claimant is entitled to the arrears of the monthly allowance of N250, 000.00 [two hundred and fifty thousand naira] only from the month of August 2013 to January 2015 in accordance with his letter of appointment.

Relief four is that the Claimant is entitled to two percent [2%] of the total daily sales of the quarry products in accordance with the terms of his appointment from October 2014 to January 2015. The evidence in support is in paragraphs 18, 19, 39, 40, 41, 42 and 43 of the Claimant’s statement on oath and paragraphs 14, 16, 33 to 37 of his additional statement on oath and exhibits 1 and 23. I observe that the recording of exhibit 23 began on 24th January 2015. Apart from the ipsi dixit of the Claimant, which was contradicted by the Defendants, there is nothing before the Court in proof of daily sales of quarry products. The Defendants’ evidence in opposition is contained in paragraphs 36, 37, 39, 45, 48 and 49. The summary of the defence is that there was no employment relationship with the Claimant, production and sale commenced in November 2014 and the number of trucks and tippers loaded depends on the business of each day. Having found that exhibit 1 and the surrounding circumstances constitute a contract of employment between the Claimant and the 1st Defendant, the express terms of exhibit 1 become binding on the Defendants. However, the burden of proof of the daily sales of the quarry products is on the Claimant and he must establish it to the satisfaction of the Court. This burden is heavy in the sense that the relief being declaratory in nature is never granted where the Claimant has failed to establish his entitlement to it by evidence. SeeBukar Modu Aji v. Chad Basin Development Authority & Anor. [2016] 7 ACELR 1 at 15. This burden, in my considered opinion, the Claimant has not discharged. The evidence of when sale commenced and the volume of sales per day were not supplied. In addition, exhibit 23 is not reliable. In the circumstance, relief four fails and it is hereby dismissed.

Relief five is that the Claimant is entitled to two percent [2%] of the daily sales of the quarry products and the monthly allowances ofN250, 000.00 [two hundred and fifty thousand naira] only from the month of February 2015 to August 2019 for the loss of income for the aforesaid period. The Claimant has not proved loss of income. This is an ordinary master and servant relationship. It must be noted that an employee holds his office or position at the pleasure of the employer. His office is not a right or an entitlement capable of conferring any special privileges and consequential damages in the event of removal. It is settled law that in a case of wrongful termination all that the employee gets is his salary in lieu of notice and other accrued benefits, certainly not compensation for loss of income. It is also trite that for a Claimant to succeed in securing a declaratory order, he must prove his case on a balance of probability. He must prove the existence of the facts before the Court can pronounce it to be true. See Mrs. Susan Olapeju Sinmisola Olly v. Hon. Olukolu Ganiyu Tunji & 2 Ors. [2012] LPELR-7911 [CA] 41, I. P. D. Abaye v. Ikem Uche Ofili & Anor. [1986] LPELR-21[SC] at page 81 and Bukar Modu Aji v. Chad Basin Development Authority & Anor. [2016] 7 ACELR 1 at 15. There is nothing in exhibit 1 that justifies the interpretation that the contract is for a fixed period. The facts were not pleaded and no evidence was adduced in support. The Court cannot speculate on this. Accordingly, I hold that this relief has not been proved. Relief five fails and it is hereby dismissed.

Relief six is for a declaration that the Claimant is entitled to 30% of the 2% of the daily sales which is in lieu of the salary for five years being the duration the quarry lease will last as the Claimant’s severance benefits. This fact was not pleaded and there is no evidence in proof of this claim. Learned Counsel for the parties did not address the Court on it which means that the relief has been abandoned. Relief six therefore fails and it is hereby dismissed.

Relief seven is for a declaration that the Claimant is entitled for [sic]N50, 000,000 [fifty million naira] only as general damages for wrongful termination of appointment. It is trite that in an employer and employee relationship, damages for wrongful termination are usually the sum of money payable in lieu of notice. See Mobil Producing [Nig.] Unltd & Anor. v. Udo Tom Udo [2008] 36 WRN 53 at 102 and Gabriel Ativie v. Kabelmetal Nig. Limited [2008] 5-6 SC [pt.11] 47. I held above that the Claimant’s employment was wrongfully terminated. The law is that where there is a wrong there must be a remedy. The measure of damages is the payment in lieu of notice. Since parties agreed on a monthly allowance of N250, 000.00 [two hundred and fifty thousand naira], and the Claimant’s employment was terminated on 11th February 2015, I hold that he ie entitled to one month’s salary in lieu of notice. Accordingly, I award the sum of N250, 000.00 [two hundred and fifty thousand naira] as general damages in favour of the Claimant against the Defendants. Relief seven therefore succeeds and it is hereby granted.

On the counterclaim, the Defendants appear to have abandoned reliefs a, b, d, e and f of the counterclaim and pressed for relief c. There is agreement that the Claimant borrowed the sum ofN900, 000 from the 1st Defendant and that this money has not been repaid. In admitting this amount the Claimant insisted that it was to be deducted from his monthly allowance. This admission is direct and unequivocal. Facts admitted require no further proof and the Court may enter judgment on the basis of the admission. See section 123 of the Evidence Act 2011 and Sea Petroleum & Gas Company Limited v. Henchy Nigeria Limited [2014] LPELR-24095[CA] at page 27. Accordingly, I find and hold that this is an admission against interest and binding on the Claimant. Judgment is hereby entered in favour of the 1st Defendant against the Claimant for the sum of N900, 000 being the total sum of unpaid loans obtained by the Claimant from the 1st Defendant.

In the final analysis, the claim and the counterclaim succeed in part. For the avoidance of doubt, judgment is entered in favour of the Claimant against the Defendants as follows:

Reliefs 4, 5 and 6 fail and are hereby dismissed. Reliefs 1, 2, 3 and 7 succeed and are granted.

It is hereby declared that the Claimant is entitled to the refund of the sum of N306, 000 only being the cost of the six [6] industrial tyres bought on behalf of the Defendants.

It is hereby declared that the termination of the Claimant’s employment by the 1st Defendant is wrongful.

The Claimant is entitled to the arrears of his monthly allowance of N250, 000 only from the month of August 2013 to January 2015 in accordance with his letter of appointment.

N250, 000.00 [two hundred and fifty thousand naira] is awarded as general damages in favour of the Claimant against the Defendants.

Judgment is entered in favour of the 1st Defendant against the Claimant for the sum of N900, 000 which amount shall be deducted from the total sum due and payable to the Claimant in furtherance of this judgment.