MR. Effiong N.O. -VS- AFAM POWER PLC

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 24^th day of October, 2019 SUIT NO: NICN/PHC/84/2018

BETWEEN:

Effiong N.O. ……………………………………………………………………………………..CLAIMANT

AND

AFAM POWER PLC………………………..………………………………….…………………….DEFENDANT

Representations:

A.B. Aigbikor for the Claimant.

Brownfor the Defendant.

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 24^th of July, 2018 along with statement of facts, statement of legal issues, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

Claimant later filed additional statement of fact and verifying affidavit on the 11^th of January, 2019.

Arising from the amended complaint and statement of fact, the Claimant claims against the Defendant as follows:

THREE MILLION, FIVE HUNDRED AND NINETY-NINE THOUSAND, EIGHT HUNDRED AND FORTY-SEVEN NAIRA ONLY (#3,599,847) BEING AND REPRESENTING MONIES OWED TO THE CLAIMANT BY THE DEFENDANT AS OUTSTANDING EXIT PACKAGE (TRANSPORT/REPATRIATION ALLOWNCE AND TERMINAL BENEFITS)
INTEREST ON THE SAID SUM OF THREE MILLION, FIVE HUNDRED AND NINETY-NINE THOUSAND, EIGHT HUNDRED AND FORTY-SEVEN NAIRA ONLY (#3,599,847) AT THE RATE OF 30% PER MONTH FROM 6^THDAY OF JULY, 2017 WHICH WAS THE DAY THE CLAIMANT RETIRED FROM THE ACTIVE SERVICE OF THE DEFENDANT, UNTIL JUDGMENT IS ENTERED IN THIS SUIT AND THEREAFTER AT THE RATE OF 10% PER MONTH UNTIL FINAL LIQUIDATION OF THE INDEBTEDNESS BY THE DEFENDANT.
GENERAL DAMAGES FOR THE HARDSHIP, PSYCHOLOGICAL PAINS, EMBARRASSMENT CAUSED THE CLAIMANT AND THE GROSS INCONVENIENCES WHEN HIS ELECTRICITY AND WATER SUPPLY WAS DISCONNECTED TILL DATE IN THE SUM OF 10,000,000 (TEN MILLION NAIRA) ONLY
COST OF LITIGATION IN THE SUM OF ONE MILLION NAIRA ONLY (#1,000,000)

Reacting to the claims, the Defendant entered conditional appearance on the 4^th of September, 2018 and filed a statement of defence on the 21^st of November, 2018 along with list of witnesses, witness statement on oath, list of documents and copies of the said documents. The Defendant later amended the said statement of defence which was filed on the 28^th of June, 2019 along with a counter-claim, additional witness statement on oath and additional list of documents to be relied upon at trial with copies of same.

The Claimant filed an amended reply to the Defendant’s initial amended statement of defence and also accompanied same with defence to the Counter-claim on the 10^th of June, 2019.

Trial commenced on the 17^th of January, 2019 with the Claimant opening his case. The Claimant was himself called as the sole witnesses in support of his case as CW1 and he adopted his witness statement on oath which was marked as C1(a). Through the said CW1, 13 documents were tendered and admitted in evidence as CW1(a) – CW1(m) while CW1(c) was however admitted under protest.

Arising from the statement of fact and witness statements on oath, the case of the Claimant is that he was a management officer of the Defendant and a senior manager in the Electrical Department before his retirement on the 6^th of July, 2017 with a last monthly emolument of N599,974.5K and by that, he is entitled to his EXIT PACKAGE as of right and as contained in the condition of service of the Defendant. Claimant posited that the Exit Package comprises of Transport/Repatriation allowance (20% of one year total emoluments) and Terminal Benefits (30% of one year total emoluments) which total sum is N3,599,847. Claimant averred further that while he was patiently waiting for these monies to be paid to him to enable him vacate from his official residence, the defendant vide its agents resorted to self-help by disconnecting the electric supply to his residence and also cut off his water supply since the month of February, 2018 thereby greatly inconveniencing him, his dependants and family. Claimant posited that despite several exchange of letters between his lawyer and the Defendant and a meeting where the Defendant promised to pay, the monies remain unpaid.

Upon cross examination of CW1, he posited that he was a staff of PHCN and retired from PHCN while admitting he was paid his terminal benefit by PHCN. CW1 also confirmed that all other workers with the Defendant were also retired from PHCN including the MD. He admitted that upon his retirement from PHCN, he was re-engaged by the Defendant and stated that there was no such thing as his re-engagement being renewable annually when he was in service and he was not given appointment letter. CW1 admitted he received the money stated in Exhibit CW1(m) and posited that his claim against the Defendant is not for unlawful termination and that he does not know if he was on ad hoc service to the Defendant. He concluded that he has letters from the Defendant and that he started occupying the staff quarters in 2015.

The said CW1 was recalled on the 3^rd of July, 2019 upon which he adopted his additional witness statement on oath marked as C1(b) and through him, 3 more documents were tendered and admitted in evidence as Exhibits C2 – C4 while Exhibit C4 was admitted under protest.

Upon further cross examination, the said CW1 posited that he was disengaged on 6/7/2017 and that it is 19 months since he has been disengaged while the condition of service which he tendered before this court gives him 90 days to pack out after settlement but he has not been paid so he cannot pack out. He stated that he was paid his pension on 9^th July 2018 and that it took a year while admitting that he was issued notices to vacate the premises. He insisted he has not vacated the premises until he is settled but denied that upon his disengagement in May, 2017, his union intervened to negotiate with the management to allow him come to work till when the issues was resolved before the Management accepted to pay for May and June. He posited that he worked in July but he was not paid in July and he is not claiming for July salary. He stated that he is not aware that Exit Package was paid based on laid down schedule. He stated that he was employed by Afam Power and that between Exhibit C4 and his disengagement on 4/7/2017, his disengagement is earlier in time. CW1 concluded that the cost of N1million is what he has agreed to pay his lawyer at the end of this suit.

Upon the discharge of CW1, Claimant closed his case while the Defendant in opening theirs called one witness in person of Joyce Monday Iniedu as DW1 who adopted her witness statements on oath which were marked as D1(a) and D1(b). Through the said DW1, 5 documents were tendered in evidence and admitted as D2- D6 while D2 and D3 were admitted under protest.

Arising from the statement of defence and witness statement on oath, the case for the defence is that the claimant did not retire as a staff of the defendant on record on 6^th July, 2017, but was statutorily retired from the service of the Defendant on April 22, 2017. The defendant added that the claimant was a staff of the defunct Power Holding Company of Nigeria (PHCN) whose employment was severed upon the unbundling and privatization of the company upon which he was paid his severance package which included all benefits due him. The Defendant averred further that the claimant is not entitled to any exit package as of right as the exit package of the defendant company contained in section 13.2 10 of the defendant’s staff conditions of service is applicable only to staff of the company who have served the company for at least five (5) years as at 1 July, 2017. The Defendant added that the Claimant was paid his pension after due process of account reconciliation was carried out by the Pension Funds Administrators (PFA) Stanbic IBTC, and not as a result of series of letter written to defendants and several demands as alleged by claimant.

During cross examination, DW1 posited that she is a staff of the Defendant and engaged at the same time as the Claimant. She posited that at the retirement of an employee, he vacates the official quarters after payment of entitlement if such employee have stayed 5 years to qualify for the benefit while admitting that the 5 years requirement is not in the condition of service but is stated in a circular. She stated that the date on exhibit D3 is 24/4/2018 while reckoning that the one on exhibit CW1(f) is 23/4/2018 but that there was negotiation with the union in 2017 when the period was pegged at 5 years. She concluded that she does not handle payments and both the circular and condition of service are equally superior.

Upon discharge of DW1, case of the Defendant was closed and matter was adjourned for adoption of Final Written Addresses. The Defendant filed their final written address on the 14^th of August, 2019 and arising therefrom, counsel to the Defendant C. Brown Esq. formulated four issues for determination to wit:

(i) Whether the facts and evidence before this court in this suit discloses a valid contract of employment between the Claimants his claims against the Defendant?(sic)

(ii) Whether in the absence of a valid and distinct contract of employment between the Claimant and Defendant, this suit is competent, Claimant having no capacity to initiate same?

(iii) Whether in the circumstances of this suit, and evidence before the court, Claimant is entitled to ancillary reliefs sought?

(iv) Whether by virtue of the facts and evidence before the court, Claimant is entitled to detain Defendant’s quarter/premises beyond 90 days after his disengagement and not deliver up same and pay rent to the Defendant as per its Counter-Claim?

In arguing issue one, counsel posited that by virtue of Exh. CW1A, Claimant infers that there was a subsisting employment which was transferred from the defunct PHCN to Afam Power Plc, the Defendant on record, being then a subsidiary of PHCN, and from which he retired on 6^th day of July, 2017. Counsel submitted that this was not the case and if it were so, Claimant would not have been paid all his terminal benefits as in Exh CW1M (D2) upon the unbundling of PHCN which benefits Claimant received as his final claim on his severance/exit from the services of PHCN.

Counsel contended that Afam Power Plc. is a public enterprise (Agency) in which the Federal Government of Nigeria has controlling interest vide and under the Federal Ministry of Power, Works and Housing and so also was PHCN an agency of the Federal Government of Nigeria. He posited thereon that Claimant has failed to establish the contract of employment (service) between him and the Defendant that gives him the capacity (locus standi) to bring action against the Defendant and cited section 4 (1) and (2) of the fifth schedule of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

In arguing issue two, counsel contended that Exh. CW1A is a formal appointment letter showing National Electric Power Authority (NEPA) which later became PHCN, the parent body of the Defendant and in paragraph 2 of the Claimant’s written statement on Oath filed on November 22, 2018, Claimant stated that he is a retired staff of the Defendant while same averment is contained in paragraph 1 of Claimant’s Further Statement on Oath filed on June 10, 2019.

Counsel added that the Defendant company being a subsidiary of the defunct PHCN, a creation of the Act of National Assembly and upon the unbundling of same (PHCN), is still governed and regulated under the Act and controlled by the Federal Ministry of Power, Works and Housing, and such other ministerial regulatory agencies and thus its contract of employment with any employee in the status of the Claimant in this case must be statutory. He cited the case of CBN v IGWILO (2007) 5KLR (Pts 236— 238) 2257 @ 2291 para 2(d).

Counsel submitted in addition that by the combined effect of the Defendant’s Condition of Service Exh CW1H, and Exh. D3 — Internal Circular dated April 2018, made pursuant to Article 7.1.7, chapter seven of the said Exh CW1H, the Claimant does not qualify for entitlement of exit package from the Defendant. Counsel referred to the testimony of DW1 during cross examination and posited that by virtue of Exh. CW1M (D2), the Claimant had received all his statutory entitlement from PHCN upon his severance from its services resulting from the unbundling of same, and that Defendant being then a subsidiary of PNCH only reengaged the Claimant and disengaged him on his attainment of statutory age of 60 years to quit the public service. he added that Claimant is therefore not entitled to further (double) benefit after receiving same from PHCN which include pension, repatriation allowance and more.

In addressing issue three, counsel contended that the Court cannot award pre/post judgment interest as claimed by the Claimant in the face of the facts, evidence and circumstances of this suit. He added that award of pre/post judgment interest has been held not to be automatic as same must be specifically pleaded and proved. He cited the case of Coast Oil Ltd vs. Tuboscope Vetco Inter’I & Anor (2019 LPELR — 46450 (C.A).

He also contended that the Claimant in the instant case has failed to prove how he arrived at the interest rate of 30% on the sum claimed without stating the basis for same as pre-judgment interest is only claimable on liquidated sum. He cited the case of FCMB vs. Dickson (2016) NGCA 96 and NPA vs. Aminu Ibrahim & Anor (2016) LPELR — 44464 (S.C.)

With regards to claim for general damages in the sum of N10,000,000.00, (Ten Million Naira), Counsel submitted that Claimant is not entitled to the claim as the pictures in Exh. CW1c do not in any way show any verifiable link to the Defendant quarters. He added that DW1 was not confronted with the said Exh. CW1c on whether the pictures therein was the premises/quarters of the Defendant.

Counsel further posited that general damages is primarily to compensate the Claimant for harm done to him and the Claimant having failed to establish with credible evidence, act of the Defendant that allegedly caused him any harm, he is not entitled to general damages as claimed. He urged the Court to dismiss the claim as it is trite that he who asserts must prove. He cited the case of British Airways vs. Atoyebi (2014) LPELR 23120 S.C. and section 133 (1) Evidence Act, 2011.

He also urged the court to reject the said Exh. CW1c as same lacks credibility and cogency required of an acceptable documentary evidence and dismiss the Claimant’s claim of general damages made thereupon.

With regards to claim for cost of action, counsel posited that in Guiness Nig. Plc. Vs. Emmanuel Nwoke (2000) 15 NWLR (pt 689) 135, the Court of Appeal also refused to award claim for solicitor’s fee and noted that it is “Unethical and an affront to public policy to pass on the burden of solicitor’s fee to the other party”. He cited in addition the case of Nwaji vs. Coastal Services (Nig.) Ltd (2004) 11 NWLR (pt. 885) 552 @569, C-D.

Counsel added that there is a material contradiction in proof of cost in view of Exh. CW1L tendered by the Claimant himself. He posited that while Exh. CW1L — Claimant’s Counsel, official Receipt No. 0507 dated July 3, 2018 suggests to be Receipt in proof of purported payment of the sum of 1,000,000.00 made by Claimant as fees for maintaining and prosecuting his instant suit, Claimant on July 3, 2019 exactly one year after, told the court under cross-examination that the said sum of N1,000,000.00 was what he agreed with his counsel to pay at the end of the case.

In arguing issue four, counsel submitted that the Claimant is deemed to be exercising lien over the premises of the Defendant pending the payment of the purported entitlement of Exit Package. He submitted that Black’s Law Dictionary 10th Edition, page 1063, defines “lien” to mean” a legal right or interest that a creditor has in another’s property, lasting usually, until a debt or duty that it secures is satisfied”.

Counsel then contended further that Claimant relies on Article 13:8 of Defendant’s condition of service, Exh. CW1H to continue to occupy Defendant’s staff quarters well beyond 90 days as provided in the same Exh. CW1H even after valid notices had been issued to him to vacate the said quarters, claiming his entitlement to payment of exit package by the Defendant.

Counsel argued that Claimant is not qualified for Defendant’s exit package by virtue of Exh. D3 having not been in the services of the Defendant for five years as he was disengaged on May 2, 2017 by virtue of Exh. CW1K, tendered by Claimant which date of disengagement Claimant acknowledges. He added that assuming without conceding that Claimant was re-engaged by Defendant on July 1, 2012, he was two clear months short of 5 years in the service of Defendant and therefore not qualified for the claimed exit package by virtue of Exh. CW1K and D3, and his deposition on Oath.

He contended further that by virtue of Article 8.2, 8.8, 8:10 of the said Exh. CW1H, the Defendant company may provide accommodation to an employee and such employee is charged economic rent, and when disengaged from the services of the company is given notices to vacate the premises occupied after 90 days of grace from the date of his or her disengagement. Counsel added that Exh. CW1(j) and D6 are valid notices issued the Claimant by the Defendant at the expiration of the 90 days post disengagement to vacate the premises which he refused to vacate.

He concluded on the issue that Defendant is entitled to be paid rent by the Claimant for the period he occupied the quarters beyond 90 days he was entitled to stay in the premises after his disengagement from the Defendant Company as per Defendant’s Counter-Claim.

Counsel concluded his address by urging the court to resolve all the issues put forward for determination in favour of Defendant and against the Claimant and dismiss this action for lacking in merit. While further urging the court to hold that Defendant/Counter-Claimant has succeeded in its Counter-Claim against the Claimant, and grant the Counter- Claim as prayed.

Claimant in reaction filed his final written address on the 16^th of September, 2019 and arising therefrom, counsel to the Claimant A.B. Aigbikor Esq. formulated 5 issues for determination to wit:

Whether from the evidence before this honourable court, the Claimant was in the employment of the defendant and so entitled to his exit package and other reliefs sought.
Whether as at the time the defendant issued the Claimant notices to vacate from his official quarters she (the Defendant) was still indebted to him.
Whether the Claimant is hereby entitled to his ancillary relief of general damages in the sum of ten million naira (N10,000,000) for the psychological trauma, inconveniences, embarrassment, shame, pains caused the claimant by the defendant when he (sic) (the Defendant) disconnected his electricity and water supply while indebted to him and 30% interest on the principal sum and 10% post judgment sum.
Whether the Claimant is entitled to the cost of one million naira being for the payment for legal services of her (sic) Counsel
Whether the defendant is entitled to rent from the Claimant after 90days of his disengagement from her service and while the defendant failed to pay him his entitlement while forcefully ejecting him.

In arguing issue one, counsel contended that the Claimant had admitted that he was formerly in the employment of PHCN which later became defunct and he was paid his severance benefits and thus has no issues with defunct PHCN and Claimant did not make her a party in this suit. Counsel added that Claimant had averred in his statement of facts that he was engaged by the defendant after PHCN went into extinction and that though none of the staff employed as at that time was given a formal letter of employment including the Managing director-O.N.Obademi, the contract of employment was implied. Counsel referred to the testimony of the Defendant’s sole witness under cross examination on the 4/7/2019 when she admitted that she is a staff of the defendant and that she was employed at the same time with the Claimant.

Counsel also referred to Exhibit D4 as naming the Defendant as Claimant’s employer and facts admitted need no proof. She cited the cases of AIKI v. IDOWU (2206) 9 NWLR (pt. 984) 50 CA; C.D.C (Nig.) LTD v. SCOA (Nig.) LTD (2007) 6 NWLR (Pt.1030) 300 SC. and OGBEIDE v OSIFO (2007) ALL FWLR (pt.365) 548 CA.

Counsel contended that Section 4(1) of the fifth schedule to the Constitution of the Federal Republic of Nigeria 1999(as amended) cited by counsel to the Defendant is misconceived.

Counsel further cited the case of D.A.(NIG) ALEP LTD V. OLUWADARE (2007) NWLR (Pr. 1033) 336 CA to posit that where a condition of service exist between an employer and an employee, the provisions contained therein are binding on them.

Counsel contended that the Defendant made Exh.D3 in anticipation of this proceeding in view of the date thereon. She cited section 91(3) of the Evidence Act to contend that the section renders inadmissible any statement made by a person interested where such statement is made at a time when action is pending or anticipated and the action involves any dispute in regard to any fact which the statement might tend to establish. Counsel also cited the cases of NWANGWA v. UBADAN (1997) 10 NWLR (pt. 526) 559; APENA v. AIYETOBI(1989) 1 NWLR (PT.95) 85 and ANYAEBOSI v. R.T.BRISCOE (1987) 6 SC. 15.

She also referred to Section 13.2.1.10 of EXH. CW1H and contended that the section is very clear and free from ambiguities contrary to the impression the sole witness of defendant wanted to create in the mind of the court.

Counsel also contended with respect to Exh. CW1H that the defence Counsel has also misquoted and misinterpreted Chapter 7. She added that in order to get the proper interpretation and context of Section 7.1.7 quoted by counsel to the Defendant, same has to be read in conjunction with Section 7.1.

In arguing issue two, counsel posited that by a combined reading of Section 8.10 (HOUSING) & Section 13.2.1.10 of EXH. CW1H and in view of EXH.CW1K, it is clear that Claimant’s pension was not paid until June 2018. Counsel contended that the monies paid to the Claimant was paid by PHCN and not the Defendant.

With regards to issue three, Counsel submitted that it is trite to state that general damages are not quantifiable as a matter of fact and added that same is purely at the discretion of a trial court which heard all the parties and could easily determine what would amount to reasonable compensation to a party entitled to such an award. She cited the case of FARO NIG. LTD vs SHAIBU DAWODU (1993) 3NWLR 9(Pt. 281) 372 Ratio 5.

Counsel added that in the case of trespass to the property in the possession of the claimant as in this case, there can be award for injury to feelings. She cited the case of OWEN & SMITH v. REO MOTORS (1934) 151 L.T.274.

Counsel posited that the Claimant has placed sufficient material evidence before the court in the form of photographs which were admitted under protest as Exh. Cw1C, Letter written to the defendant to stop her further unlawful acts which are already before the court.

Counsel added that it is in evidence that the defendant started the process of recovering her official quarters by issuing the Claimant EXH.CW1(j) which is a FINAL NOTICE TO VACATE FLAT 7-CAMP”A” dated the 26^th January, 2018 and then subsequently disconnected the electricity and water supply of the Claimant in February,2018 and pursuant to that, Counsel to the Claimant wrote a petition to the Police Area Command Oyigbo, Rivers State which is an Exhibit in this matter Exh.CW1(i) and letters were also written to the defendant to stop taking laws into her hands.

Counsel posited thereon that the Claimant has in view of the evidence before the court proved that he is entitled to the ancillary claims.

With regards to cost, counsel posited that cost will be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel cost is usually awarded for a leader and one or more juniors. She cited the case of REWANE v. OKOTIE EBOH (1960)SCNLR 461 and AKINBOBOLA v. PLISSON FISCO NIG. LTD(1991) 1 NWLR (Pt. 167 7270) to add that generally, except on very exceptional circumstances of depriving him of his entitlement, which must be indicated by the judge, a successful party to a litigation is entitled to the costs of action.

With regards to issue four, counsel referred to Section 8.10 (HOUSING) & Section 13.2.1.10 of EXH. CW1H (AFAM CONDITION OF SERVICE) to contend that it is clear that the entitlement of the Claimant as contained in the said Section has not been paid and the Defendant has no legal and moral justification to ask for rent while still indebted to the Claimant. Counsel thereon urged the Court to dismiss the Defendant’s relief seeking for rent from the claimant.

Counsel concluded on the address by praying this court to take a holistic look at the evidence before the court and align them with the submissions of the counsel in this matter to reach a judgment that the Claimant has established his case against the Defendant on a preponderance of evidence to warrant the court to give judgment in his favour while dismissing the prayer (counter-Claim) of the Defendant as same is vexatious, uncalled for and made mala fide.

By way of a reply on point of law filed by the Defendant on the 19^th of September, 2019, Counsel to the Defendant contended that the cases of UBN vs. OZIGI (1994) 3 NWLR (Pt 333) 385 SC, and B.O.N Ltd vs. AKINTOYE (1999) 12 NWLR (Pt. 631) 392 CA which were cited by Counsel to the Claimant are not applicable to this case in view of the fact that there is no written terms of contractual relationship.

Counsel also contended that pre-judgment interest is only payable on liquidated sum and cited the cases of FCMB vs Dickson (supra) and N.P.A vs. Aminu Ibrahim & Anor (Supra).

Counsel also posited that there was typographical error in the typing of Section 4(1) and (2) of the fifth schedule to the 1999 constitution (as amended) wherein the words “than one” were inadvertently omitted.

He concluded by urging the court to dismiss the case of the Claimant for lacking in merit.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and Defendant’s reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for the determination of the substantive suit is to wit:

Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.

Before I address the said issue, I find it apposite to address the status of the exhibits admitted under protest in the course of trial. On the part of the Claimant, exhibits CW1(c) and C4 was admitted under protest while on the part of the Defendant, Exhibit D2 and D3 were admitted under protest.

With regards to Exhibit CW1(c), counsel to the Defendant contended that the said exhibit does not show that it is the property of the Defendant and could have been from anywhere.

Counsel to the Claimant posited in response that the document is relevant and admissible.

I have taken a look at the said exhibit CW1(c) and find that same is a collection of photographs of a building, electric pole and water pipes. The said pictures were pleaded by the Claimant in paragraph 6 of the statement of facts where the Claimant averred to the effect that the Defendant resorted to self-help in attempt to evict him from the property he occupies by cutting off electricity and water supply.

In view of the foregoing finding, there is no gainsaying that the said exhibit is relevant to the proceeding and it has been duly pleaded. The contention that the photographs does not depict the building of the Defendant is a matter of weight to be attached to the said exhibit and not a ground to render the exhibit inadmissible per se.

Consequently, the objection is overruled and the said exhibit CW1(c) is accordingly admitted in evidence.

With regards to exhibit C4, Counsel to the Defendant contended that the said exhibit is not admissible because it did not emanated from the Defendant, therefore it has no origin and is not signed.

Counsel to the Claimant responded that the grounds for admissibility of documents are relevancy, whether they are pleaded and whether they are admissible.

In view of the foregoing contention, I have taken a look at the said exhibit C4 and find that the said document is an internal circular dated 15^th September, 2017, addressed by MD/Chief Executive Officer, Afam Power Plc. to “All”. The said document was also indicated to be signed by management.

Upon considering the argument of counsel to the Claimant, I find that the said exhibit bears the name of the Claimant as No.2 on the list of names and the circular is intended to inform all persons whose names were contained therein that they have been disengaged from Afam Power Plc with effect from 4^th July, 2017.

The foregoing finding establishes the relevancy of the said document to this suit and in view of the settled position of the law that relevancy governs admissibility, the said exhibit C4 is found to be relevant and has been properly pleaded. Consequently, the objection of counsel to the Defendant is overruled while the said exhibit is admitted in evidence.

With regards to Exhibit D2 and D3, counsel to the Claimant contended that DW1 is not a staff of PHCN and that PHCN is not a party to this suit while Counsel to the Defendant responded that what matters is that the said exhibits are pleaded.

In view of the foregoing, I have taken the general facts of this case into account particularly the fact that the Claimant averred that he was a former staff of PHCN while the Defendant is contending that the Claimant has been paid his terminal benefits in the course of the unbundling of PHCN. Consequently, the said Exhibits D2 and D3 which are respectively a ‘Severance Benefit Advice’ letter, addressed to the Claimant and a circular for the approval and clarification on exit benefits for members of staff transferred from PHCN to Afam Power plc, are considered relevant for the determination of this suit. In that regard, the objection of Counsel to the Claimant is baseless and same is accordingly overruled. The said exhibit D2 and D3 are hereby admitted in evidence.

That said, I then turn to the sole issue for the determination of this suit which is whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.

In resolving the sole issue, I must start by positing that the parties before the court are in accord as to the background of the Claimant’s employment notwithstanding that counsel to both parties have proffered arguments in relation to same. To be specific, counsel to the Defendant contended that there is no distinct and valid contract of employment existent before the court which earns the Claimant capacity to initiate this suit.

In addressing the said contention, I must state that the contention is to be considered in the light of the fact and evidence before the court. In this wise, the witness called by the Defendant as DW1 stated through her witness statement on oath marked as D1(b) in paragraph 4 that the Claimant was engaged by the Defendant (sometime) in 2012 as a worker after his severance from services of PHCN which is the defunct Parent Company of the Defendant.

The Claimant narrated similar fact in paragraph 3(i) of the reply to the statement of defence that he was a staff of the Defendant and was engaged after the defunct PHCN while he worked with the Defendant until his disengagement on 6^th July, 2017 even though the letter of disengagement issued to him was dated 2^nd May, 2017, he was still paid salary for the month of June 2017. He also stated in paragraph 3 of his additional statement on oath that the original company that employed him was National Electric Power Authority which later transformed to PHCN and thereafter, Afam Power Plc, the Defendant.

The evidence before the court supports the foregoing narratives as Exhibit CW1(a) tendered by the Claimant is a letter of ‘Offer of Appointment’ issued to the Claimant by National Electric Power Authority dated 23/12/83. Also, Exhibit CW1(b) and CW1(c) which are the pay advice for the months of May and June 2017 issued to the Claimant bear the names of Power Holding Company of Nigeria and Afam Power Plc.

Consequently, there is no doubt as to the fact that the Claimant carried forward his employment from the NEPA to PHCN.

Exhibit CW1(m) which is a letter written by Bureau of Public Enterprises dated the 10^th of June, 2013 and addressed to the Claimant establishes the fact that NEPA/PHCN was indeed unbundled (privatized) and the Claimant was in the course of such privatization paid severance benefit. It was upon the said privatization that the Defendant engaged the Claimant, making the Defendant the employer of the Claimant for the purpose of the instant suit.

It is perhaps upon the status of the Claimant being re-engaged by the Defendant after the unbundling of PHCN that Counsel to the Defendant contended that the Claimant has not presented any distinct and valid contract of employment.

In this wise, I must state that being employed is one thing while being issued a letter of employment is another and there is no gainsaying that a person can be employed without being issued a letter of employment considering the fact that an employment contract can be orally made.

Rightly so, there is no contract of employment or re-engagement in form of a letter between the Claimant and the Defendant as presently constituted upon which to ascertain the terms and condition regulating the said re-engagement in the instant case. However, it must be noted that it is possible for parties to orally enter into a contract of employment as the court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC) held that:

“A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff.” Per MUHAMMAD, JSC. (P.13, Paras.A-C).

In addition to the foregoing, the court in the case of MOBIL PRODUCING NIG. UNLT & ANOR. v. UDO (2008) LPELR-8440(CA) held that:

“The general rule is that the contract of employment may be in any form, and not necessarily in writing. A contract of employment may be inferred from the contract of the parties if it can be shown that such a contract was intended although not expressed. It should be noted that the inference may be rebutted if such service is incompatible with employment. This may happen where the parties are relations or where the service was performed on the basis of a charity. Nevertheless, a contract of employment may be oral unless there is a statute requiring writing or deed.” PER ORJI-ABADUA, J.C.A. (P. 67, Paras. C-E).

Taking the foregoing authorities into cognizance and taking into account the antecedent of the Defendant being formerly known as PHCN, it is safe to conclude that there existed an employment relationship between the Claimant and the Defendant. The said conclusion is concretised by the fact that Exhibit CW1(a) (the letter of disengagement) and Exhibit CW1(b) (the Pay advice for the months of May and June) issued to the Claimant bears the names PHCN and Afam Power Plc.

In addition, the assertion by the DW1 that Claimant was engaged in 2012 as a worker lends credence to the conclusion that the Claimant was employed by the Defendant after the severance of his employment with PHCN.

I must state that I am not oblivious of the argument of counsel to the Defendant that the Claimant cannot be employed by the Defendant in view of the provision of section 4(1) and (2) of the 5^th Schedule to the Constitution. The said section provides thus:

(1) A public officer shall not, after his retirement from public service and while receiving pension from public funds, accept more than one remuneration position as chairman, director or employee of –

(a) a company owned or controlled by the government; or

(b) any public authority.

(2) A retired public servant shall not receive any other remuneration from public funds in addition to his pension and the emolument of such one remunerative position.

Counsel upon the said provision contended that the Defendant is a Public enterprise (Agency) in which the Federal Government of Nigeria has controlling interest.

In view of the foregoing provision, I must state that the argument of counsel to the Defendant holds no water as the provision is not an absolute bar from having a remunerative position. Rather, the provision states that such remunerative position shall not be more than one.

Having said that, I hereby proceed to address the reliefs of the Claimant and in doing so, I reckon that the claims of the Claimant is for monies owed as transport/repatriation allowance and terminal benefit predicated upon a condition of service which he contends is owed to him by the Defendant upon his retirement on 6^th July, 2017.

In view of the claims, the law is trite that he who asserts must prove. The court in Dalhatu v. Attorney-General, Katsina State (2008) All FWLR (Pt. 405) 1651 at 1677 – 1678, paras. H – B (CA) held that:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof of the assertion is on the plaintiff/appellant who asserts. See Akinreti v. Jenyo (1986) 2 NWLR (Pt. 22) 305; Elias v. Disu (1962) 1 SCNLR 361; Abiodun v. Adehin (1962) 2 SCNLR 305; University Press Ltd. v. I.K. Martins Nig. Ltd. (2000) FWLR (Pt. 5) 722, (2000) 4 NWLR (Pt. 654) 584, Emeka v. State (2001) FWLR (Pt. 66) 682, (2001) 6 SC 227; Attorney-General, Bayelsa State v. Attorney-General, Rivers State (2006) 12 SCM (Pt. 2) 1, (2007) ALL FWLR (Pt. 349) 1012, (2007) 8 WRN 1”.

In attempt to fulfill the requirement of the law in terms of proof, Claimant tendered Exhibit CW1(h) which is titled “Afam Power Condition of Service, May 2017 Edition”. Arising from the said exhibit, counsel to the Claimant contended that the Claimant is by section 13.2.1.10 entitled to Exit Package from the Defendant.

In denying the claim, the Defendant posited that the Claimant has been paid severance benefit by PHCN. The Defendant added that the Claimant is not entitled to any exit package as contained in section 13.2.10 of the staff condition of service as same is applicable to staff who have served the company for at least 5 years as at 1^st July 2017. The defendant posited that this is contained in a circular dated 24^th April, 2018.

In resolving the foregoing contention, there is no gainsaying that a condition of service plays a vital role in determining the rights of the parties whom it is binding upon. The court in SEVEN-UP BOTTLING COMPANY PLC v. AJAYI (2007) LPELR-8765(CA) posited that:

“It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390.” Per SHOREMI, J.C.A (P. 25, paras. A-B)

It is upon the foregoing authority that I find it apposite to consider the provision of the condition of service in question. The said section 13.2.1.10 reads thus:

Any staff exiting the company by reason of age or tenure shall be entitled to the following benefits:

Transport/Repatriation allowance (20% of one year total emoluments)

Terminal Benefits (30% of one year total emoluments).

In the face of the foregoing provision, it is imperative to consider whether the Claimant exited the Defendant by reason of age or tenure as stipulated in the condition of service for him to be entitled to the stated exit package. In this wise, I reckon that the Claimant posited that he retired from the service of the Defendant on the 6^th of July, 2017 however, there is no evidence before this court in support of the assertion. Rather, what the Claimant tendered was Exhibit CW1(k) which is a letter of disengagement from service addressed to the Claimant with a letterhead of PHCN and same is dated 2^nd May, 2017. The first paragraph of the said letter reads:

Following the finalization of the negotiation with PHCN Labour Union on the settlement of terminal benefits, and subsequent payment of agreed severance entitlements to your account, you are hereby disengaged from the service of the Company with effect from 2^nd May, 2017.

In view of the foregoing, I must state that the Claimant’s case and claim is incongruous. First for the fact that the Claimant posited during cross examination on the 25^th of March, 2019 that he retired from PHCN and was paid his terminal benefits by PHCN and it was after his retirement that he was re-engaged by the Defendant. This fact does not align with his averment in statement of fact and witness statement on oath that he retired from the Defendant on the 6^th of July, 2017. Secondly, when Claimant was asked about his deposition that he retired on 6/7/2017, he stated that he was told by the Management that his retirement was on the basis of attainment of 60 years. In view of the assertion, the incongruity is worsened in the face of the admission by the Claimant that he has been paid his terminal benefit upon the defunct of PHCN and consequently has no problem with PHCN. (see paragraph 4 of reply to statement of defence)

The foregoing raises the question of whether the Claimant can be said to retire twice from two distinct organizations and if so, at what age did he retire from each of them? Another question is that, will the computation of the age or year of service of the Claimant be upon his retirement from PHCN or upon his disengagement from Afam Power plc (the Defendant)? Also, in view of Exhibit CW1(k) which is a documentary evidence that the Claimant was disengaged from PHCN with effect from May, 2017, within what period did the Claimant get engaged with the Defendant to entitle him to a separate terminal benefit from the Defendant?

The foregoing incongruity comes to mind in view of the fact that the clear provision of section 13.2.1.10 is predicated on the employee exiting the company on basis of age or tenure. In this wise, it is incumbent on the Claimant to establish before the court the basis upon which he became entitled to the said benefit and this he has failed to do.

In addition to the foregoing, I find that the Claimant tendered Exhibit CW1(b) as the pay advice for his last salaries for the months of May and June with the Defendant. While the Claimant averred in his statement of fact and witness statement on oath that his monthly salary is N599,974.5k, the total sum payable to the Claimant as salary stated in the said Exhibit CW1(b) is the sum of N551,241.80.

The foregoing discrepancy in the Claimant’s monthly salary comes to the fore in view of the fact that section 13.2.1.10 (upon which Claimant predicates his claim) provides for 20% of one year total emolument as Transport/Repatriation allowance and 30% of one year total emolument as terminal benefit. The discrepancy also comes to mind in view of the fact that the Claimant failed to establish the sum of yearly emolument upon which he computed and arrived at the sum of N3,599,847 as exit benefit.

In the light of the foregoing, I must state that the facts and evidence presented by the Claimant before this court in respect of his claim is tainted with contradictions making it impracticable to ascertain the basis of the Claimant’s claim for exit package. The effect of such contradiction was stated in the case of OGBOMO v. OGBOMO & ANOR (2014) LPELR-22612(CA) where the court held that:

“It is a settled principle, that the ultimate consequence of multiple material (substantial) contradictions in an evidence, is destructive. As once aptly reiterated by this court – The consequence of these multiple contradictions are clear. They succeed to destroy the case of the Appellants as presented…See IGBOJIMADU VS. IBEABUCHI (1998) 1 NWLR (Pt. 533)179 @ 201 paragraph D per Nsofor, JCA.” Per SAULAWA, J.C.A. (Pp. 42-43, paras. F-A).

In addition, I must reiterate that the standard of proof in a civil claim as in the instant case is on a balance of probability or preponderance of evidence. The court in the case of OKORIE v. UNAKALAMBA & ANOR (2013) LPELR-22508(CA) held that:

“It is trite law that all civil cases in Nigeria are decided on the preponderance of evidence or balance of probability. See Yakubu vs. Jauroyel (2005) ALL FWLR (PT. 283) 184 at 206. This implies that the evidence must be holistically examined and weighed on the imaginary scale to see where it tilts or preponderates. In fact, customary law is entirely a matter of evidence to be decided on the fact presented before the court and must therefore be proved in any particular case. See Agbabiaka vs. Saibu (1998) 10 NWLR (PT. 571) 534 SC.” Per AJI, J.C.A. (Pp. 41-42, paras. G-B)

In related terms, the court in UBA PLC v. YAHUZA (2014) LPELR-23976(CA) held that:

“In civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Dibiamaka Vs Osakwe (1989) 3 NWLR (Pt 107) 101 at 113, Jiaza Vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Mbani vs Bosi (2006) 11 NWLR (Pt 991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71” ABIRU, J.C.A (P. 28, paras. B-D).

Relying on the foregoing authorities, I must state that the claim of the Claimant in respect of exit package is beclouded with contradictions and the evidence before the court does not support his case on a balance of probability or preponderance of evidence.

Consequently, relief 1 which is for the sum of Three Million, Five Hundred and Ninety-Nine Thousand, Eight Hundred and Forty-Seven Naira only (N3,599,847) being and representing monies owed to the claimant by the defendant as outstanding exit package (transport/repatriation allowance and terminal benefits, suffers from dearth of proof and same is accordingly refused.

Relief 2 is for interest on the said sum of three million, five hundred and ninety-nine thousand, eight hundred and forty-seven naira only (#3,599,847) at the rate of 30% per month from 6^th day of July, 2017 which was the day the claimant retired from the active service of the defendant, until judgment is entered in this suit and thereafter at the rate of 10% per month until final liquidation of the indebtedness by the defendant.

The said relief which is for pre and post judgment interest is dependent on the success or failure of relief 1 and upon the refusal to grant the said relief 1, it is axiomatic that there is no basis upon which interest can be granted. Consequently, the said relief 2 is bound to fail and same is accordingly refused.

Relief 3 is for general damages for the hardship, psychological pains, embarrassment caused the claimant and the gross inconveniences when his electricity and water supply was disconnected till date in the sum of 10,000,000 (ten million naira) only.

The highlight of facts related to the foregoing claim for general damages is that the Claimant posited that while he was waiting to be paid the Exit Package (which he claimed in relief 1) to enable him vacate his official residence, the Defendant vide its agents resorted to self-help by disconnecting the electric and water supply to his official residence since the month of February, 2018 thereby causing him and his family great inconveniencies.

In attempt to prove the claim, Claimant tendered Exhibit CW1(c) which comprises of a pictures of a building with two cars parked in front; a picture of electric pole with cable connected to same and two pictures of water and waste pipes.

The Defendant denied the allegation of disconnecting electricity and water supply and posited that the Claimant had rendered the Defendant’s quarters in his occupation dilapidated with all the fixtures out of place. DW1 posited that the Claimant was also issued notice to vacate the premises as he was only entitled to 90 days grace to stay in the said accommodation from the date of his retirement from the Defendant.

Upon an evaluation of the fact and evidence before this court, I must state that Exhibit CW1(c) does not in itself establish the fact that the Defendant cut off electricity and water supply into the residence of the Claimant. This is especially in view of the fact that the picture of the house in itself was not in any way confirmed to be the house wherein the Claimant resides. The picture bears no house number nor an indication that same is the quarters of the Defendant which he occupies. The pictures of the electric pole and pipes are also unconnected to the assertion made by the Claimant as tne pictures tendered does not capture when and how the Defendant cut off the electricity and water supply to the said house.

Consequently, the Claimant has failed to prove upon preponderance of evidence that the Defendant cut off electricity and water supply to his residence and thereby caused him hardship, psychological pains, embarrassment or gross inconveniences.

In the light of the foregoing, relief 3 which is a claim for general damages in the sum of N10,000,000.00 is accordingly refused.

Relief 4 is a claim for cost of litigation in the sum of one million naira only (N1,000,000). With regards to this claim, Claimant tendered exhibits CW1(d), CW1(f) and CW1(i) which are letters written by the law firm of his lawyer on his behalf in demand for the Exit Package. In addition, Claimant tendered exhibit CW1(l) which is a receipt issued to him by the law firm of his counsel in the sum of N1,000,000.00 as litigation fees.

Counsel to the claimant contended that the Claimant is not entitled to the said sum particularly in view of the fact that the Claimant stated in the course of cross examination that the N1,000,000.00 was what he agreed to pay his counsel at the end of the case.

Notwithstanding the foregoing, I must posit that the award of cost is at the discretion of the court as the Supreme Court in the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) held that:

“The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 Obayagbona v. Obazee 1972 5 SC p.247” Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).

In view of the foregoing authority, it is clear to all and sundry that the Claimant is not the successful party in the instant suit having failed to establish his claim in relation to exit package.

Consequent upon the fact that the Claimant is not the successful party, this court is not inclined to exercise discretion in favour of the Claimant for the award of cost and same is accordingly refused.

Having addressed all the reliefs sought by the Claimant, it is needless to say that the sole issue formulated for the determination of this suit is resolved against the Claimant and in favour of the Defendant to the effect that in view of the evidence before this court, the Claimant is not entitled to the reliefs sought.

In the final analysis, the case of the Claimant lacks merit and same is accordingly dismissed.

Judgment is accordingly entered in respect of the substantive suit.

I then turn to the counter-claim which is an independent claim. In that regard, the court in Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, held that:

“It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act”.

As an independent claim, the Defendant counter-claims against the Claimant as follows:

(a)AN ORDER granting the defendant immediate vacate (sic) possession of its quarters/accommodation occupied by the claimant on record.

(b)AN ORDER directing the claimant to pay the sum of N328,125 to the defendant, being and representing arrears of rent owed the defendant for the period September, 2017 — November 2018 beyond the 90 days of grace he is entitled to, prior to the commencement of this suit (as amended) for his continued occupation of Defendant’s premises beyond the 90 days grace he is entitled to, and the sum of N21,875,00 being and representing rent per month for the same said quarters/accommodation from December, 2018 until possession of the same(sic) is delivered up by the Claimant to the Defendant.

(c) AN ORDER directing the claimant to repair all the fixtures and fittings he has damaged in the defendant’s quarters/ accommodation in his occupation and to generally put the said premises back to tenantable condition as he originally met it.

The highlight of facts in relation to the foregoing claims is that the Claimant occupies a 3 bedroom apartment (Flat 7, Camp A), Property/Quarters of the Defendant and the Claimant was disengaged from the employment of the Defendant since 2^nd May, 2017. Upon his disengagement, he had 90 days grace to stay in the accommodation after which he is to vacate same. The Defendant/Counter-Claimant averred that the Claimant has continued to stay in the quarters for over 19 months after the expiration of the 90 days grace even after serving the Claimant notice to vacate.

The Claimant in reaction to the claim contends that he is a legal occupant of the premises same having been assigned to him by the Defendant. He posited that his pension was paid in June 2018 while the Defendant still owes him exit package.

Counsel to both parties argued for and against the counter-claim as captured in the substantive suit. For sake of reiteration however, Counsel to the Defendant/Counter-Claimant contended that the Claimant was disengaged on 2^nd May, 2017 as he had admitted in paragraph 3 of his statement on oath and added that the Claimant is not entitled to a lien over the said property in view of the fact that he is not entitled to Exit Package having not served in the Defendant’s company for 5 years as required by Exhibit D3. Counsel also referred to Article 8.2, 8.8 and 8:10 of Exhibit CW1(h) on the provision of accommodation for the Claimant. He also referred to Exhibits CW1(j) and D6 as valid notices issued to the Claimant to vacate the premises.

Counsel to the Claimant in reaction urged the court to consider section 8.10 along with section 13.2.1.10 of Exhibit CW1(h) as same is the basis upon which the Claimant is still in retention of the property. Counsel added that a look at Exhibit D4 shows that the Claimant was paid his pension almost one year after his disengagement.

In view of the foregoing, I have considered the counter claim and the exhibits tendered in relation to same. I have also taken cognizance of the argument of counsel to both parties as submitted in their final written addresses and the resolutions made in the substantive suit. Consequently, I find that the sole issue for the determination of the Counter-claim is to wit:

Whether or not the Defendant/Counter-Claimant is entitled to the reliefs sought.

In resolving the sole issue, I must posit that the law is settled that the burden of proving the counter claim is on the Defendant as the court held in the case of AFOLAYAN v. ARIYO & ANOR (2014) LPELR-22775(CA) that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence.” Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B).

Having said that, the sole issue is to be resolved upon the consideration of the reliefs sought by the Counter-Claimant vis-à-vis the evidence available before this court.

With regards to relief 1, Defendant/Counter-Claimant wants the court to make an ORDER granting the defendant immediate possession of its quarters/accommodation occupied by the claimant on record.

In support of the claim, Defendant tendered exhibit D6 and also relied on Exhibit CW1(j) tendered by Claimant to posit that notice to vacate has been issued to the Claimant. I have taken a look at the said exhibits and find rightly so that they are notices to the Claimant to Vacate Flat 7 – Camp “A”. Exhibit CW1(j) was perhaps the first notice served on the Claimant as it is dated 26^th of January, 2018 although it is headed as “Final Notice To Vacate”. Exhibit D6 on the other hand is dated the 10^th of April, 2018 and also headed as “Final Notice To Vacate”.

The Claimant is not contending that the notices were not served on him, rather, he is contending that he cannot vacate the premises when the Defendant has not paid him Exit Package in accordance with the condition of service in view of the provision of section 8.10 of Exhibit CW1(h).

It is consequent upon the contention of the Claimant that I find it apposite to consider the said provision which reads thus:

“Having been paid his entitlement, if an employee fails to vacate his quarters after the expiration of the grace period of ninety (90)days, recovery process shall be commenced against him”

In relation to the foregoing, counsel to the Claimant urged the court to consider the provision along with section 13.2.1.10 which provides thus:

“Any staff exiting the company by reason of age or tenure shall be entitled to the following benefits: Transport/Repatriation allowance (20% of one year total emoluments) Terminal Benefits (30% of one year total emoluments)”

In view of the foregoing provisions, I find that the effect of section 8.10 is that the recovery of the property provided for an employee is dependent on being paid his ‘entitlement’. Although there was no contention as to what the ‘entitlement’ mentioned in section 8.10 comprises. However, the entitlement which the Claimant is claiming for upon which he has refused to vacate the property has been considered by this court in the substantive suit and this court came to a conclusion that the Claimant has failed to establish that he is entitled to same especially in view of his admission that he had been paid his terminal benefits upon his retirement from PHCN and in view of the contradictions in the Claim for Exit Package.

Upon the holding that the Claimant is not entitled to exit package, the next factor to be considered is whether the Claimant has exhausted the 90 days grace period which he is said to enjoy by virtue of ExhibitCW1(h). In this wise, I reckon that counsel to the Defendant/Counter-Claimant referred to sections 8.2, 8.8 and 8.10 of Exhibit CW1(h). While I have earlier reproduced section 8.10, section 8.2. provides thus:

Employees could be provided with accommodation to pay appropriate economic rent as may be determined from time to time.

While section 8.8 provides thus:

An employee disengaged from the company services will be given appropriate notice to vacate the Company’s quarters.

Upon consideration of the foregoing provisions, the next question is when does the 90 days grace period commence and has it elapsed to warrant an order of immediate possession in favour of the Defendant? The answer to the foregoing question is predicated on the determination of when the Claimant was disengaged and the proof of when the Defendant officially disengaged the Claimant is Exhibit CW1(k) which is dated 2^nd May, 2017. The Claimant however posited that he still worked with the Defendant till July 2017 as he tendered Exhibit CW1(b) which were his pay advice for the months of May and June. He also tendered Exhibit C2 which is a memorandum signed by the MD of the Defendant, nominating the Claimant to participate in a 5-day workshop from May 22^nd to May 26^th 2017 and also Exhibit C3 which is a Router dated 23/6/2017 stating that a voucher be raised in the name of the Claimant.

To that end, it is safe to conclude in view of the foregoing exhibits that while the Claimant was officially disengaged by the Defendant on 2^nd May, 2017, the Defendant had reasons to have the Claimant continue work till, July 2017 and is upon that basis that this court agrees with the Claimant that he was actually disengaged by the Defendant on the 6^th of July, 2017. In that case, the 90 days grace enjoyed by the Claimant to stay in the Defendant’s property commenced on the 7^th of July, 2017 and consequently elapsed on the 6^th of October, 2017.

Upon the grace period coming to an end, the Defendant/Counter Claimant had the right to notify the Claimant to vacate the premises which was done vide exhibits CW1(j) and D6.

In view of the foregoing, it is axiomatic that there is no basis upon which the Claimant is entitled to continue to be in occupation of the premises provided for him by the Defendant. Consequently, the Defendant/Counter-Claimant is considered to be entitled to relief 1 and same is granted to the effect that this court makes an Order granting the Defendant/Counter-Claimant immediate possession of its quarters/accommodation occupied by the claimant on record.

Relief 2 is for “an ORDER directing the claimant to pay the sum of N328,125 to the defendant, being and representing arrears of rent owed the defendant for the period September, 2017 — November 2018 beyond the 90 days of grace he is entitled to, prior to the commencement of this suit (as amended) for his continued occupation of Defendant’s premises beyond the 90 days grace he is entitled to, and the sum of N21,875,00 being and representing rent per month for the same said quarters/accommodation from December, 2018 until possession of the same(sic) is delivered up by the Claimant to the Defendant”.

Arising from the argument of counsel to the Defendant/Counter-Claimant, the said claim is also predicated on the provision of section 8.2 which is earlier reproduced above. However, upon a consideration of the said section, I must state that the effect of the provision is to the effect that the Defendant/Counter-Claimant must have stipulated the economic rent as at the time the accommodation was provided for the employee if the Defendant/Counter-Claimant intends to charge economic rent on the property.

In addition to the foregoing, I must state that the claims made in relief 2 falls within the realm of special damages which must be specifically pleaded and proved as the said relief is for the sum of N328,125.00 which is claimed for September, 2017 — November 2018 and the sum of N21,875,00 for every month from December, 2018 until possession is delivered. In this regard, the court in UDOFIA v. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS. (2011) LPELR-4055(CA) held that:

“…it is the law that a party who claims special damages must not only plead it specifically, he must also prove it strictly.” Per OREDOLA, J.C.A. (P.9, Para.F).

In view of the absence of proof that the Defendant/Counter-Claimant stipulated the economic rent at the time the Claimant was provided with the accommodation in question, I must state that the Defendant/Counter-Claimant has failed to prove the sum claimed as economic rent upon the cessation of the 90 days of grace enjoyed by the Claimant.

Consequently, I find that there is no basis upon which relief 2 can be granted and same is accordingly refused.

Relief 3 is for an ORDER directing the claimant to repair all the fixtures and fittings he has damaged in the defendant’s quarters/accommodation in his occupation and to generally put the said premises back to tenantable condition as he originally met it.

The foregoing claim is predicated upon the assertion by the DW1 as sole witness for the Defendant/Counter-Claimant that the Claimant has rendered the Defendant/Counter-Claimant’s quarters dilapidated with all its fixtures out of place and same requires renovation to prevent total collapse.

Claimant reacted by denying the allegation and positing that the said property is not dilapidated. In the face of such denial, it becomes incumbent upon the Defendant/Counter-Claimant to prove that the property is indeed dilapidated and that same is caused by the Claimant as it is trite and settled principle of law that he who asserts must prove. See INTERCONTINENTAL BANK PLC v. DAYEKH BROTHERS LTD (2014) LPELR-23485(CA).

In the light of the foregoing, I find that the Defendant/Counter-Claimant has failed to present any scintilla of evidence in support of the assertion that the Claimant damaged fixtures and fittings in the accommodation given to him. Consequent upon the said failure, there is no basis upon which this Court can grant the order sought in relief 3 and same is accordingly refused.

Having addressed all the reliefs sought by the Defendant/Counter-Claimant, the sole issue formulated for the determination of the counter claim is resolved partially in favour of the Defendant/Counter Claimant to the effect that in view of the evidence before this Court, the Defendant/Counter-Claimant is entitled only to relief 1 which has been granted.

In the final analysis, the counter-Claim of the Defendant is meritorious only to the extent in which relief 1 has been granted. Other reliefs sought by the Defendant/Counter-Claimant lacks merit and they are accordingly dismissed.

Judgment is accordingly entered in respect of the Counter-claim

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.