IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: May 15, 2019 Suit No: NICN/IB/25/2015
Between:
Mr Falana Adewale David —————————- Claimant
And
Zenith Securities Limited
People Plus Management Service Limited ————————— Defendants
Representation:
P.T. Obayi for the claimant.
Oladipo Olasope with T.A. Gbemi Esq & A. Akinleye Esq. for the defendants.
COURT’S JUDGMENT
On May 11, 2015 the claimant filed this complaint and his Statement of Facts together with other initiating processes against the defendants seeking for the following reliefs:
Declaration that the sudden termination of his employment was wrongful.
Declaration that the continuous withholding of his entitlement by the 1st Defendant is wrongful and unconstitutional despites repeated demand by the Claimant.
The sum of N2,050,000, being the total sum of both transport and out of station allowances owned the Claimant from December 2008- till the day when his appointment was purportedly terminated.
The sum of N5Million being the entitlement of the Claimant from 2004-May 2012 when his employment was terminated.
N20Million only, being damages for the unlawful withholding of the Claimant’s entitlement after his disengagement from the employment of the Defendants despite repeated demand.
In response, the defendants entered appearances through their counsel and filed their Statement of Defence and other processes in line with the Rules of this Court also counter claim against the claimant:
The sum of N31, 674.21; being the debt the claimant owed the defendants and which said sum remains outstanding.
CLAIMANT’S CASE AS PLEADED
The case of the claimant is that he was an employee of the defendants before his appointment was suddenly terminated. He avers further that during the period of his employment with the defendants; he was very hardworking, honest and diligent in his duties; as a result, he was promoted and seconded to work in various offices. He went onto aver that during the period of his employment with the defendants, he was entitled to transport and out of station allowances which were not paid to him and that the defendants still refused to pay same even after repeated demands. To the clamant, the termination of his employment by the defendants was wrongful and prayed for redress.
DEFENDANTS’ CASE AS PLEADED
The case of the defendants on the other hand, is that the claimant was formerly employed by the 1st defendant before his employment was transferred to the 2nd defendant. The defendants aver again that after the defendants were no longer in need of the service of the claimant, they terminated his employment in accordance with the terms and condition of his employment. They went on that the claimant is not entitled to any arrears of transport and out station allowances from the defendants as the defendants did not make any provision in their books for such and that they never entered into any agreement with the claimant on it and maintained that the claimant is in fact, indebted to the defendants.
During hearing of the case, the claimant testified for himself as CW1 while Mr. Salako Olutayo Babajide testified for the defendants as DW 1. In line with the Rules of this court, counsel were directed to file their final written addresses by the Court and they both complied with the direction.
THE DEFENDANTS’ WRITTEN ARGUMENTS
In his final written address, counsel to the defendants formulated the following issues for determination of the Court:
Whether the termination of the employment of the claimant was wrongful
Whether the claimant is entitled to N2,050,000.00 being the total sum of both transport and out of station allowances owed the claimant from December, 2008 till his employment termination date.
Whether the claimant is entitled to the sum of N5Mfrom 2004 to May 2012 when his employment was terminated.
Whether the claimant is entitled to damages of N20Million for unlawfully withholding the claimant’s entitlement.
Whether the claimant’s entitlement was unlawfully withheld.
Whether the defendant is entitled to its counterclaim of N31,674.21
Arguing issue one, counsel submitted that the defendants have the right to terminate the claimant’s appointment suddenly and without reason; the only caveat is that the rules for termination must be complied with. He went on that the defendants have satisfied the requirement of the law having paid salary in lieu of notice as shown in Exhibit D.15. This is also evidenced in the defendants’ pleadings where they stated that the services of the claimant were no longer needed. Counsel continued that the claimant also testified under cross-examination that no reason was given in his termination letter, except that his services were no longer needed. That it is trite that employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavour, citing the cases of Baba v. NCATC [1991] 4NWLR (Pt. 19) 388 at 420 WEJIN v. Asaka Cement [1991] 8NWLR (Pt. 211) 608 at 615; Ativie v. Kabelmetal (Nig.) Ltd.[2008] 10 NWLR, (Pt. 1095) 399 and WAEC & Ors v. Ikang [2011] LPELR-5098 (CA).
To counsel, the plaintiff/applicant is enjoined by law to place before the Court, the terms and conditions of his contract of employment and then go on to prove in what way, the said terms were breached by the employer; when he complains that his employment has been wrongfully terminated, citing Aji v. Chad Basin Development Authority & Anor [2016] FLWR(Pt. 824) SC175.Counsel submitted that the claimant has not discharged the burden placed on him by section 131 (1) and (2) of the Evidence Act, 2011; citing Nigerian Gas Co. Ltd v. Duduaola [2005] 18 NWLR (Pt. 975) 292 and maintained that the termination of the claimant’s employment was proper.
Arguing issue two of whether the claimant is entitled to N2,050,000.00 as his transport and out of station allowances; counsel submitted that the only document tendered by the claimant to show his entitlements is his letter of employment ExhibitC.1 and that the said letter showed that the claimant is entitled to annual transport allowance of 41,000 naira; he admitted under cross-examination. He further contended that under cross examination, the claimant stated that he did not write a letter to request for the allowances of N1000 per day he is claiming but agreed that Exhibit C.1 states that his transportation per annum is N41, 000.00. Counsel submitted again that the court construing the relationship between an employee and an employer under a contract, held that this is confined to the plain words and meanings to be derived from the written contract; citing Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 504 @ 521-522, paragraphs G-E (CA); Osiyemi v. Societe Generale Bank Ltd. [2001] 11 NWLR (Pt. 725) 563. Counsel maintained that the contract of service in question does not show that the claimant is entitled to N1,000.00 daily as transportation allowances from inception of his employment until the date he was terminated, hence the claimant is not entitled to same.
Arguing issue three of whether the claimant is entitled to N5Mfrom May 2004 to 2012 when his employment was terminated, counsel submitted that assuming without conceding that the claimant’s employment was wrongfully terminated, he would only be entitled to what would have been due to him for the period of the notice; citing UBN Plc. v. Toyinbo [2008] LPELR – 5056 (CA) and to their Exhibit D.15.
Arguing issues four and five of whether the claimant’s entitlement was unlawfully withheld and whether the defendants are entitled to their counterclaim of N31,674.21;
Counsel submitted that general damages are compensatory damages for harm resulting from the wrong complained of by the victim. He went on that the claimant has failed to prove the vital requirements for wrongful termination and entitlements, therefore; this damages of N20Million does not result from any breach or consequence of act which will entitle the claimant to its award, citing Husseni v. Mohammed [2015] 3 NWLR (Pt. 1445) 100 and Ajagba v. Babalola [2010] LPELR (3668)CA.
Arguing issue six of whether the defendants are entitled to their counterclaim of N31,674.21; counsel submitted that the claimant/defendant to the counter-claim has no oral or written evidence to the counter-claim. This is so because the claimant did not file any written witness’ deposition to his reply to statement of defence and defence to counterclaim. Therefore, their counter-claim stands uncontroverted and that this Court is bound to give judgment on it; citing NHDB v. MUMUNI [1977] 25C 57; Barau v. Cubitts [1990] 5NWLR (Pt. 152) 630; Dabub v. Kolo [1993] 12SCNJ and NIPOST v. Musa [2013] LPELR – 20780 (CA).
CLAIMANT’S WRITTEN ARGUMENTS
The claimant’s counsel filed his final written address and formulated the following issues for determination of the Court:
Whether with the pleadings, documents and evidence before this Court, claimant has proved his claim against the Defendants.
Whether going by the pleadings and evidence led by the defendants in support of same, defendants have proved their Counter-Claim.
Before arguing issue one; counsel sought the leave of Court to address the issue of non-filing of Written Statement on Oath of the claimant with his reply to Statement of Defence and defence to Counter-Claim of the Defendants. See issue 6 of the defendants’ final written address.
To the claimant’s counsel, the general law is that it is not necessary for a claimant to file a reply to a statement of defence and by extension further statement on oath if his only intention in doing so is to deny the allegations that the defendants made in the statement of defence especially where the facts pleaded in the statement of defence are the same facts relied upon to prove the counter-claim, citing Akerdolu v. Akinremi [1989] 3 NWLR (Pt. 108) 164. He urged the Court to disregard the defendants’ argument on this issue since the Claimant denied been aware of the terminal benefit and indebtedness as contained in Exhibit D15 during his cross-examination on March 10, 2016.
Arguing the first issue of whether the claimant has proved his claim against the defendants, counsel to the claimant answered this in the affirmative; maintaining that the claimant did that from the totality of his Documents (Exhibits) and his evidence as CW1 before the Court. He contended that it not in doubt that the claimant was in the employment of the defendants for 9 years; from January 16, 2003 (see Exhibit C.1) to April 30, 2012 when he was terminated (see Exhibit C4). He went on that Exhibits C1 & C2 contained the terms and conditions of the claimant’s appointment with the defendants. To the claimant, he was wrongfully terminated, while DW.1testified that the claimant was paid in lieu of notice but that DW.1 could not prove this fact. Counsel said that it is trite law that where a party failed to prove any claim before the Court, such claim is bound to fail; referring to Longe v. FBN[2010] 3 SCM, 85; paragraphs 9 & 15 of the Statement of Cause of Action, paragraphs 4 & 9 of reply to statement of defence and to paragraphs 15 & 16 of Statement of Oath of the claimant and then to the case of Hamza v. Kure[2010] LPELR 1351 SC. Counsel noted that the documents relied on by the defendants to convince the Court that salary in lieu of notice was paid to the claimant; which is Exhibit D.15 was a document that the claimant became aware of for the first time in Court. Same was never acknowledged by the claimant despite the fact that it was purportedly written 3 months after the claimant’s appointment had been wrongly terminated and 1 month after Exhibit C.5 was written to the defendants by the claimant.
Counsel went on that by the claimant’s Exhibit C3; paragraphs 7,9 – 12 and 14 – 17 of the Statement of Facts and paragraphs 5 &10 – 13 of reply to the Statement of Defence and defence to counter-claim including paragraphs 9 -12, 14 &16 -19 of the claimant’s Statement on Oaths; all pleaded and proved the fact that the claimant is indeed entitled to the sum of N1,000.00 out of station allowances per day.
On notice to produce, the counsel referred the Court to Section 167 (d) Evidence Act 2011; Framo Nigeria Ltd. v. Daodu [1993] 3 NWLR (Pt. 281) 372; Ajao v. Ademola [2005] NWLR (Pt. 913) 636; Adediji v. Kolawole [2004] All NWLR (Pt. 214) 91 @ Pg. 108 Paragraphs C-D.5.13; Anyanwu & Ors. v. Uzowuaika & Ors.[2009] 10 SCM @ Pg. 18 Paragraphs F-G.
Counsel went on that given the length of years which the claimant was in employment of the defendants, and the nature of the provision of section 19 of the National Industrial Court Act, 2006; the law permits the Court to compensate a party in the circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter the Court has jurisdiction to hear. To counsel, the sum of N103,095.55 does not represent the amount to be paid to a party who had worked for 9 years. He maintained that the claimant has proved his case and he is entitled to his claims.
Counsel submitted that damages are those compensations which the law implies in every breach and on every violation of a legal right, citing NDIC v. K.B. & C.S. Ltd. [2007] All FWLR (Pt. 357) 916. To counsel, the claimant need not plead or prove how he came about the sum of Twenty million he is claiming as damages for the unlawful withholding of his entitlement by the defendants. He went on that the manner in which damages are quantified is by relying on what would be the opinion and judgment of a reasonable man in the circumstance of the case. Thus, where the claimant avers in his pleadings that some damages has been suffered without being in a position to calculate its value specifically, damages would be presumed to have resulted naturally from the action of the defendants; citing NICON Hotels Ltd. v. NDC Ltd [2007] 13 NWLR @ Pgs 269-270 paragraphs H-D; Gari v. Sarafina Nig. Ltd.[2008] All FWLR (Pt. 399) 434 @ 477; Rockonoh Properties Co. Ltd. v. NITEL [2001] FWLR (Pt. 885).
Arguing issue two of whether the defendants have proved their Counter-Claim, counsel submitted that while Exhibit D.13 is a worthless piece of evidence, because aside that it was not relevant to this case, same was not tendered by a proper party. To counsel, Exhibits D1, 2, 9 & 12 are same Exhibits with those tendered by the claimant. He went on that Exhibits D3 – 8, 10 &13 are not relevant too. Counsel also submitted that Exhibit D15 and the counter – claim of the defendants are after thoughts by the defendants in their bid to deprive the claimant of his entitlement which he deserves, having worked for 9 years with the 1st defendant. He continued that if Exhibit D15 was really served on the claimant, it ought to be acknowledged but that it was not. Counsel urged the Court to discountenance the case of the counter-claim of the defendant with all the authorities cited in support of same for not being applicable in this situation. He urged the Court to dismiss the Counter – claim of the defendants.
COURT’S DECISION
I have gone through the facts of this case, the written arguments of counsel to the parties and their cited authorities; from all of this, I am of the considered view that this Court needs to resolve only two issues between the parties on this matter. The Issues are:
Whether the termination of the claimant’s appointment was wrongful and that he is entitled to the sum of N2,050,000.00 as his transport and out of station allowances from December 2008 to May 2012, the sum of N5Million as his terminal benefit from 2004 – May 2012 when his employment was terminated and to the sum of N20Million as damages for unlawfully withholding his entitlements.
Whether the defendants’ counter-claim against the claimant for the sum of N31,674.21 as outstanding debt has been proved to Court’s satisfaction.
Before going to the merit of this case, it is worthy of note that while the claimant endorsed four reliefs on his complaint, paragraph 20 of his Statement of Facts contains 5 reliefs. The law is that, averments in Statement of Claims or Facts supersede the endorsements on the Writ of Summons, which is the complaint in this case. Therefore, it is the reliefs of the claimant as pleaded in his Statement of Facts that are reflected above and not those endorsed on the claimant’s Complaint.
In cases of private employment otherwise known as master and servant relationship, the first hurdle to cross by the Court is to examine what the terms and conditions of service or of the employment are in order to determine the contractual relationship between the employer and the employee. In doing this, the Court is bound to look at the letter of appointment together with any service regulations connected with the employer’s establishment including the provisions of any Statute or Decree, which relates to or regulates the service conditions of the Establishment; see -Odiase v. Auchi Polytechnic, Auchi [2015]60 NLLR (Pt. 208)1 CA at 23-24, paraF-A. In other words, when an employee in a private employment complains that his employment has been wrongfully terminated; he has the onus to place before the Court, the terms and conditions of his employment and to also prove to the Court, the manner in which the said terms and conditions were breached by the employer; see Afribank (Nig.) Plc.v. Osisanya [2000]1 NWLR (Pt. 642) 592.
On whether the termination of the claimant’s appointment was wrongful
It is the contention of the claimant that the termination of his employment by the defendants is wrongful. Before the Court can make such declaration in this instance, the claimant has an obligation to satisfy the Court that the said termination was in breach of the terms and conditions of his contract of employment. Once there is compliance with the terms and conditions of the contract of employment, then the determination of that employment cannot be said to be wrongful; see West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 185 paragraphs A-D.
In proving his case before the Court, the claimant tendered in evidence and relied on the following documents:
Letter of Offer of Employment dated 13/1/2003 – Document C.1
Letter of confirmation of Employment dated 21/6/2004 – Document C.2
List of posting dated 5/12/2008 – Document C.3
Termination of Appointment Letter dated 30/4/2012 – Document C.4
Letter of Demand dated 28/6/2012 – Document C.5.
It is my finding, therefore; that the terms and conditions of the claimant’s employment with the defendants are as stated in Documents C.1 and C.2; which are the claimant’s letter of employment and the letter of confirmation of the said employment.
Paragraph two of the Letter of Confirmation of Employment, Document C.2 at page 15 of the Court’s record provides thus:
Please note that upon this confirmation you may resign your appointment with the company subject to giving one-month notice in writing or payment of one-month gross salary in lieu of notice.
In other words, the employment of the claimant can be determined by giving a month written notice or by paying a month’s gross salary in lieu of notice. From the content of the letter of termination of the claimant’s employment, Document C.4 at page 17 of the record; the service of the claimant was determined with immediate effect on April 30, 2012. This means that no notice was given to the claimant as required in the terms and conditions of his employment with the defendants neither was any reference made to payment of one-month gross salary in lieu of notice in Document C.4.
However, in Document D.15 frontloaded and relied on by the defendants at page 57 of the record; titled “Re termination of appointment” the sum of N6,200.00 is stated under Entitlement-B thereon to be “in lieu of Notice. In the letter of Offer of Employment, Document C.1, which the defendants too relied on as Document D.1; the total package of the claimant per annum for his employment with the defendants is the sum of N367,953.00; see pages 13 and 42 of the record respectively. This means that the gross salary of the claimant per month is worked out this way: N367,953.00 divided by 12months gives us the sum of N30,662.75. Thus, by the defendants’ own pleading; the claimant’s monthly gross salary is N30,662.75. Therefore; it is wrong for the defendants to pay the claimant the sum of N6,200.00 as his gross salary in lieu of notice as shown in Document D.15.
What’s more, the claimant’s position on Document D.15 is that, this document was not served on him and that he saw it for the first time when the defendants entered their defence. The defendant did not even attempt to satisfy the Court that Document D.15 was actually served on the claimant and that he received it. Furthermore, the claimant’s employment was determined by the defendants on April 30, 2012 via Document C.4. On June 28, 2012; counsel to the claimant wrote Document C.5 to the General Manager of the 2nd defendant, seeking for the payments of the claimant’s terminal benefits after serving the defendants for ten years without any query, see page 18 of the court’s record. Thereafter, the defendants generated Document D.15 dated July 2, 2012 stating the claimant’s indebtedness and entitlements; see page 57 of the record. To the claimant, the content of Document D.15 is an afterthought of the defendants to ensure that he does not receive any terminal benefit from them.
From all these facts before the Court, I find and hold that Document D.15 was not served on the claimant by the defendants. In addition, I agree with the claimant and hold that Document D.15 was generated merely in response to the letter of demand for payment of end of service entitlements of the claimant by his counsel via Document C.5, and that Document D.15 was not served on the claimant. In the circumstances, I hold that Document D.15 has no evidential value in this case and it is hereby expunged and discountenanced in this judgment. Again I hold that the termination of the employment of the claimant by the defendants with immediate effect is contrary to the terms and conditions of his employment. Therefore, the said termination of employment by the defendants is wrongful.
Nonetheless, in a contract of employment without statutory flavour, where the terms and conditions provide for one month’s salary in lieu of notice whenever the contract is terminated, the employee who is wrongly terminated will be entitled to his salary in lieu of notice for the month for his wrongful termination and also to any other legitimate entitlement due to him at the time the employment was brought to an end. See the Supreme Court decisions in the cases of Ifeta v. S.P.D.C. (Nig.) Ltd. [2006]8 NWLR (Pt. 983) 585 SC and UBN v. Chinyere [2010]10 NWLR (Pt. 1203) 453. See also the case of FMC, Ido Ekiti v. Kolawole [2012]All FWLR (Pt. 653) at 2015. In addition, I hold that the claimant is entitled to be paid at least the sum of N30,662.75 as compensation in lieu of a month’s notice for the determination of his employment by the defendants.
ON THE CLAIMANT’S MONETARY CLAIMS:
For the sum of N2,050,000 for transport and out of station allowances
In paragraphs 10, 11 and 14 of the Statement of Facts, the claimant pleaded that throughout the duration his service for the defendants at visafone office from December 2008 till when his job was terminated on April 30, 2012; he was entitled to the sum of N1,000.00 daily as transport allowance and also to the sum of N1,000.00 daily as out of station allowance based on the normal practice and procedure of the Defendants but that he was never paid. He continued that whenever he demanded for these allowances, his superior would assure him that they shall be paid to him but that he should continue his duties. Furthermore, in paragraph 12 of his reply to the Statement of Defence and defence to counter-claim, the claimant pleaded that he spent his own money for transportation and gave the defendants notice to produce documents showing that he paid all these expenses and incurred them on behalf of the 1st defendant. And then, at page 93 of the record is the notice to produce: Operational procedure manual of Zenith Bank in Visafone Cash Center, Ibadan; issued to the defendants by the claimant.
The defendants did not produce this document and so, counsel to the claimant did argue at paragraphs 5.11 and 5.12 of the claimant’s final written address that only the defendants are in possession of the document in question and that the production of same would have helped the Court to decide one way or the other on this relief if same had been produced. He contended further that the failure of the defendants to produce same raised a presumption of withholding of evidence against the defendants and urged the court to invoke the provisions of Section 167 (d) of Evidence Act, 2011 against the defendants.
During cross –examination of DW.1, the defendants’ witness stated thus:
It is the responsibility of the bank to move the cash and these movements are recorded by the bank. When the claimant was seconded to visa fone by the bank he was not entitled to transport allowance within the same city because that allowance is already built into his salary.
From all this facts before the Court, the claimant has not satisfied the Court that both parties agreed on the payment of transportation and out of station allowances from the terms and conditions of his contract, neither has he proved the practice and procedure of the Defendants in paying these allowances to their employees as he pleaded and contended. More so that the DW.1 testified under cross-examination that the claimant is not entitled to another transport allowance within the city as this has been built in his salary. This evidence is corroborated by the content of the claimant’s letter of offer of employment, Documents C.1 & D.1; as it is stated in it that the claimant’ transport allowance is 41,000.00. Therefore, I find that the question of withholding evidence by the defendants does not arise at all as the claimant; who asserts that it is the practice and procedure of the defendants to pay the allowances in question has the onus of proving same. He cannot depend on the weakness of the defendants’ defence (their inability to produce document requested for) to prove his case as he rises and falls on his own case; see West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 At 199 paragraphs C-E. This is because, address of counsel, however brilliant, cannot take the place of evidence that was not given; see UBN Plc & Anor v. Ayodare & Sons (Nig.) [2007] All FWLR (Pt. 383)1 at 42 paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 1623.
In that instance, I hold that the evidence before the Court does not support the invocation of the provision of section 167 (d) of Evidence Act, 2011 on presumption of withholding evidence against the defendants and I, accordingly decline invoking same. In addition, I hold that it is not the duty of this Court to speculate on the content of an imaginary document that was never tendered in evidence to hold for the claimant; see the case of Federal Mortgage Bank v. Ekpo [2005] All FWLR (Pt. 248)1667 at 1681.
Moreover, it is the law that a person on whom notice is served to produce document is not obliged to produce the same, neither can he be coerced to tender in evidence; the said document named in the notice. In such a case, the party that issued the notice, having been satisfied that the opponent has failed to produce the required document, can tender the secondary copy of that document in evidence as exhibit; see the hold of Court in Yusuf v. Obasanjo [2006] All FWLR (Pt. 294) page 387 at 476, paragraphs B-F. Also in Brawal Shipping Nigeria Ltd v. Ometraco International Ltd [2011] 10 NWLR (Pt.1255) 290 at page 303 paragraph E; it is reiterated that averment in pleadings are not evidence. Even if it was duly pleaded, the averments would have been deemed to be abandoned, unless it was admitted or denied. Additionally, since the claimant has failed to establish that he is entitled to transport and out of station allowances in his contract of employment, I hold that the claimant is not entitled to the sum of N2,050,000 for transport and out of station allowances from the defendants.
25. b. On the claimant’s claim for the sum of N5Million as Terminal Benefits.
Counsel to the claimant has not justified the basis of this claim from the content of Documents C.1 and C.2 neither has he shown the Court any document in which his terminal benefits are stated. The Court does not even know how the claimant arrived at the lump sum of the sum of N5Million as his end of service entitlement. Consequently, I hold that the claimant has not discharged the burden of proving this claim; thus, the said sum of N5Million terminal benefit is hereby dismissed.
c. On the Claimant’s Claim for the Sum of N20Million as Damages for Unlawful Withholding of His Entitlements
I have held above that the claimant has failed to prove that he is entitled to his terminal benefit of N5million as he could not support this claim with the parties’ agreement; hence, the claim has been dismissed. In the circumstances, the claimant has not satisfied the Court that his terminal entitlement of N5million have been withheld illegally by the defendants. Therefore, I hold that the claimant is not entitled to claim from the defendants, the sum of N20Million as Damages for Unlawful Withholding of His Entitlements. Since the claimant’s claim for terminal benefit has failed; the claimant cannot claim damaged against the defendant for withholding the non-existing Terminal benefit. The law is that when primary claim fails, the claim for damages must fail. One can add something to something but one cannot add something to nothing, because there will be nothing to receive the ‘something’. The ‘something’ which will have nothing to support it will fall away following Newton’s scientific law of gravity. See the case of Owners M/V Baco Liner v. Adeniji [1993] 2 NWLR (Pt. 274) 203. I further hold that this claim failed and it is hereby dismissed.
ON WHETHER THE DEFENDANTS HAVE PROVED THEIR COUNTER CLAIM
A counter claim, otherwise called a cross action or counter action is a separate and independent action by a defendant who has some reliefs against the plaintiff or claimant. Being a cross action or the counter-action, it is in the same position as an action filed by the claimant and it is guided by the same rules regarding pleadings. The burden of proofing a counter-claim is thus, on the counter-claimant; in the same manner as required in any civil claim, which is on the preponderance of evidence, see Afolayan v. Ariyo [2015] All FWLR (Pt. 769) CA 1129 particularly his Lordship Akeju JCA’s holding at 1090- 1091 paragraphs H-B.
In paragraphs 31 of the Statement of Defence and Counter-Claim, the defendants/counter-claimants are counter-claiming the sum of N31,674.21 as outstanding debt; relying on the content of Document D.15 titled ‘Re: Termination of Appointment’ as the basis of their claims before the Court. See also the defendants/counter-claimants’ pleadings in paragraphs 32 to 33 of the statement of Defence and Counter-claim. On the other hand, in paragraph 14 of the reply to Statement of Defence and defence to counter-claim, the claimant/defendant pleads that he is not owing the defendants/counter-claimants the sum of N31,674.21 or any money at all. See also his further averments against this counter-claim in paragraphs 16 & 17 of the same process.
I have held in paragraph 21 of this judgment that Document D.15;the letter dated July2, 2012 and titled ‘Re: Termination of Appointment’ has no evidential value and I have rejected it in evidence. Besides, the defendants/counter-claimants could not substantiate the indebtedness of the claimant/counter-defendant as contained in this document vis-à-vis the terms and conditions of the contract of employment between the parties. The law is that he who assert has the burden to proof. In as much as the defendants/counter-claimants too failed to prove their entitlement to the counter-claim to the satisfaction of the Court; I find and hold that the defendants/counter-claimants have failed to discharge this burden on their counter-claim. I again hold that the defendants/counter-claimants are not entitled to the counter-claimed sum of N31,674.21. The counter-claim in question is accordingly dismissed.
On the whole, I hold and order as follows:
I hold that the termination of the claimant’s employment is wrongful
I hold that the claimant is not entitled to N2,050,000.00 as transport and out of station allowances as this was never agreed to by the parties.
I hold that the claimant is not entitled to the sum of N5Mas his terminal benefit because this was not proved by him.
I hold that the claimant is not entitled N20Million general damages as no terminal benefit was proved by him to be withheld by the defendants.
I hold that the defendants’ are not entitled to their counter-claimed sum of N31,674.21 as they failed to prove same.
I order that the claimant is to be paid his one month’s gross salary in lieu of the termination of his employment without notice by the defendants
Judgment is entered accordingly
I make no order as to cost.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
